                   COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bray and Senior Judge Baker
Argued at Richmond, Virginia


DWAYNE CHRISTOPHER HOPKINS, S/K/A
 AURELIOUS HOPKINS, A/K/A DWAYNE HOPKINS
                                           MEMORANDUM OPINION * BY
v.   Record No. 0644-98-2                   JUDGE LARRY G. ELDER
                                                APRIL 27, 1999
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Thomas N. Nance, Judge

          Patricia P. Nagel, Assistant Public Defender
          (David J. Johnson, Public Defender, on
          brief), for appellant.

          Eugene Murphy, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Dwayne Christopher Hopkins (appellant) appeals from his bench

trial conviction for possessing cocaine.   On appeal, he contends

that the trial court erroneously (1) denied his motion to suppress

based on an illegal seizure and (2) admitted a certificate of

analysis into evidence without proof that it had been filed as

required by Code § 19.2-187.   For the reasons that follow, we

disagree and affirm appellant’s conviction.




     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
                                  I.

                     DENIAL OF MOTION TO SUPPRESS

     At a hearing on a defendant’s motion to suppress, the

Commonwealth has the burden of proving that a warrantless search

or seizure did not violate the defendant’s Fourth Amendment

rights.    See Simmons v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d

656, 659 (1989); Alexander v. Commonwealth, 19 Va. App. 671, 674,

454 S.E.2d 39, 41 (1995).   On appeal, we view the evidence in the

light most favorable to the prevailing party, granting to it all

reasonable inferences fairly deducible therefrom.     See

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,

48 (1991).   “[W]e are bound by the trial court’s findings of

historical fact unless ‘plainly wrong’ or without evidence to

support them[,] and we give due weight to the inferences drawn

from those facts by resident judges and local law enforcement

officers.”    McGee v. Commonwealth, 25 Va. App. 193, 198, 487

S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United States,

517 U.S. 690, 699, 116 S. Ct. 1657, 1659, 134 L. Ed. 2d 911

(1996)).   However, we review de novo the trial court’s application

of defined legal standards such as probable cause and reasonable

suspicion to the particular facts of the case.      See Shears v.

Commonwealth, 23 Va. App. 394, 398, 477 S.E.2d 309, 311 (1996);

see also Ornelas, 517 U.S. at 699, 116 S. Ct. at 1659.

     Appellant concedes that the officers’ initial approach of his

vehicle was reasonable, but he contends that the officers violated

                                   - 2 -
the Fourth Amendment by unlawfully searching his car and seizing

him.       We disagree. 1

       Here, the officers’ initial approach of appellant’s vehicle

did not implicate the Fourth Amendment, for the officers were

attempting, initially, merely to awaken the unconscious appellant

and to engage him in a consensual encounter on a public street.

See, e.g., Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d

869, 870 (1992).        The evidence, viewed in the light most favorable

to the Commonwealth, establishes that while in such a position,

with the aid of a flashlight, Officer Melvin observed an alcohol

bottle on the floor of the vehicle directly beneath appellant’s

leg.       Because Melvin saw the object in plain view from a public

place, the discovery did not implicate the Fourth Amendment.       See,

e.g., United States v. Dunn, 480 U.S. 294, 304-05, 107 S. Ct.

1134, 1141, 94 L. Ed. 2d 326 (1987); Cook v. Commonwealth, 216 Va.

71, 73, 216 S.E.2d 48, 50 (1975); see also Horton v. California,

496 U.S. 128, 130, 110 S. Ct. 2301, 2304, 110 L. Ed. 2d 112

(1990).

       The presence of the alcohol bottle, combined with appellant’s

apparent unconsciousness and the difficulty the officers had in

       1
      Appellant analyzes the officers’ actions under the community
caretaker doctrine. For the reasons set out below, we hold that
the actions of Officers Melvin and Flick were objectively
reasonable in the context of an investigation of possible criminal
activity. See, e.g., Whren v. United States, 517 U.S. 806,
812-13, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996).
Therefore, we do not analyze their actions under the community
caretaker doctrine.

                                       - 3 -
rousing him, provided the officers with an objectively reasonable

suspicion that appellant was operating a motor vehicle under the

influence of alcohol or narcotics in violation of Code § 18.2-266.

See Williams v. City of Petersburg, 216 Va. 297, 300, 217 S.E.2d

893, 896 (1975) (holding that accused who was slumped over

steering wheel of vehicle stopped in parking lot with engine

running was “operating” vehicle for purposes of statute

proscribing driving under the influence).   Based on evidence

supporting such a suspicion, the officers were entitled to detain

appellant briefly for questioning in order to confirm or dispel

their suspicions.   When appellant responded to their question

about whether he was “okay” with an equivocal, “I guess,” the

officers were entitled to remove appellant from the vehicle to

determine whether he was, in fact, intoxicated.2   See, e.g., Nash

v. Commonwealth, 12 Va. App. 550, 552-53, 404 S.E.2d 743, 744

(1991).   Once appellant got out, the officers could see the

homemade pipe in plain view on the floor of the vehicle and

observed that appellant was unsteady on his feet and “out of it.”

     “An officer may seize an item in plain view if the officer is

lawfully in a position to see the item and it is ‘immediately

apparent that the item may be evidence of a crime.’”   Commonwealth

v. Ramey, 19 Va. App. 300, 303, 450 S.E.2d 775, 777 (1994)


     2
      Furthermore, the evidence, viewed in the light most
favorable to the Commonwealth, establishes that appellant exited
the vehicle voluntarily when the officers asked, “Do you mind
stepping out of [the] car?”

                                  - 4 -
(quoting Carson v. Commonwealth, 12 Va. App. 497, 501, 404 S.E.2d

919, 921 (1991), aff’d, 13 Va. App. 280, 410 S.E.2d 412 (en banc),

aff’d, 244 Va. 293, 421 S.E.2d 415 (1992)).   Here, the pipe and

stem were in plain view when appellant exited the car.   Although

neither officer testified expressly that he believed the pipe was

evidence of criminal activity, Officer Melvin specifically

identified the device as a homemade pipe and Officer Flick

testified that he handcuffed appellant because of the pipe, making

clear the officers’ belief that the pipe was evidence of a crime.

See id. at 304, 450 S.E.2d at 777 (holding that “[e]ven without

knowing the exact nature of the [burned] residue [on foil atop a

plastic bottle], it may have been immediately apparent to the

officer that the bottle was evidence of a crime” because of the

“highly unlikely event that it would have a legitimate use,”

thereby satisfying the “immediately apparent” requirement).

     The presence of the pipe, coupled with appellant’s apparent

unconsciousness when the officers approached, their difficulty in

rousing him, his equivocal response to their inquiries about his

well being, and his condition upon exiting the vehicle, gave the

officers probable cause to arrest him for operating a motor

vehicle while under the influence of intoxicants. 3



     3
      That the officers may not have conducted any field sobriety
tests after appellant exited the vehicle or charged appellant with
driving under the influence is irrelevant to determining whether
their actions in seizing the pipe and arresting appellant were
objectively reasonable.

                                  - 5 -
     For these reasons, appellant and the pipe were properly

seized, and the trial court did not err in denying appellant’s

motion to suppress.

                                II.

              ADMISSIBILITY OF CERTIFICATE OF ANALYSIS

     Appellant also contends that the trial court erred in

admitting the certificate of analysis into evidence under Code

§ 19.2-187.   He concedes that the certificate was in the trial

court’s case file but contests the holding of the trial court that

this presence was sufficient to constitute filing within the

meaning of the statute.   We disagree.

     Code § 19.2-187 provides, in relevant part,

          that a certificate of analysis shall be
          admissible in evidence provided (i) the
          certificate of analysis is filed with the
          clerk of the court hearing the case at least
          seven days prior to the hearing or trial and
          (ii) a copy of such certificate is mailed or
          delivered . . . to counsel of record for the
          accused at least seven days prior to the
          hearing or trial upon request of such
          counsel.

Id. (emphasis added).   The purpose of the statute “is to ensure

that the certificate to be used in evidence is lodged timely in a

secure and appropriate place, accessible to the accused, and

available to him on request.”   Stokes v. Commonwealth, 11 Va. App.

550, 552, 399 S.E.2d 453, 454 (1991).

     Ordinarily, a court has discretion in ruling on the

admissibility of evidence.   See Langhorne v. Commonwealth, 13 Va.


                                  - 6 -
App. 97, 106, 409 S.E.2d 476, 482 (1991).   However, “[b]ecause

[Code § 19.2-187] ‘deals with criminal matters, and it undertakes

to make admissible evidence which otherwise’ might be

objectionable, it ‘should be construed strictly against the

Commonwealth and in favor of the accused.’”   Winston v.

Commonwealth, 16 Va. App. 901, 904, 434 S.E.2d 4, 5 (1993)

(quoting Gray v. Commonwealth, 220 Va. 943, 945, 265 S.E.2d 705,

706 (1980)).    “Prejudice to the defendant from a failure to comply

need not be shown.”   Woodward v. Commonwealth, 16 Va. App. 672,

674, 432 S.E.2d 510, 512 (1993).

     Despite these rules, we hold that the presence of the

certificate in the proper circuit court case file at least seven

days before trial was sufficient to permit its admissibility under

the statute.   As we previously have noted, a certificate of

analysis is “filed with” the clerk of court within the meaning of

Code § 19.2-187 when “received by” the clerk.    See Waller v.

Commonwealth, 27 Va. App. 71, 75, 497 S.E.2d 508, 510 (1998)

(citing Rhem v. State, 820 S.W.2d 946, 947 (Tex. Crim. App. 1991)

(“A document is considered filed when delivered to the clerk for

filing.”)).    Furthermore, “Code § 19.2-187 does not prescribe the

manner in which a clerk’s office must mark such certificates”

before they may be considered filed.   Carter v. Commonwealth, 12

Va. App. 156, 158, 403 S.E.2d 360, 361 (1991).   As a result, we

have held that the notation on a “document [that it] had been

‘filed’ and the date and initials of the deputy clerk who filed it

                                   - 7 -
were sufficient for the trial court to determine that the

certificate had been filed” in the proper court in compliance with

the statute.   See id.   Implicit in this ruling is that such a

notation on the face of a certificate is merely circumstantial

evidence of proper filing and that proper filing also may be

established in other ways.

     Deputy Clerk Maureen Williams testified that the general

district court warrants were received in the clerk’s office on

February 13, 1998, as indicated by a date stamp, and delivered to

the Commonwealth’s Attorney’s office on February 18, 1998, as

indicated by another date stamp.   She identified the docket number

and judge’s initials written on the face of the warrant as being

in her own handwriting and said she wrote that information on the

warrant while the file was in the clerk’s office sometime between

February 13 and February 17.   She also explained that the top two

sheets in the file contained a carbon feature such that when she

wrote on the top sheet, the docket number and initials were

imprinted on other sheets in the file, including the certificate

of analysis, which was the third sheet in the file.   She

confirmed, based on the carbon copy notations in her handwriting,

that the certificate was in the file no later than February 17.

     This evidence established that the certificate of analysis

was in the circuit court case file for the charged offense at

least seven days prior to trial and, therefore, that it was “filed



                                   - 8 -
with” the clerk of court in compliance with Code § 19.2-187. 4

Accordingly, the trial court did not err in admitting the

certificate into evidence.

     For these reasons, we hold that the trial court did not err

in denying the motion to suppress or admitting the certificate of

analysis into evidence, and we affirm appellant’s conviction.

                                                            Affirmed.




     4
      Here, the certificate was lodged in the appropriate file
and, therefore, was “accessible” and “available” to appellant in
compliance with Code § 19.2-187. See Harshaw v. Commonwealth, 16
Va. App. 69, 72 & n.2, 427 S.E.2d 733, 735 & n.2 (1993); see also
Waller, 27 Va. App. at 76-77, 497 S.E.2d at 510-11. We do not
consider whether the certificate--once “received by” and,
therefore, “filed with” the clerk--would have been admissible if
the clerk had filed it in a manner that rendered it neither
accessible nor available to appellant.

                                 - 9 -
