                  COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Bumgardner and Clements
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                          MEMORANDUM OPINION * BY
v.   Record No. 2503-00-1              JUDGE JEAN HARRISON CLEMENTS
                                              APRIL 23, 2001
JOSHUA DICKSON


        FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                     Randolph T. West, Judge

          Thomas M. McKenna, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellant.

          James B. Thomas for appellee.


     Joshua Dickson stands indicted for possession of cocaine with

intent to distribute in violation of Code § 18.2-248 and

possession of a firearm while in possession of cocaine in

violation of Code § 18.2-308.4(A).   The Commonwealth appeals the

trial court's pretrial ruling granting Dickson's motion to

suppress evidence of a .38 caliber handgun and suspected crack

cocaine found in Dickson's pockets during a warrantless search of

his person by police.   The Commonwealth contends the trial court

erred in suppressing the evidence because, even though the search

was conducted prior to the formal arrest of Dickson and even

though the search was incident to an "arrest" for what normally is


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
a summonsable offense, the officers had probable cause at the time

of the search to arrest Dickson for unlawfully possessing

fireworks and the search was justifiable to protect the officers'

safety and to preserve or discover evidence of Dickson's illegal

possession of fireworks.   For the reasons that follow, we reverse

the trial court's suppression of the evidence.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts necessary to a

disposition of this appeal.

     In a pretrial appeal of a ruling on a motion to suppress, we

view the evidence in the light most favorable to the prevailing

party, Dickson in this case, granting to him all reasonable

inferences fairly deducible therefrom.   See Commonwealth v.

Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).

"'Ultimate questions of reasonable suspicion and probable cause to

make a warrantless search' involve questions of both law and fact

and are reviewed de novo on appeal."   McGee v. Commonwealth, 25

Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (quoting

Ornelas v. United States, 517 U.S. 690, 691 (1996)).   However, "we

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."   Id. at 198, 487

S.E.2d at 261 (citing Ornelas, 517 U.S. at 699).

                               - 2 -
     The trial court found that the search of Dickson was unlawful

because (1) it was conducted before Dickson was formally arrested

and (2) it went "too far" in a case where normally a summons would

be issued.   The Commonwealth first argues that the search of

Dickson was legal because the officers had probable cause when the

search was conducted to arrest Dickson for illegal possession of

fireworks.

     "'When an officer has probable cause to arrest a person, the

officer may search the person . . . .'"   Williams v. Commonwealth,

21 Va. App. 263, 267, 463 S.E.2d 679, 681 (1995) (quoting Buck v.

Commonwealth, 20 Va. App. 298, 304, 456 S.E.2d 534, 537 (1995)).

"Probable cause to arrest must exist exclusive of the incident

search.   So long as probable cause to arrest exists at the time of

the search, however, it is unimportant that the search preceded

the formal arrest if the arrest 'followed quickly on the heels of

the challenged search.'"   Carter v. Commonwealth, 9 Va. App. 310,

312, 387 S.E.2d 505, 506-07 (1990) (quoting Wright v.

Commonwealth, 222 Va. 188, 193, 278 S.E.2d 849, 852-53 (1981)

(internal quotations omitted)).   "In addition, if the police have

probable cause to effect an arrest, a limited search may be

justified even in the absence of a formal arrest."   Poindexter v.

Commonwealth, 16 Va. App. 730, 733, 432 S.E.2d 527, 529 (1993).

     "Probable cause exists when the facts and circumstances

within the arresting officer's knowledge and of which [the

officer] has reasonably trustworthy information are sufficient in

                               - 3 -
themselves to warrant a [person] of reasonable caution in the

belief that an offense has been or is being committed."      Schaum v.

Commonwealth, 215 Va. 498, 500, 211 S.E.2d 73, 75 (1975).

"Probable cause is assessed by considering the totality of the

circumstances pertaining to the facts known to the officer at the

time."   United States v. Sokolow, 490 U.S. 1, 9-10 (1989).

     Here, Officers Gayle and Berryman were on bike patrol when

they heard firecrackers going off.     Their dispatch had also

relayed a report of suspected shots being fired in the area.        The

officers followed the noise of the fireworks to an area where they

saw Dickson and a group of other people.     Officer Gayle observed

Dickson with a lighter in his hand, preparing to light a

firecracker.   Officer Berryman observed Dickson light a

firecracker and throw it in the air.    Plainly, these

circumstances, witnessed by the officers, warranted the belief by

a person of reasonable caution that Dickson was unlawfully using

fireworks in violation of Code §§ 59.1-142 and 59.1-145. 1    The

officers therefore had probable cause to arrest Dickson without a

warrant prior to conducting the challenged search.




     1
       Officer Gayle testified that he originally intended to
charge Dickson with possession of fireworks under the City of
Newport News Code § 16-20; however, neither the charging
document nor the applicable section of the city code were made a
part of the record on appeal. We therefore base our analysis on
Dickson's unlawful use of fireworks in violation of Code
§§ 59.1-142 and 59.1-145.


                               - 4 -
     Officer Gayle testified that, after observing Dickson

preparing to light a firecracker, he "was going to arrest him for

the possession of fireworks," but he did not put handcuffs on

Dickson or inform him he was under arrest at that point.    Gayle

had Dickson step away from the crowd and started checking his

pockets because he "had reason to believe that [Dickson] had more

fireworks on his person" and he wanted "to recover those

fireworks."   Incident to that search, Gayle found a .38 caliber

handgun in Dickson's left rear pocket.   Gayle immediately placed

Dickson "in custody for concealed weapon [sic] and for [Gayle's]

safety" and continued his search of Dickson's pockets.   He then

found a plastic bag containing "eleven individually wrapped pieces

of" suspected crack cocaine in Dickson's watch pocket.   Following

the search, Gayle arrested Dickson on the fireworks offense, in

addition to the other charges. 2

     We hold, therefore, that, because probable cause to arrest

existed at the time of the search and because the arrest followed

quickly on the heels of the challenged search, the search was not

unconstitutional solely because it had been conducted prior to

Dickson's formal arrest.

     Our analysis, however, does not end there.   The trial court

also determined that the search of Dickson's person was illegal

because the search was not conducted incident to a lawful


     2
       The fireworks charge was, Gayle believed, later "nolle
prossed down in criminal court."

                               - 5 -
custodial arrest, but incident to a misdemeanor arrest requiring

only the issuance of a summons rather than a custodial arrest.

Officer Gayle, in fact, testified that a suspect in possession of

fireworks would not "normally" be taken into custody, but would be

given a summons and released.

     Code § 19.2-74(A)(1) provides that an arresting officer who

has custody or detention of a person for certain misdemeanor

offenses, including unlawful use of fireworks, shall issue the

person a summons and, upon his written promise to appear in

compliance with the summons, shall release that person from

custody.   However, that section, in conjunction with Code

§ 19.2-82, permits an officer to effect a warrantless custodial

arrest if the person fails or refuses to discontinue the unlawful

act or refuses to give a written promise to appear, or if the

officer reasonably believes the person will likely disregard the

summons or will likely do harm to himself or others.

     Viewed in the light most favorable to Dickson, the evidence

does not support a finding that any of the circumstances

permitting a lawful custodial arrest under Code § 19.2-74(A)

existed here.   Thus, we must conclude that, in this case, the

officers could have issued only a summons to Dickson in connection

with his arrest for unlawful use of fireworks.

     Following the rationale of the Supreme Court in Knowles v.

Iowa, 525 U.S. 113 (1998), the Supreme Court of Virginia held in

Lovelace v. Commonwealth, 258 Va. 588, 522 S.E.2d 856 (1999), that

                                - 6 -
"an 'arrest' that is effected by issuing a citation or summons

rather than taking the suspect into custody does not, by itself,

justify a full field-type search."     Id. at 596, 522 S.E.2d at 860.

Code § 19.2-74 does not

           contemplate[] a custodial situation
           equivalent to an actual custodial arrest.
           Under that statute, a suspect is detained, or
           in the custody of the police officer, only
           long enough for the officer to take down the
           name and address of the person and issue a
           summons. . . . Thus, the threat to officer
           safety is less.

Id.

      However, the Court recognized in Lovelace that concerns for

officer safety or the need to preserve or discover evidence could

warrant an additional intrusion.   Id. at 594, 522 S.E.2d at 859.

Such an intrusion, though, must be "limited to what is necessary

to answer" those specific concerns and needs.    Id.   The Court

applied such rationale in Lovelace as follows:

                Next, assuming without deciding that
           there was a need to discover evidence or a
           threat to the officers' safety, we conclude
           that the extent of [the officer's] search
           exceeded the scope necessary to accomplish
           either of those objectives. Once [the
           officer] conducted his "patdown" of Lovelace
           and felt nothing similar to a weapon, any
           reasonable concern for officer safety was
           resolved. Likewise, [the officer] did not
           testify that he felt something that was
           evidence related to Lovelace's drinking an
           alcoholic beverage in public. Instead, he
           felt a "squooshy" bag. In other words, [the
           officer] did not "reasonably believe" that
           the bag was either a weapon or evidence
           related to Lovelace's alleged alcohol
           offense. Thus, [the officer's] subsequent

                               - 7 -
          reach into Lovelace's pocket to retrieve the
          "squooshy" bag was not in furtherance of
          either officer safety or the preservation of
          evidence. Once [the officer] satisfied
          himself that Lovelace did not have a weapon
          or evidence of an alcohol offense on his
          person, the officer had no basis to continue
          his search.

Id. at 596-97, 522 S.E.2d at 860.

     Here, Officer Gayle was authorized by Code § 19.2-74(A)(1)

only to issue Dickson a summons for the unlawful use of fireworks.

Accordingly, the search of Dickson's person incident to that

non-custodial arrest was unjustified unless concerns for officer

safety or the need to preserve or discover evidence warranted such

an additional intrusion.   Moreover, if such a search was warranted

for those reasons, it had to have been limited to what was

necessary to answer those specific concerns and needs.   We hold

that the search by Gayle of Dickson's person was warranted under

the circumstances and was properly limited to accomplish the

permissible objectives set forth in Lovelace.

     There was, in this case, a definite concern for the officers'

safety as well as the need to preserve and discover evidence.    En

route to the area where illegal fireworks were being ignited,

Officers Gayle and Berryman received a report from dispatch of

suspected gunshots in the same area.   Upon their arrival at the

scene, the officers observed Dickson in the act of lighting

firecrackers.   This evidence, we believe, supports a finding that

the officers were entitled to reasonably conclude that Dickson was


                               - 8 -
armed possibly with a gun and certainly with additional

firecrackers and lighting instruments which constituted a threat

to their safety.   Furthermore, Officer Gayle, we believe, was

entitled to reasonably conclude that a search of Dickson's pockets

would yield or preserve further evidence of his illegal use of

fireworks.

     Additionally, unlike in Lovelace where the officer felt

nothing during his "patdown" of the suspect similar to a weapon or

evidence related to the original offense, Gayle's search of

Dickson's person revealed a .38 caliber revolver in Dickson's rear

pocket and suspected crack cocaine in his front pocket.    We find

that, because the suspected cocaine was eleven individually

wrapped pieces of crack cocaine, rather than a "squooshy" bag like

the drugs found on Lovelace, Gayle could reasonably have concluded

when he felt the suspected cocaine in Dickson's pocket that it was

evidence related to Dickson's unlawful use of fireworks.   Hence,

Gayle's retrieval of the handgun and drugs from Dickson's pockets

was in furtherance of the limited permissible objectives of

officer safety and the preservation or discovery of evidence.

     We hold, therefore, that the search of Dickson was consistent

with the Fourth Amendment.   Consequently, the trial court erred in

suppressing the Commonwealth's evidence.




                               - 9 -
     Accordingly, we reverse the trial court's suppression of the

evidence and remand this case for further proceedings consistent

with this opinion, if the Commonwealth be so advised.

                                        Reversed and remanded.




                              - 10 -
