                               COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Humphreys and Senior Judge Coleman
Argued at Chesapeake, Virginia


JOAN COPPEDGE
                                                              MEMORANDUM OPINION* BY
v.     Record No. 2920-03-1                                   JUDGE JAMES W. BENTON, JR.
                                                                  JANUARY 18, 2005
COMMONWEALTH OF VIRGINIA


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

                 F. Winslow Young (Law Office of Wanda N. Allen, on brief), for
                 appellant.

                 Leah A. Darron, Assistant Attorney General (Jerry W. Kilgore,
                 Attorney General, on brief), for appellee.


       Police officers detained Joan Coppedge for suspicion of trespassing in violation of Code

§ 18.2-119, handcuffed her, informed her of her Miranda rights, interrogated her about their

suspicions, and then “arrested” her for trespassing. After the arrest and during a further

interrogation, Coppedge admitted she had bags of crack cocaine, which the police seized.

Coppedge contends that the trial judge erred in admitting her statements and physical evidence

because they were the product of an unlawful custodial arrest and search in violation of Code

§ 19.2-74 and the Fourth Amendment. We hold that the judge did not err in refusing to suppress

the evidence, and we affirm the judgment.

                                                  I.

       On this appeal from the denial of Coppedge’s motion to suppress evidence, we view the

evidence in a light most favorable to the Commonwealth, granting to it all reasonable inferences

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
fairly deducible therefrom. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d

47, 48 (1991). Although we are bound by the trial judge’s findings of historical fact unless

“plainly wrong or without evidence to support it,” McGee v. Commonwealth, 25 Va. App. 193,

198, 487 S.E.2d 259, 261 (1997), whether Coppedge has been seized and searched in violation of

the Fourth Amendment is a mixed question of law and fact that we review de novo on appeal,

Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 837 (2002).

        During a suppression hearing, Officer J.F. Gayle testified that he and J.L. Carden were

monitoring with a telescopic camera an area near a convenience store known for high drug usage

and high crime. Several “No Trespassing” signs were posted on the wall outside the store. Officer

Gayle also testified that the city had a letter authorizing police enforcement.

        For ten minutes, the officers watched Joan Coppedge riding her bicycle, going on and off

the property twice. As the officers observed Coppedge and other people on the property, Coppedge

rode to a man and woman who were walking on the sidewalk. After she spoke with them for a few

moments, the man began to count paper money. He gave Coppedge some bills, and Coppedge, in

turn, gave something to the man. The officers could not see the item. Officer Gayle testified that he

did not know if Coppedge “had done anything illegal,” but he suspected Coppedge was dealing

drugs. The officers then left the vantage point and drove to the store to talk to Coppedge.

        Coppedge was “directly in front of the . . . property,” straddling her bicycle and talking to a

man, when the officers arrived in full uniform with their badges displayed. As they approached

from behind Coppedge, she turned her head, “kind of laughed,” and then rode away quickly. The

officers ran after her but were not sure whether Coppedge had seen them. Officer Gayle, and

perhaps also Officer Carden, physically grabbed Coppedge. Officer Gayle “advised . . . Coppedge

[he] was placing her under detention.” He testified he “had reason to believe she was trespassing.”




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He also testified he handcuffed her because they suspected she was dealing narcotics and because it

was common for drug dealers to carry weapons. They did not frisk her.

       Officer Gayle advised Coppedge of her Miranda rights. Coppedge said she understood

her rights and answered questions posed to her. After Coppedge identified herself, Officer Gayle

told Coppedge they had watched her ride on and off the store’s property and asked what she was

doing. She replied she was “just going back and forth, riding on the property.” Responding to

questions, Coppedge said she had not bought anything in the store and had not been inside.

Officer Gayle told Coppedge that he “was placing her under arrest for trespassing.” Officer Gayle

then asked Coppedge if she had drugs or weapons on her person. Coppedge said she had “four

or five bags [of cocaine] in [her] pocket.” Searching Coppedge, the officers recovered a plastic

bag with eight individually wrapped rocks of crack cocaine. They then told Coppedge she was

also under arrest for possession of cocaine with intent to distribute.

       The trial judge denied the motion to suppress the evidence. At the conclusion of the trial,

the judge convicted Coppedge of possession of cocaine with intent to distribute.

                                                 II.

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

Iowa, 525 U.S. 113 (1998), Coppedge contends the trial judge erred in denying her suppression

motion. She argues that although the officers could detain her under Code § 19.2-74 for

trespassing, the officers were not permitted to “arrest” and search her.

       In Lovelace, a police officer detained the defendant for a misdemeanor and searched him.

The officer “did not actually arrest [the defendant] until after he retrieved the bag from the

defendant’s pocket.” 258 Va. at 592, 522 S.E.2d at 857. Applying Code § 19.2-74 and the

principle set forth in Knowles, the Supreme Court of Virginia held as follows:




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               [A]n “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.

               Nor do we believe that Code § 19.2-74(A)(2) contemplates 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. One of the reasons
               that the Knowles Court did not extend the Robinson “bright-line
               rule” to a “search incident to citation” was because the duration of
               the encounter between a police officer and a defendant is
               “relatively brief” when the officer issues a citation.

Lovelace, 258 Va. at 596, 522 S.E.2d at 858; see also Rhodes v. Commonwealth, 29 Va. App.

641, 513 S.E.2d 904 (1999) (applying Knowles). This principle applies to the class of

misdemeanor offenses where, by statute, the detention is less than an actual custodial arrest. See

Code § 19.2-74.

       Trespassing “upon the lands, buildings, or premises of another . . . after having been

forbidden to do so,” is punishable as a Class 1 misdemeanor under Code § 18.2-119. Code

§ 19.2-74 prescribes the procedure Officer Gayle should have followed with regard to persons

violating this section. In the pertinent part, Code § 19.2-74(A)(1) provides as follows:

                   Whenever any person is detained by or is in the custody . . . for
               any violation committed in such officer’s presence which offense
               is a violation of any county, city or town ordinance or of any
               provision of this Code punishable as a Class 1 or Class 2
               misdemeanor . . . [the] officer shall take the name and address of
               such person and issue a summons or otherwise notify him in
               writing to appear at a time and place to be specified in such
               summons or notice. Upon the giving by such person of his written
               promise to appear at such time and place, the officer shall
               forthwith release him from custody.

       Officer Gayle failed to follow the procedure outlined in the statute. Instead, after he

detained Coppedge and inquired about her purpose on the property, he informed Coppedge she

was “under arrest.” Although Coppedge identified herself, the officer did not take her address,

secure her promise to appear, or release her forthwith. Officer Gayle testified he had no reason

                                               -4-
to believe Coppedge would not show up for court on a summons, and he had no knowledge of

Coppedge’s prior record that would provide a basis to suspect that she would not appear.

Nevertheless, he first interrogated her and then “arrested” her.

        Coppedge’s case involves the same statute as in Lovelace. There, the police detained

Lovelace after observing a beer bottle fly from his direction. 258 Va. at 596, 522 S.E.2d at 857.

After asking Lovelace his name, the officer conducted a “pat down” of Lovelace and, feeling

something like a plastic bag in his pocket, retrieved a bag filled with a substance later identified

as crack cocaine. Id. The Court reversed his conviction because the evidence was seized during

a search incident to a detention, a search in excess of what the Fourth Amendment and Code

§ 19.2-74 allow. Id. at 597, 522 S.E.2d at 860.

        Unlike Lovelace and significant to the outcome in this case, the officer testified that after

the initial detention and questioning he “arrested” Coppedge for trespassing. Both Knowles and

Lovelace are inapposite to the circumstances here because, in both of those cases, the search

occurred before the custodial arrest. Telling Coppedge, who had been put in handcuffs, that he

“was placing her under arrest,” Officer Gayle effected an “actual custodial arrest.” When he told

Coppedge that he “was placing her under arrest for trespassing” and asked if she had guns or

drugs, he effectively told her after the arrest that he had the right to search her.

                                                  III.

        Acknowledging on brief that “Officer Gayle lawfully detained and handcuffed Coppedge

for the purpose of issuing her a summons for trespassing,” Coppedge also contends that “Officer

Gayle . . . incorrectly informed Coppedge she was under arrest, Mirandized her and questioned

her about matters that had little or nothing to do with the trespassing.” She argues that these

circumstances demonstrate she had been placed in full custodial arrest before the officer actually

arrested her.

                                                 -5-
       Coppedge argues that this case “is identical to the situation presented” in Hunt v.

Commonwealth, 41 Va. App. 404, 585 S.E.2d 827 (2003), where we reversed the conviction

because the trial judge denied the defendant’s motion to suppress. Since that decision, however,

this Court affirmed the conviction en banc “without opinion by an evenly divided Court.” 42

Va. App. 537, 592 S.E.2d 789 (2004). Recently, the Supreme Court ruled that this Court did not

err in affirming Hunt’s conviction. Hunt v. Commonwealth, Record No. 040614 (Va. Oct. 8,

2004). We hold that the Supreme Court’s decision in Hunt is applicable here.

               Assuming, without deciding, that a violation of Code § 19.2-74
               occurred, the defendant failed to establish that he was entitled to
               suppression of the evidence obtained as a result of the search. In
               the absence of a violation of a defendant’s constitutional rights, the
               remedy of exclusion of evidence is not available for a statutory
               violation.

Id.

       The record established that the officer arrested Coppedge and then conducted a search

incident to the arrest. Search incident to an arrest is authorized by United States v. Robinson,

414 U.S. 218 (1973).

       Accordingly, we affirm the conviction.

                                                                                         Affirmed.




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