                      COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Elder and Annunziata
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                          MEMORANDUM OPINION * BY
v.   Record No. 1334-00-2               JUDGE ROSEMARIE ANNUNZIATA
                                             OCTOBER 31, 2000
QUENTON BRYANT ANDERSON


            FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                 H. Selwyn Smith, Judge Designate

           Marla Graff Decker, Assistant Attorney
           General (Mark L. Earley, Attorney General,
           on brief), for appellant.

           Janice L. Redinger (Janice L. Redinger,
           P.L.C., on brief), for appellee.


     The Commonwealth appeals from the pretrial order of the

Circuit Court of Albemarle County, suppressing evidence found

during a search of Anderson's person.   We find that the trial

court erroneously suppressed the evidence, and accordingly, we

reverse.

                               FACTS

     On September 27, 1999, Albemarle County Police Officer John

McKay was on uniformed patrol in a marked police car.    Officer

McKay observed a vehicle coming toward him on a two-lane highway

fail to dim its headlights.   Based upon this inaction on the


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
part of the driver, which constitutes a traffic offense under

Code § 46.2-1034, the officer stopped the vehicle.    Anderson was

the driver and could produce neither a driver's license nor any

other identification for the officer.    Furthermore, although

Anderson was driving a rental car, neither he nor his passenger

was listed in the rental agreement.     The officer concluded that

Anderson was unlikely to appear on a summons and decided that

Anderson's arrest was warranted.   Marijuana was discovered in

the course of a full search the officer conducted immediately

prior to placing Anderson under arrest.

     At the motion to suppress hearing, the trial judge

concluded that the arrest was valid.    The court reasoned that

although officers customarily issue a summons for a traffic

violation rather than arrest the suspect, "the right does exist

for [the officer] to arrest . . . for driving without an

operator's license and that made the arrest valid."

Notwithstanding its finding that the arrest was valid, the trial

court found that the full search incident to the arrest was not,

holding that once the officer determined Anderson was unarmed,

the search had to be terminated.   Accordingly, the trial court

suppressed the marijuana evidence found in the course of the

search.    It is from this ruling that the Commonwealth now

appeals.




                                - 2 -
                               ANALYSIS

     We view the evidence in the light most favorable to the

defendant, the prevailing party below, granting him all

reasonable inferences which flow from the evidence.     See

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

47, 48 (1991).    The trial court's decision "will not be

disturbed unless it is plainly wrong or without evidence to

support it."     Commonwealth v. Thomas, 23 Va. App. 598, 609, 478

S.E.2d 715, 720 (1996).

     However, when analyzing a Fourth Amendment issue,

"'[u]ltimate questions of reasonable suspicion and probable

cause' . . . involve questions of both law and fact and are

reviewed de novo on appeal."     McGee v. Commonwealth, 25 Va. App.

193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc) (quoting

Ornelas v. United States, 517 U.S. 690, 699 (1996)); see Bass v.

Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000).     "In

performing such analysis, 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."     McGee, 25 Va. App. at 198, 487

S.E.2d at 261 (citing Ornelas, 517 U.S. at 699-703).

     Under the Fourth Amendment, an officer may make a

warrantless arrest when the officer has probable cause to

believe that an individual has committed an offense.     See

                                 - 3 -
generally United States v. Watson, 423 U.S. 411, 415-24 (1976).

"[P]robable cause exists when the facts and circumstances within

the officer's knowledge, and of which he has reasonably

trustworthy information, alone are sufficient to warrant a

person of reasonable caution to believe that an offense has been

or is being committed."   Taylor v. Commonwealth, 222 Va. 816,

820, 284 S.E.2d 833, 836 (1981).

     Virginia law directs an officer to issue a summons, rather

than make a full custodial arrest, after detaining an individual

for a misdemeanor traffic offense.     See Code § 46.2-936

("Whenever any person is detained by or in the custody of an

arresting officer, including an arrest on a warrant, for a

violation of any provision of this title punishable as a

misdemeanor, the arresting officer shall, except as otherwise

provided in § 46.2-940, . . . issue a summons . . . .").

However, an exception exists whereby under certain

circumstances, the officer is permitted to make a full custodial

arrest.   See Code § 46.2-940 ("If any person is: . . . (ii)

believed by the arresting officer to be likely to disregard a

summons issued under § 46.2-936 . . . the arresting officer

shall promptly take him before a magistrate . . . .").

     In this case, the trial court found that the arrest of

Anderson for driving without a license, a Class 2 misdemeanor

under Code § 46.2-300, was valid, and evidence was introduced at

the hearing that supports this finding.    Officer McKay observed

                               - 4 -
Anderson driving and stopped him for a traffic offense.

Anderson admitted to the officer that he did not have a valid

operator's license, or any form of identification.   The officer

could not verify the defendant's identity through any reliable

means.   In addition, Anderson was driving a rental car, rented

by an absent third party, and McKay did not have sufficient

information to determine whether the vehicle had been stolen or

not.   Based upon what he knew, the officer reasonably believed

that it was unlikely Anderson would appear in court had McKay

released him on a summons.   On that ground, Anderson's arrest

was lawful under the Fourth Amendment, and under Code

§§ 46.2-936, -940.

       Once a proper full custodial arrest is made, the officer

may conduct a full search of the suspect, even if the officer

does not believe that the suspect is armed or is concealing

evidence.    See United States v. Robinson, 414 U.S. 218, 235-36

(1973) ("It is the fact of the lawful arrest which establishes

the authority to search, and we hold that in the case of a

lawful custodial arrest a full search of the person is not only

an exception to the warrant requirement of the Fourth Amendment,

but is also a 'reasonable' search under that Amendment."); see

also Gustafson v. Florida, 414 U.S. 260, 263-66 (1973).

       Additionally, the arrest does not have to be made prior to

the full search, so long as the arrest is lawful and the actual

arrest follows shortly after the search.    See Rawlings v.

                                - 5 -
Kentucky, 448 U.S. 98, 111 (1980); United States v. Miller, 925

F.2d 695, 698 (4th Cir. 1991).

     Finally, the officer can seize any contraband found during

the search incident to arrest, irrespective of whether the

evidence is related to the crime that gave rise to the initial

arrest.   See Harris v. United States, 331 U.S. 145, 154-55

(1947) ("Nothing in the decisions of this Court gives support to

the suggestion that under such circumstances the law enforcement

officials must impotently stand aside and refrain from seizing

such contraband material.").

     Applying these principles to the facts of this case, we

find that the officer was permitted to conduct a full search

incident to Anderson's arrest.    During the search, the officer

discovered marijuana which he had authority to seize as

"contraband."   See Robinson, 414 U.S. at 236 (where heroin was

found during a search incident to an arrest for driving after

the defendant's license had been revoked, the officer "was

entitled to seize [the heroin] as 'fruits, instrumentalities, or

contraband' probative of criminal conduct"); see also Gustafson,

414 U.S. at 266.   Therefore, the trial court erred in

suppressing the evidence of the marijuana.   Its ruling on this

matter is accordingly reversed.



                                               Reversed.



                                 - 6 -
