                  COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Kelsey and Senior Judge Willis
Argued By teleconference


COMMONWEALTH OF VIRGINIA
                                        MEMORANDUM OPINION * BY
v.   Record No. 2308-02-1               JUDGE D. ARTHUR KELSEY
                                           FEBRUARY 25, 2003
RODNEY COURTNEY ROGERS


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                    Charles E. Poston, Judge

          Jennifer R. Franklin, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellant.

          David W. Bouchard for appellee.


     The Commonwealth appeals the trial court's decision to

suppress evidence discovered during a warrantless search of a

vehicle recently occupied by Rodney Courtney Rogers.     Though the

trial court found that the police officers had probable cause to

believe the vehicle contained narcotics, the court found the

search unlawful because no "exigent circumstances" existed.    For

the following reasons, we reverse.

                               I.

     On appeal from a denial of a suppression motion, we review

the evidence in the light most favorable to the Commonwealth,




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
giving it the benefit of any reasonable inferences.     Bass v.

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

also Bryant v. Commonwealth, 39 Va. App. 465, 470-71, 573 S.E.2d

332, 334-35 (2002).

     In September 2001, Officer Robert Dickason of the Norfolk

Police Department began receiving information from three

confidential informants asserting that Rogers was engaged in

drug distribution.    Dickason had worked with the informants in

the past and had made arrests based on information provided by

two of the informants.   One of these informants had made

controlled buys for Dickason.

     All three informants provided information that Rogers,

operating out of a "white van or a white BMW," would "sell

heroin and cocaine, mainly heroin."     They informed Dickason that

Rogers would "keep heroin up his sleeve, his left sleeve in

particular."   "Once he was finished dealing what he had up in

his sleeve, he would go back to his vehicle —— whether it be the

van or the BMW —— and recover more out of there and slip it up

his sleeve and then walk back to wherever he was going to be

selling at."

     On February 25, 2002, a fourth informant approached

Dickason and agreed to make a controlled purchase from Rogers.

Although Dickason had never worked with this informant, the

informant corroborated what Dickason had been told about the

mode of drug distribution used by Rogers.    This informant called

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Rogers in Dickason's presence and set up a meeting with Rogers

(15 minutes after the call) at a McDonald's restaurant to

purchase heroin.   As Officer Dickason and his partner arrived at

the restaurant, they observed Rogers "pull his van into the Taco

Bell lot which is just west of the McDonalds."    They watched

Rogers exit the van and walk toward the McDonalds.    The officers

pulled in behind the van, verified the license plates, and

observed Rogers returning to the van.

     The officers confronted Rogers and identified themselves.

After his partner patted Rogers down, Officer Dickason "went

immediately to his left sleeve . . . grabbed his left sleeve"

and "felt something other than his clothing."    Upon unrolling

the sleeve, Dickason found "three caps of suspected heroin" in a

yellow tissue.   The officers arrested Rogers, advised him of his

Miranda rights, and asked for consent to search his van.       Rogers

declined.

     The officers called for a narcotics dog and waited "30 to

45 minutes" for the dog to arrive.     After arriving at the scene,

Officer Maurice Joseph walked his trained narcotics dog, Ace,

around "the exterior of the vehicle."    Ace "made an alert to the

passenger-side door seam."   When the officers opened the van's

doors, Ace "alerted to a briefcase that was behind the driver's

seat in the rear passenger area."    The officers seized the

briefcase which contained cocaine and heroin.



                               - 3 -
     A grand jury indicted Rogers on one count of possession of

cocaine with intent to distribute and one count of possession of

heroin with intent to distribute.       Rogers filed a motion to

suppress the evidence found during the officers' searches.         The

trial court denied the motion to suppress the evidence found on

his person, but granted the motion to exclude any evidence of

the narcotics found in the van.

     Despite finding that the officers had probable cause to

search the vehicle, the trial court suppressed the evidence

because "there were no exigent circumstances" justifying a

warrantless search.   In particular, the court noted, there was

"no danger of flight," "no danger that the evidence would

disappear or be compromised in any way," and the officers had

"ample time to obtain a warrant."

     The Commonwealth filed this interlocutory appeal pursuant

to Code § 19.2-398(A)(2) contending that the trial court erred

as a matter of law in requiring a showing of exigent

circumstances to justify the warrantless search of the vehicle.

                                  II.

     Though the ultimate question whether the officers violated

the Fourth Amendment triggers de novo scrutiny on appeal, the

trial court's findings of "historical fact" bind us due to the

weight we give "to the inferences drawn from those facts by

resident judges and local law enforcement officers."       Davis v.


                               - 4 -
Commonwealth, 37 Va. App. 421, 429, 559 S.E.2d 374, 378 (2002)

(citing Neal v. Commonwealth, 27 Va. App. 233, 237, 498 S.E.2d

422, 424 (1998)).

     For purposes of this appeal, however, the parties do not

dispute the historical facts.   Rogers concedes that probable

cause existed to search the van for drugs.      See generally

Alvarez v. Commonwealth, 24 Va. App. 768, 773-76, 485 S.E.2d

646, 648-50 (1997) (finding probable cause to search where dog

alerted on package in cargo bay of bus). 1    He also takes no issue

with the potential mobility of the parked van.     Instead, Rogers

argues that the Fourth Amendment requires a separate showing of

exigent circumstances before the officers could conduct a

warrantless search of his vehicle.      We disagree.

     As the United States Supreme Court has held, "under our

established precedent, the 'automobile exception' has no

separate exigency requirement."    Maryland v. Dyson, 527 U.S.

465, 467 (1999) (per curiam); see also Pennsylvania v. Labron,

518 U.S. 938, 940 (1996) (per curiam) ("If a car is readily

mobile and probable cause exists to believe it contains

contraband, the Fourth Amendment . . . permits police to search

the vehicle without more.").    A vehicle search may be conducted

if based on "facts that would justify the issuance of a warrant,




     1
        Rogers contested probable cause in his brief, but
conceded the issue during oral argument.

                                - 5 -
'even though a warrant has not been actually obtained.'"     Dyson,

527 U.S. at 467 (quoting United States v. Ross, 456 U.S. 798,

809 (1982)) (emphasis omitted).   The exception rests on the

inherent mobility of vehicles, as well as the observation that

"the expectation of privacy with respect to one's automobile is

significantly less than that relating to one's home or office."

California v. Carney, 471 U.S. 386, 391 (1985) (quoting South

Dakota v. Opperman, 428 U.S. 364, 367 (1976)).

     We acknowledge that the Virginia Supreme Court in McCary v.

Commonwealth, 228 Va. 219, 227, 321 S.E.2d 637, 641 (1984),

restated the automobile exception as requiring "both probable

cause to believe the car contains evidence of crime and exigent

circumstances."   Despite this seemingly unqualified statement,

however, McCary went on to add this qualification:

          An argument is sometimes made that the
          United States Supreme Court no longer
          requires exigent circumstances to justify a
          warrantless automobile search but instead
          requires only a showing of probable cause
          . . . . We need not decide that issue in
          the present case in view of our holding that
          there were exigent circumstances.

Id. at 227 n.*, 321 S.E.2d at 641 n.* (citations omitted).       In

other words, McCary did not hold that the Fourth Amendment

imposed a separate exigency requirement —— only that, if it did,

the facts of that case satisfied the requirement.    Given the

clarity of Dyson on this point, the exigent circumstances dicta

in McCary (as well as our cases repeating it, see, e.g., Jackson


                               - 6 -
v. Commonwealth, 22 Va. App. 347, 355, 470 S.E.2d 138, 143

(1996)), have no continuing precedential weight. 2

     In his suppression motion, Rogers also asserted that the

warrantless search of his van violated Virginia constitutional

law prohibiting "illegal searches and seizures."     We again

disagree.   "Our courts have consistently held that the

protections afforded under the Virginia Constitution are

co-extensive with those in the United States Constitution."

Sabo v. Commonwealth, 38 Va. App. 63, 77, 561 S.E.2d 761, 768

(2002) (quoting Henry v. Commonwealth, 32 Va. App. 547, 551, 529

S.E.2d 796, 798 (2000), and Bennefield v. Commonwealth, 21

Va. App. 729, 739-40, 467 S.E.2d 306, 311 (1996)).

     For these reasons, the trial court erred as a matter of law

in holding that the automobile exception to the warrant

requirement requires a separate showing of exigent

circumstances.   Concerns about "danger of flight," the

possibility that the "evidence would disappear," and the "ample

time" available to obtain a warrant do not figure into the

analysis.   The Fourth Amendment permits a warrantless search of




     2
       In cases involving the application of federal
constitutional principles, the Supremacy Clause, U.S. Const.
art. VI, cl. 2, does not allow state court decisions to take
precedence over opinions of the United States Supreme Court.
See generally Reynoldsville Casket Co. v. Hyde, 514 U.S. 749,
750-51 (1995); Harper v. Virginia Dep't of Taxation, 509 U.S.
86, 100 (1993).

                               - 7 -
a readily mobile vehicle upon a showing of probable cause.

Dyson, 527 U.S. at 467.   No further exigencies need be shown. 3

                               III.

     In sum, the trial court erred in suppressing the evidence

seized from the van on the ground that "there were no exigent

circumstances in this case."   We reverse the suppression order

and remand this matter for continued proceedings consistent with

this opinion.



                                                         Reversed.




     3
       Because the Commonwealth did not argue to the trial court
that the warrantless search of Rogers's van was incident to his
arrest, that argument has been waived on appeal. See Rule
5A:18. See generally Cason v. Commonwealth, 32 Va. App. 728,
736, 530 S.E.2d 920, 924 (2000) (The "only prerequisites to a
search of an automobile incident to arrest are that the search
is contemporaneous with the arrest and the arrestee is a recent
occupant of the vehicle."); Armstrong v. Commonwealth, 29
Va. App. 102, 112-13, 510 S.E.2d 247, 252 (1999); Glasco v.
Commonwealth, 26 Va. App. 763, 773, 497 S.E.2d 150, 154 (1998),
aff'd, 257 Va. 433, 513 S.E.2d 137 (1999).

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