                               COURT OF APPEALS OF VIRGINIA

Present: Judges Kelsey, Haley and Senior Judge Bumgardner
Argued by teleconference

COMMONWEALTH OF VIRGINIA
                                                                 MEMORANDUM OPINION * BY
v.     Record No. 2093-08-3                                       JUDGE D. ARTHUR KELSEY
                                                                      JANUARY 13, 2009
WILLIAM LARRY LASLEY


                     FROM THE CIRCUIT COURT OF RUSSELL COUNTY
                                 Michael L. Moore, Judge

                    Benjamin H. Katz, Assistant Attorney General (Robert F.
                    McDonnell, Attorney General, on brief), for appellant.

                    Jay H. Steele for appellee.


       Pursuant to Code § 19.2-398(A)(2), the Commonwealth appeals a pretrial order granting

a suppression motion in this case. The trial court held a police officer exceeded the permissible

scope of a weapons frisk during a pat down of William Larry Lasley. Because probable cause

principles authorized the officer’s action as a search incident to Lasley’s arrest, we reverse and

remand for trial.

                                                  I.

       Charged with distribution of a Schedule III drug, Lasley filed a pretrial motion to

suppress two hydrocodone pills discovered in his pocket the night he was arrested. Lasley

claimed the arresting officer violated Terry v. Ohio, 392 U.S. 1 (1968), by conducting a weapons

frisk without any reasonable suspicion that Lasley was armed and dangerous.

       The Commonwealth defended the search by offering the arresting officer’s testimony.

Consistent with his written report, attached as an exhibit to Lasley’s motion, the officer testified

that in the early morning of October 28, 2007, around 4:00 a.m. he noticed a stopped pickup

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
truck in a motel parking lot. Observing three individuals in the truck’s cab, the officer parked his

police vehicle and walked up to the truck. Through the open window, the officer noticed that

one of the three, Lasley, appeared to have “bloodshot eyes” and showed “indicators of

intoxication.” Lasley’s movements were “real lethargic,” and he held an open can of beer

between his legs. Several empty cans were visible on the floor of the truck cab.

       Suspecting Lasley of being intoxicated, the officer asked him to step out of the truck.

Outside the truck cab, Lasley appeared “very unsteady on his feet” and could not “stand up

straight.” Lasley spoke but used “very slurred speech.” Despite the officer’s several requests

that he not do so, Lasley “consistently kept putting his hands in his pockets.” Fearing for his

safety, the officer searched Lasley’s pockets. The officer found no weapons but discovered two

hydrocodone pills. He then arrested Lasley for public intoxication and drug possession.

       In support of the motion to suppress, Lasley argued the officer violated the Terry

limitations on a weapons frisk. The Commonwealth responded that the recovery of the

hydrocodone pills could be justified as a search incident to arrest. Lasley disagreed, arguing:

               This is not a search incident to an arrest, which would have made
               this search absolutely proper, because you discern intent from
               action, and if [the officer] had felt at that time, that at 4:00 o’clock
               in the morning, that this guy was drunk in public, the proper thing
               to do would have been to say, “Mr. Lasley, you’re under arrest for
               being intoxicated in public . . . and do a pat down and a search, a
               full search, and we wouldn’t be having this conversation. It’s the
               order in which the things happened that make . . . that compel that
               this evidence be suppressed.

                          *       *       *       *        *       *       *

               Again, I don’t know what was in [the officer’s] mind, but intent is
               proven by action and if he’d intended to arrest him for drunk in
               public, then he would have arrested him for drunk in public right
               then, and after that, everything is proper under the Constitution.
               But the way in which this came about, the order of the acts, makes
               this a violation both under the Federal Constitution and State
               Constitution . . . .



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       The trial court adopted Lasley’s reasoning and granted the motion to suppress. As the

court explained, “clearly, the proper course would have been if the officer was going to arrest the

defendant, was to inform him he was going to be arrested and then . . . and then do a search

incident to arrest; and I assume that it’s possible all of this could have been done, I mean that

whatever was found could have been found inevitably.” In its written order, the court held the

“officer exceeded the scope of a ‘pat-down’ search for weapons” when he retrieved the two

hydrocodone pills from Lasley’s pocket. See Pretrial Order at 5 (Aug. 20, 2008).

                                                 II.

       On appeal, the Commonwealth contends the trial court misapplied Fourth Amendment

principles by focusing on the police officer’s subjective intentions and by mistakenly concluding

that a search preceding a formal arrest cannot be a search incident to arrest. We agree the trial

court erred in both respects.

                    A. THE FOURTH AMENDMENT’S OBJECTIVE STANDARD

       “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment

analysis.” Whren v. United States, 517 U.S. 806, 813 (1996); Robinson v. Commonwealth, 273

Va. 26, 37, 639 S.E.2d 217, 223 (2007) (holding that an arresting officer’s “subjective

motivation is irrelevant” (citation omitted)). Under settled principles, an officer’s “action is

‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind,

‘as long as the circumstances, viewed objectively, justify [the] action.’” Brigham City v. Stuart,

547 U.S. 398, 404 (2006) (emphasis in original and citations omitted).

       Thus, faced with a suppression motion, a court should not limit itself “to what the

stopping officer says or to evidence of his subjective rationale,” Raab v. Commonwealth, 50

Va. App. 577, 583 n.2, 652 S.E.2d 144, 148 n.2 (2007) (en banc) (citation omitted), but should

look instead to what a reasonable, objective officer could have concluded from the totality of the


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circumstances. “Just as a subjective belief by the arresting officer would not establish probable

cause where none existed, a subjective belief by the arresting officer cannot destroy probable

cause where it exists.” United States v. Anderson, 923 F.2d 450, 457 (6th Cir. 1991).

        Consequently, the trial court erred in concerning itself with the officer’s intent at the time

of the search. It is irrelevant whether the officer thought he lacked probable cause to arrest

Lasley prior to the search, whether the officer intended to arrest Lasley after the search, or

whether the officer believed his authority was limited to conducting a Terry weapons frisk. The

only issue is a purely objective one: What arrest and search authority, if any, does the Fourth

Amendment provide a reasonable officer under these circumstances?

                          B. PROBABLE CAUSE TO ARREST & SEARCH

        Under the Fourth Amendment, “[w]hen officers have probable cause to believe that a

person has committed a crime in their presence, the Fourth Amendment permits them to make an

arrest, and to search the suspect in order to safeguard evidence and ensure their own safety.”

Virginia v. Moore, 128 S. Ct. 1598, 1608 (2008), rev’g, 272 Va. 717, 636 S.E.2d 395 (2006).

Consequently, the “standards traditionally governing a search incident to lawful arrest are not,

therefore, commuted to the stricter Terry standards by the absence of probable fruits or further

evidence of the particular crime for which the arrest is made.” United States v. Robinson, 414

U.S. 218, 234 (1973). Because a legally justifiable arrest is itself a “reasonable intrusion under

the Fourth Amendment,” it follows that “a search incident to the arrest requires no additional

justification.” Id. at 235.

        In addition, when “the formal arrest followed quickly on the heels of the challenged

search,” it is not “particularly important that the search preceded the arrest rather than vice

versa,” Rawlings v. Kentucky, 448 U.S. 98, 111 (1980), “so long as probable cause existed at the

time of the search,” Slayton v. Commonwealth, 41 Va. App. 101, 108, 582 S.E.2d 448, 451


                                                 -4-
(2003) (citation omitted). Nor does it matter whether the search occurs “at the moment the

arresting officer takes the suspect into custody or when he announces that the suspect is under

arrest.” Italiano v. Commonwealth, 214 Va. 334, 337, 200 S.E.2d 526, 528 (1973) (citations

omitted). The “best statement of this principle” puts the point this way:

               When the probable cause for an arrest exists independently of what
               the search produces, the fact that the search precedes the formal
               arrest is immaterial when the search and arrest are nearly
               simultaneous and constitute for all practical purposes but one
               transaction. To hold differently would be to allow a technical
               formality of time to control when there has been no real
               interference with the substantive rights of a defendant.

Id. at 337, 200 S.E.2d at 528-29 (citation omitted); see also Brown v. Commonwealth, 270 Va.

414, 418 n.1, 620 S.E.2d 760, 762 n.1 (2005) (finding it inconsequential that the officer

“searched” the suspect “before officially arresting him”).

       Applying these principles, we hold probable cause existed as a matter of law to arrest

Lasley for public drunkenness prior to his pat down. Code § 18.2-388 applies to intoxication as

“a place in open view, visible to the community.” Crislip v. Commonwealth, 37 Va. App. 66,

71, 554 S.E.2d 96, 98 (2001) (applying Code § 18.2-388 to a man “on his front porch in open

view of nearby neighboring homes and the public street”); cf. Tjan v. Commonwealth, 46

Va. App. 698, 709, 621 S.E.2d 669, 674 (2005). “‘Intoxicated’ means a condition in which a

person has drunk enough alcoholic beverages to observably affect his manner, disposition,

speech, muscular movement, general appearance or behavior.” Code § 4.1-100.

       While in a motel parking lot, Lasley showed several “indicators of intoxication”

including: bloodshot eyes, physical lethargy, an inability to stand upright, heavily slurred

speech, an unsteadiness on his feet, and an open beer in his possession. Given the flexible nature

of probable cause, a reasonable police officer would have had ample grounds to arrest Lasley for

violating Code § 18.2-388 and to search him incident to the arrest. See, e.g., Fierst v.


                                                -5-
Commonwealth, 210 Va. 757, 760, 173 S.E.2d 807, 810 (1970) (holding that a suspect’s

slumped posture in the car, wan or drunken appearance, “mumbly” speech, inability to locate his

license, and need for assistance in exiting the car were sufficient indicators of intoxication to

warrant his arrest); Clarke v. Commonwealth, 32 Va. App. 286, 296, 527 S.E.2d 484, 489 (2000)

(holding that a suspect’s bloodshot eyes and erratic speech pattern and the odor of alcohol about

his person provided probable cause to arrest him for public intoxication). 1

       The presence of probable cause moots Lasley’s argument that the officer exceeded the

permissible scope of a weapons frisk. See, e.g., Bunch v. Commonwealth, 51 Va. App. 491,

495, 658 S.E.2d 724, 725-26 (2008). The power to arrest and search incident to arrest

necessarily subsumes the power to stop and frisk. Nothing in Terry, after all, burdens a search

incident to arrest with the limitations “placed on a stop-and-frisk search permissible without

probable cause.” Robinson, 414 U.S. at 228. That conclusion renders it unnecessary to address

Lasley’s argument that the “search of the defendant’s person was not valid as a stop and frisk or

pat-down search.” Italiano, 214 Va. at 335, 200 S.E.2d at 527. 2




       1
          The standard for probable cause is not calibrated to “deal with hard certainties, but with
probabilities.” Slayton, 41 Va. App. at 106, 582 S.E.2d at 450 (citation omitted). Nor does it
“demand any showing that such a belief be correct or more likely true than false.” Id. (quoting
Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality)). “Finely tuned standards such as proof
beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no
place in the probable-cause decision.” Maryland v. Pringle, 540 U.S. 366, 371 (2003) (citation
and internal brackets omitted). Not even a “prima facie showing” of criminality is required.
Illinois v. Gates, 462 U.S. 213, 235 (1983) (citation omitted). Instead, probable cause “requires
only a probability or substantial chance of criminal activity, not an actual showing of such
activity.” Id. at 243 n.13. “The Constitution does not guarantee that only the guilty will be
arrested.” Baker v. McCollan, 443 U.S. 137, 145 (1979).
       2
         The Commonwealth also argues that, even if the search were invalid, the inevitable
discovery doctrine would preclude the application of the exclusionary rule. Given our holding,
we need not address this issue. “In this case, as in all others, we seek to decide cases ‘on the best
and narrowest ground available’ from the record.” Kirby v. Commonwealth, 50 Va. App. 691,
702 n.2, 653 S.E.2d 600, 603 n.2 (2007) (citations omitted).

                                                -6-
                                               III.

       Because the trial court erred as a matter of law in granting Lasley’s motion to suppress,

we reverse the suppression order and remand this case for trial.

                                                                    Reversed and remanded.




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