Jacobi Frazier v. Commonwealth of Virginia ( 2014 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Petty and Senior Judge Bumgardner
UNPUBLISHED
Argued at Chesapeake, Virginia
JACOBI FRAZIER
MEMORANDUM OPINION* BY
v. Record No. 1466-13-1 JUDGE ROBERT P. FRANK
JULY 29, 2014
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dean W. Sword, Jr., Judge1
Stephanie P. Pass (Shilling, Pass & Barlow, on brief), for appellant.
Benjamin H. Katz, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Jacobi Frazier, appellant, was convicted of possession of heroin with the intent to
distribute subsequent offense in violation of Code § 18.2-248(C). On appeal, he contends the
trial court erred in denying his motion to suppress. Specifically, he argues the police violated his
rights under Miranda v. Arizona, 348 U.S. 346 (1966), by requesting consent to search. Finding
no error, we affirm.
BACKGROUND
Detective T. McAndrew of the Portsmouth Police Department received a telephone call
from a confidential reliable informant who stated that a black male named Jacobi Frazier, later
identified as appellant, was in possession of heroin and would be in the area of a particular
convenience store on Seventh Street. The informant told McAndrew that he had personally
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
The Honorable James C. Hawks presided over proceedings that are the subject of this
appeal.
observed appellant with the heroin and that the drugs would be hidden in appellant’s pants. Prior
to this occasion, this informant had provided reliable information to McAndrew on a number of
occasions that led to several “arrests, convictions and recoveries.”
Upon receiving this information, McAndrew and other detectives met in the area of the
convenience store and set up surveillance. Within minutes, a car pulled into the lot with
appellant seated in the front passenger seat. McAndrew recognized appellant, having known him
for fifteen years. McAndrew placed appellant in handcuffs and transported appellant to his
office at the police station. After arriving at the office, McAndrew advised appellant that he
knew appellant had heroin hidden in his pants, and he told appellant that appellant could either
consent to a search or wait for McAndrew to secure a search warrant. Appellant then became
“very cooperative,” and McAndrew removed the cuffs from appellant’s hands. Appellant pulled
his jeans down, and a plastic bag containing heroin fell to the floor.
Appellant testified that McAndrew told him to stand up and take his clothes off.
Appellant has been previously convicted of two felonies.
At the suppression hearing, appellant maintained that appellant had not been advised of
his rights pursuant to Miranda, and did not consent to what he described as a strip search. The
Commonwealth argued that the information McAndrew received from the reliable informant
provided him with probable cause to arrest appellant and search him incident to that arrest.
Appellant did not challenge probable cause below. His argument was limited to a Miranda
violation.2
The trial court denied the motion to suppress, explaining that it relied upon the
Commonwealth’s argument that the police had probable cause to arrest appellant based solely on
2
Appellant also argued to the trial court that the police conducted a strip search. He did
not argue this issue on brief, and we do not consider it on appeal.
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the reliable informant’s information. The trial court implicitly rejected that appellant was
subjected to a strip search.
This appeal follows.
ANALYSIS
The trial court denied appellant’s motion to suppress, finding the police had probable
cause to arrest and that the search was performed pursuant to a lawful arrest. Appellant, neither
at trial nor on appeal, challenges that ruling.
When reviewing a trial court’s denial of a motion to suppress, “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 v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261
(1997) (en banc) (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)). The burden is on
the appellant to show that the denial of his suppression motion, when the evidence is considered
in the light most favorable to the Commonwealth, was reversible error. McCain v.
Commonwealth, 261 Va. 483, 489-90, 545 S.E.2d 541, 545 (2001). “‘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, 25 Va. App. at 198, 487 S.E.2d
at 261 (quoting Ornelas, 517 U.S. at 691).
Whether the Fourth Amendment has been violated is a question to be determined from all
the circumstances. McCain v. Commonwealth, 275 Va. 546, 552, 659 S.E.2d 512, 516 (2008).
Review of the existence of probable cause or reasonable suspicion involves application of an
objective rather than a subjective standard. Terry v. Ohio, 392 U.S. 1, 21-22 (1968).
Appellant first argues that appellant’s consent to search was obtained in violation of his
Miranda rights. He reasons that because he was in custody and was not advised of his rights
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under Miranda, his consent to the search must be suppressed along with the heroin recovered as a
result of the search. The Commonwealth responds that this argument does not assign error to the
trial court’s ruling, specifically, that probable cause permitted appellant’s arrest and the search
incident to arrest is a well-recognized exception to the warrant requirement. See United States v.
Robinson, 414 U.S. 218, 234-35 (1973) (explaining that one of the exceptions to the warrant
requirement is a search incident to arrest based on the need to disarm the suspect in order to take
him into custody and the need to preserve evidence for later use at trial).
The trial court, by agreeing with the Commonwealth’s argument, concluded that probable
cause supported appellant’s arrest, and therefore any search incident to that arrest was proper. In
so ruling, the court implicitly rejected appellant’s arguments at trial and accepted the
Commonwealth’s position that because McAndrew had probable cause for an arrest, the issue of
consent was not before the court.
Finding the police had probable cause to arrest appellant, and searched appellant
incidental to a valid arrest, we need not address whether the detective’s request for consent
violated appellant’s Miranda rights, nor whether inevitable discovery applies. See Luginbyhl v.
Commonwealth, 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) (“[A]n appellate court decides
cases ‘on the best and narrowest ground available.’” (quoting Air Courier Conference v. Am.
Postal Workers Union, 498 U.S. 517, 531 (1991) (Stevens, J., concurring))).
CONCLUSION
For the foregoing reasons, we find the trial court did not err in denying appellant’s
motion to suppress.
Affirmed.
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