Commonwealth of Virginia v. Scott Hunter Horton ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons and Frank
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 0418-99-1 JUDGE JERE M. H. WILLIS, JR.
JULY 20, 1999
SCOTT HUNTER HORTON
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General; Ruth M.
McKeaney, Assistant Attorney General, on
brief), for appellant.
Erin J. Goodman (George Holton Yates &
Associates, P.C., on brief), for appellee.
On appeal from an order suppressing evidence obtained in
the search of a vehicle, the Commonwealth contends that the
search was lawful because it was incident to the arrest of the
vehicle's occupants. We agree and reverse the judgment of the
trial court.
"We view the evidence in a light most favorable to . . .
the prevailing party below, and we grant all reasonable
inferences fairly deducible from that evidence." Commonwealth
v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
On July 15, 1998, police officers executed a search warrant
at a residence in Newport News. During the search, Officer Bell
and Detective Price received telephone calls from Robert and Amy
Price (the Prices), inquiring about the purchase of drugs. The
officers encouraged the couple to come to the house.
Soon thereafter, a Ford Bronco driven by Scott Hunter
Horton arrived and parked on the public street in front of the
residence. The Prices, who were passengers in the Bronco, got
out and walked up to the house. They were met on the porch by
Detective Price, who was posing as a drug dealer. The three
spoke for a moment and then entered the house, where the
officers identified themselves and arrested the Prices.
Upon the Prices' arrest, Detective Price approached the
Bronco, identified himself to Horton, explained the situation,
and requested permission to search the vehicle. Horton replied,
"I'd rather you did not." At the same time, Sergeant Trawitzki
approached the vehicle and informed Horton that he was going to
search the vehicle's passenger compartment incident to the
Prices' arrest, but that Horton was free to leave.
Upon searching the vehicle, the officers found in the rear
passenger seat a backpack belonging to Horton that contained
drugs. Horton was charged with possession of marijuana with
intent to distribute, in violation of Code § 18.2-248.1, and
possession of cocaine with intent to distribute, in violation of
Code § 18.2-248.
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Holding that the warrantless search of the Bronco violated
Horton's Fourth Amendment rights, the trial court granted his
motion to suppress as evidence the drugs found in the search.
The Commonwealth argues that the search was lawful because it
was incident to the arrest of occupants of the vehicle. We
agree.
[W]hen a policeman has made a lawful
custodial arrest of the occupant of an
automobile, he may, as a contemporaneous
incident of that arrest, search the
passenger compartment of that automobile.
New York v. Belton, 453 U.S. 454, 460 (1981). This rule applies
whether the occupant arrested is the driver or a passenger. See
United States v. Ortiz, 63 F.3d 952, 954 (1995).
The Prices were placed under lawful custodial arrest after
they attempted to purchase drugs from the police officers.
Immediately prior to their arrest, they had been passengers in
the Bronco driven by Horton. The issue raised in this appeal is
whether the search of the Bronco was made "as a contemporaneous
incident of" the Prices' arrest. We hold that it was.
The fact that the Prices were taken into custody before the
search does not alter the foregoing rule. See Glasco v.
Commonwealth, 257 Va. 433, 438-39, 513 S.E.2d 137, 140 (1999).
"A police officer may search the passenger
compartment of an automobile incident to the
lawful custodial arrest . . . even if the
arrestee has been separated from his car
prior to the search."
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Id. at 438, 513 S.E.2d at 140 (citation omitted). In Glasco,
the police officer initiated contact after Glasco had exited his
vehicle and was walking toward a house across the street. The
police searched the vehicle after arresting Glasco and securing
him in the rear of a police cruiser.
"[O]fficers may conduct valid searches
incident to arrest even when the officers
have secured the suspects in a squad car and
rendered them unable to reach any weapon or
destroy evidence."
Id. at 439, 513 S.E.2d at 140 (citation omitted).
In White v. Commonwealth, 24 Va. App. 446, 482 S.E.2d 876(1997), White had pulled into a driveway and begun walking
rapidly away from his car before the police officer initiated
contact with him. Upholding the search of White's car, we said:
Subsequent to his custodial arrest, the
passenger compartment of the vehicle of
which he had been a "recent occupant" was
searched, producing a plastic bag containing
crack cocaine. The search was performed
pursuant to a lawful custodial arrest and
was contemporaneous with the arrest.
Id. at 451, 482 S.E.2d at 878.
The search of Horton's vehicle flowed immediately and
without temporal disruption from the Prices' arrest. Because
the Prices were occupants of the vehicle and the search was a
contemporaneous incident of their arrest, the search was lawful,
and the trial court erred in granting Horton's motion to
suppress.
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The judgment of the trial court is reversed.
Reversed.
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