COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia

EMMANUEL PHIL WEST
OPINION BY
v. Record No. 1405-00-1 JUDGE NELSON T. OVERTON
JULY 24, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Edward L. Hubbard, Judge

David Redden for appellant.

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

Emmanuel West, appellant, appeals his felony conviction of
possessing cocaine with the intent to distribute, in violation
of Code 18.2-248. The sole issue on appeal is whether the
trial court erred by denying appellant's motion to suppress the
evidence obtained as the result of a search. Finding that
appellant was improperly searched, we reverse the judgment of
the trial court, and we dismiss the indictment.
FACTS
While on patrol, Detectives Polak and Womack were stopped
at a traffic light next to appellant's station wagon. They
noticed the vehicle had thirty-day tags, the information on
which was omitted or obscured. The officers followed appellant
while attempting to better observe the license plates when
appellant made a turn without signaling. After appellant made a
second turn without using his signal, appellant parked the car.
Polak approached the car and asked appellant for his
operator's license. Appellant stated he did not have a license
and provided a Virginia identification card. After Polak
confirmed appellant was not licensed, Polak asked appellant to
get out of the car. Polak placed appellant in handcuffs and
informed him he was under arrest for driving without a license.
Polak was filling out the summonses for driving without a
license and failing to signal a turn when he noticed a bulge in
appellant's right shoe. Polak immediately looked under the flap
of the shoe and found the bag of crack cocaine.
Polak testified he was in the process of determining
whether appellant had any history of failure to appear in court
when he noticed the bulge. He testified he normally would issue
summonses for the two initial offenses, but he was going to the
magistrate to get a warrant for the felony and the magistrate
would decide whether to release appellant on summonses.
ANALYSIS
The General Assembly expressed its preference for the
issuance of a summons in lieu of an arrest warrant for most
misdemeanor cases by enacting Code 19.2-74. Code 19.2-74,
in pertinent part, provides:
Whenever any person is detained by or is in
the custody of an arresting officer for any
violation committed in such officer's
presence which offense is a violation of any
county, city or town ordinance or of any
provision of this Code punishable as a Class
1 or Class 2 misdemeanor or any other
misdemeanor for which he may receive a jail
sentence, except as otherwise provided in
Title 46.2, or 18.2-266, or an arrest on a
warrant charging an offense for which a
summons may be issued, and when specifically
authorized by the judicial officer issuing
the warrant, the arresting officer shall
take the name and address of such person and
issue a summons or otherwise notify him in
writing to appear at a time and place to be
specified in such summons or notice. Upon
the giving by such person of his written
promise to appear at such time and place,
the officer shall forthwith release him from
custody. However, if any such person shall
fail or refuse to discontinue the unlawful
act, the officer may proceed according to
the provisions of 19.2-82.

Anything in this section to the contrary
notwithstanding, if any person is believed
by the arresting officer to be likely to
disregard a summons issued under the
provisions of this subsection, or if any
person is reasonably believed by the
arresting officer to be likely to cause harm
to himself or to any other person, a
magistrate or other issuing authority having
jurisdiction shall proceed according to the
provisions of 19.2-82.

* * * * * * *

Any person refusing to give such written
promise to appear under the provisions of
this section shall be taken immediately by
the arresting or other police officer before
a magistrate or other issuing authority
having jurisdiction, who shall proceed
according to provisions of 19.2-82.

This preference also applies to Class 3 and 4 misdemeanors.
Code 19.2-74(A)(2). Code 46.2-936 parallels Code 19.2-74
in reiterating the preference for issuance of a summons with
regard to violations of the Motor Vehicle Code.
Code 19.2-74 and 46.2-936 mandate that the arresting
officer "shall" issue a summons in the absence of an express
exception to the statutes, or a reasonable belief that the
person arrested will fail to appear in court on his or her
promise or fails to discontinue the unlawful act. Polak stopped
appellant for failing to signal a turn in violation of Code
46.2-848, a traffic infraction, and subsequently discovered
appellant was also in violation of Code 46.2-300, for driving
without a valid operator's license, a Class 2 misdemeanor.
Neither of these offenses fall under any exception directing a
suspect to be taken directly to a magistrate. Appellant stopped
the car before Polak approached him, and Polak had already
started the paperwork to have the car towed. Therefore,
appellant ceased the unlawful behavior. Further, Polak did not
obtain any information to suggest appellant would not appear in
court upon his promise. Accordingly, Code 19.2-74 and
46.2-936 required Polak to issue summonses for the offenses.
In Knowles v. Iowa, 525 U.S. 113 (1998), the United States
Supreme Court declined to expand the search incident to arrest
exception to the Fourth Amendment prohibition against
warrantless searches. Unless either of the two historical
rationales for the exception arise in a specific situation,
i.e., "(1) the need to disarm the suspect in order to take him
into custody, and (2) the need to preserve evidence for later
use at trial," id. at 487, the Court held there is no search
incident to citation exception. Id. at 488. See also Lovelace
v. Commonwealth, 258 Va. 588, 596, 522 S.E.2d 856, 860 (1999)
("After Knowles, an 'arrest' that is effected by issuing a
citation or summons rather than taking the suspect into custody
does not, by itself, justify a full field-type search."); Rhodes
v. Commonwealth, 29 Va. App. 641, 645, 513 S.E.2d 904, 906
(1999).
The Commonwealth nevertheless argues that Polak had
probable cause to believe appellant committed a Class 2
misdemeanor, a jailable offense, and that appellant was in the
posture of a custodial arrest, and, therefore, the search was
not unreasonable. Code 19.2-74 and 46.2-936 specifically
require the issuance of a summons in lieu of a custodial arrest
regardless of the classification of the misdemeanor offense.
The officer is directed to take the name and address of the
suspect, obtain his or her promise to appear, and release the
suspect unless the facts warrant otherwise.
That Polak had not yet determined whether appellant had any
history of failure to appear in court and had not decided
whether he should take appellant to the magistrate for a
warrant, is also of no import. Polak was operating under the
preference for the issuance of a summons, without evidence to
merit going to the magistrate, when he observed the bulge and
retrieved the cocaine. In the absence of a particularized
concern about a weapon or need to collect evidence for the
charged offenses, the officer was not authorized to conduct a
full search incident to the "arrest" by summons or citation.
Farrow v. Commonwealth, 31 Va. App. 517, 520-21, 525 S.E.2d 11,
13 (2000). The bulge in appellant's shoe raised neither a
concern for safety nor preservation of evidence.
The Commonwealth also argues Polak testified he was going
to take appellant to the magistrate in any event. However, the
record reflects Polak intended to go to the magistrate because
he found the cocaine, not because he had any indication
appellant would not appear or that he was a threat to himself or
others. The officer admitted he would normally release a person
upon his signature for these offenses assuming none of the
exceptions applied. "Only if [appellant] had failed or refused
to discontinue the act [or Polak had reason to believe appellant
would not appear or was a threat to himself or others] could the
officer have effected a custodial arrest and taken [appellant]
before the magistrate." Lovelace, 258 Va. at 596, 522 S.E.2d at
860.
Polak had no reason, at the point he searched appellant, to
believe appellant was not going to appear in court on his
promise, nor did he believe appellant was a threat to himself or
others. Appellant had not refused to discontinue his unlawful
acts. The bulge in the shoe did not raise any concerns about
the officer's safety, nor did Polak believe the bulge would
provide evidence in reference to the initial offenses.
Appellant was not then subject to detention for any other
offense or suspected offense. Virginia law contains a clear
preference for summonses, and Polak was required to issue a
summons or citation for the offenses. "[T]he officer conducted
a 'search incident to citation' which in the absence of one of
the two [historical rationales] was unreasonable under the
Fourth Amendment." Rhodes, 29 Va. App. at 646, 513 S.E.2d at
906.
For the above stated reasons, the judgment of the trial
court is reversed, and the indictment charging possession with
the intent to distribute cocaine is dismissed.
Reversed and dismissed.
Code 46.2-937 directs that "[f]or purposes of arrest,
traffic infractions shall be treated as misdemeanors."
The recent United States Supreme Court decision of Atwater
v. Lago Vista, 121 S. Ct. 1536, 1557 (2001) (holding "[i]f an
officer has probable cause to believe that an individual has
committed even a very minor criminal offense in his presence, he
may, without violating the Fourth Amendment arrest the
offender"), does not apply in this case. In Atwater, the
relevant Texas law expressly allowed for the custodial arrest of
persons violating a traffic offense and gave discretion to the
arresting officer to issue a citation in lieu of arrest.

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