McGhee v. Com.
701 S.E.2d 58
| Va. | 2010Background
- On December 18, 2007, Officer Dalton observed McGhee in a vehicle parked beside a closed restaurant at 11:15 p.m.
- There was a strong odor of alcohol, slurred speech, and very bloodshot eyes; McGhee held license and registration out the window.
- McGhee was arrested for public intoxication after he refused to exit and became belligerent and loud.
- Dalton patted McGhee down for weapons; no firearm was found.
- Dalton then searched the area of the vehicle; packaging for crack cocaine was found behind the driver’s seat, a cocaine-positive folded bill under the visor, and larger cocaine quantities plus related paraphernalia in the glove box and back seat.
- An inventory towing report was prepared following the search; McGhee moved to suppress, but the trial court denied the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause for arrest for public intoxication | McGhee argues lack of impairment evidence. | McGhee relies on lack of visible impairment per Brown. | Probable cause exists due to odor plus impairment signs. |
| Validity of vehicle search (pre-Gant) | Search was improper as inventory or search incident to arrest. | Gant should apply retroactively to restrict such searches. | Search incident to arrest valid under pre-Gant law; no need to reach inventory issue. |
Key Cases Cited
- Jones v. Commonwealth, 279 Va. 52, 688 S.E.2d 269 (2010) (probable cause standard for arrest in presence of crime; review standard on suppression)
- Hill v. Lee, 209 Va. 569, 166 S.E.2d 274 (1969) (mere odor of alcohol insufficient; combined with other factors may show intoxication)
- United States v. Brown, 401 F.3d 588 (4th Cir. 2005) (posture on impairment required for intoxication under Virginia law)
- Glasco v. Commonwealth, 257 Va. 433, 513 S.E.2d 137 (1999) (precedent for search incident to arrest of vehicle passenger compartment)
- Thornton v. United States, 541 U.S. 615, 124 S. Ct. 2127 (2004) (limits on vehicle searches incident to arrest)
- Arizona v. Gant, 556 U.S. _, 129 S. Ct. 1710 (2009) (limits on search incident to arrest for vehicle when arrestee unsecured)
- Air Courier Conference v. American Postal Workers Union, 498 U.S. 517 (1991) (principle of narrow grounds for decision; inventory search considerations)
- United States v. Johnson, 457 U.S. 537 (1982) (retroactivity/application context relevant to arguments)