Perry v. Com.
701 S.E.2d 431
| Va. | 2010Background
- 2:00 a.m. on I-66 in Arlington, vehicle with emergency flashers on shoulder; four windows and sunroof open; strong odor of marijuana detected
- Driver Valdemere Perry had suspended license; Trooper Weidhaas called for backup
- Sprurgeon admitted to smoking PCP; field test on vial showed PCP and marijuana
- Perry in back seat, demeanor similar to Sprurgeon; pat-down revealed a bulge and a vial
- Perry admitted to smoking PCP; Perry arrested for possession of PCP
- Perry moved to suppress; trial court denied; Court of Appeals affirmed the conviction
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the suppression denial was proper | Perry—would be illegal search and seizure; no lawful frisk | Weidhaas lacked reasonable suspicion or probable cause; contents were unlawfully seized | No; suppression denial affirmed on probable cause to arrest |
| Whether the Court of Appeals properly applied the right result for the wrong reason doctrine | Perry argues the Court of Appeals misapplied the doctrine | Commonwealth argues Whitehead supports affirmance on the record | Yes; Court of Appeals did not err in applying the doctrine |
| Whether the pat-down/search incident to arrest was lawful | Weidhaas exceeded scope of Terry frisk | Probable cause to arrest supported a lawful search incident to arrest | Yes; search incident to arrest valid under Chimel |
| Whether there was probable cause to arrest Perry before the pocket search | Perry did not pose immediate danger; no probable cause | Odor of drugs and PCP in vial plus behavior provided probable cause | Yes; probable cause existed before the pat-down |
| Whether the record supports the ultimate conclusion on Fourth Amendment grounds | Record insufficient to show lawful arrest | Record supports probable cause and lawful search incident to arrest | Affirmed based on proper probable cause |
Key Cases Cited
- Whitehead v. Commonwealth, 278 Va. 105 (2009) (right result for the wrong reason doctrine limits and scope)
- Chimel v. California, 395 U.S. 752 (1969) (search incident to arrest limits)
- Sokolow, 490 U.S. 1 (1989) (reasonableness of stop and frisk standard)
- Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463 (1979) (appellee may urge any record-grounded matter on appeal)
- United States v. American Ry. Express Co., 265 U.S. 425 (1924) (appellee may urge grounds in support of decree from record)
- MM v. School District of Greenville County, 303 F.3d 523 (4th Cir. 2002) (affirm on alternative grounds if supported by record)
- Mitchem v. Counts, 259 Va. 179 (2000) (proper assignment of ground to support result when record supports it)
- Chesterfield County v. Stigall, 262 Va. 697 (2001) (when record supports right reason, affirm with correct rationale)
- Eason v. Eason, 204 Va. 347 (1963) (limits on when failure to present argument below prevents doctrine)
- Bolden v. Commonwealth, 275 Va. 144 (2008) (appellate court may consider all record evidence)