The Fourth Amendment Still Alive in Virginia
In a rare reversal, the Court of Appeals of Virginia recently overturned the conviction of Bryant Bogle on the grounds that the search of his person by the police violated the rights guaranteed to him under the Fourth Amendment to the United States Constitution. In Bogle v. Commonwealth, a case argued by Horace F. Hunter of Hunter & Lipton, PC, the Court of Appeals did what it almost never does: overturn the conviction of a defendant based on lack of probable cause by the police officers to conduct a warrantless search.
Bryant Bogle, our client, was charged with the unlawful distribution of cocaine that arose from search of his person by a narcotics detective with the City of Richmond Police Department’s narcotics unit. Bogle was identified as one of three individuals involved in drug activity in an area of the city under heavy police surveillance. When Detective Naoroz approached Bogle, he asked for identification and if he (the officer) could perform a pat down search for “any weapons or anything illegal.” Bogle consented to a pat down put never consented to a full search of his person. At the time of the pat down, the detective felt a plastic bag in the front pants pocket of Bogle. The detective repeatedly asked Bogle what was in his pocket, and Bogle responded that it was a cell phone. In disbelief, the detective searched the inside of his pocket and recovered a large quantity of crack cocaine.
At the hearing on the motion to suppress, Detective Naoroz testified that narcotics are frequently packaged in plastic bags in the Richmond area. The defense argued that the officer lacked probable cause under the “plain feel doctrine” to remove the plastic bag because the item in question did not immediately appear to be contraband solely from tactile perception of the detective. The trial court ruled it was reasonable under the circumstances for the detective to believe that the substance was contraband and overruled the motion to suppress.
On appeal, Hunter relied primarily on three cases to support his argument: Terry v. Ohio, Minnesota v. Dickerson and Murphy v. Commonwealth.
Terry v. Ohio allows for a pat down search for weapons under a reasonable articulable suspicion standard only to prevent a violent response aimed at a police officer. Minnesota v. Dickerson held that if an officer lawfully pats down a suspect’s outer clothing and the items shape makes itself readily apparent, then there has been no invasion of privacy if seizure results. If the object is contraband, its warrantless seizure would be justified by the same considerations that inhere in the plain view context. However, if the object is not immediately apparent, then seizure or further search is not allowed. In Murphy v. Commonwealth, officers executed a search warrant for various drugs and other items related to a drug trade at a residence where Murphy was present. Murphy was searched and an officer felt a plastic bag which he believed to be marijuana and seized the bag. The Supreme Court disagreed, holding that the officer’s actions “exceeded the permissible scope of that limited search (for weapons). When the character of the item is not immediately apparent from the “pat down” search, and the officer does not reasonably suspect that the item is a weapon, further search regarding the item is not allowed because such a search is unrelated to the justification for the frisk.
The Court of Appeals found Bogle’s case indistinguishable from Murphy. The mere presence of a plastic bag in Bogle’s pocket, containing some unknown substance, is not enough to believe that the substance is contraband. A plastic bag could accommodate any number of items. Although rarely siding with the defendant, the Court found unpersuasive the government’s contention that the detective is the person best equipped to make probable cause determinations. That based on their training and experience, police officers should be allowed to search if they genuinely believe that contraband will be found as a result.
In reversing the conviction in this case, the Court of Appeals may be signaling that it will more heavily scrutinize the actions of police officers when they act outside the judicial process by conducting warrantless searches.
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