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                                                                                                   Tuesday   27th
October,  1998.
Curtis S. Rhodes,                                                                                            Appellant,
against                                                                    Record No.  1292-97-2
Circuit Court No. CR96-792
Commonwealth of Virginia,                                                  Appellee.
Upon a Petition for Rehearing En Banc
Before the Full Court
On September  18,  1998 came the appellant, by court-appointed
counsel, and filed a petition praying that the Court set aside the
judgment rendered herein on September  15,  1998, and grant a rehearing
en banc thereof.
On consideration whereof, the petition for rehearing en banc
is granted, the mandate entered herein on September  15,  1998 is stayed
pending the decision of the Court en banc, and the appeal is
reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule  5A:35.
It is further ordered that the appellant shall file with the clerk of
this Court ten additional copies of the appendix previously filed in
this case.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk




COURT OF APPEALS OF VIRGINIA
Present:    Chief Judge Fitzpatrick, Judges Benton and Elder
Argued at Richmond, Virginia
CURTIS S. RHODES
OPINION BY
v.    Record No.  1292-97-2                                            CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                                       SEPTEMBER  15,  1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Oliver A. Pollard, Jr., Judge
Mary Katherine Martin, Senior Assistant
Public Defender, for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
This appeal arises from the trial judge's denial of a motion
to suppress evidence obtained during a warrantless search.
Curtis Rhodes contends the trial judge erred in holding that a
police officer lawfully searched Rhodes incident to issuing him a
summons for violating a city ordinance.    In view of our recent
decision in Lovelace v. Commonwealth,  27 Va. App.  575,  500 S.E.2d
267  (1998), we affirm the trial judge's refusal to suppress the
evidence.
I.
The evidence proved that Rhodes was standing in the front
yard of a private residence when Officer Carpenter saw him set a
beer bottle on the porch of the residence.    After the officer
exited his vehicle and made inquiries of Rhodes regarding the
beer, Rhodes told the officer he set the beer bottle on the porch




"because it was open."    The officer testified that he "placed
[Rhodes] in custody" for having an open container of alcohol in
public in violation of a city ordinance and that his "intentions
were to release  [Rhodes] on a summons."    The officer then asked
Rhodes if he had any weapons or narcotics on his person.    After
Rhodes replied that he did not, the officer "patted  [Rhodes']
exterior" and felt a small rock in Rhodes' pants pocket.    When
the officer asked Rhodes what was in his pocket, Rhodes said he
did not know.    The officer removed the item from Rhodes' pocket,
examined the chunk of white, rock-like substance, and arrested
Rhodes for possession of cocaine.
The trial judge overruled Rhodes' motion to suppress and
convicted Rhodes of possession of cocaine in violation of Code
§  18.2-250.
II.
Rhodes contends that Code  §  19.2-74(A)(2), which requires a
police officer under certain conditions to issue a summons or
notice to appear and then "release  [the individual] from
custody," does not authorize the officer to make a "custodial
arrest."    Therefore, Rhodes contends an officer may not conduct a
full search incident to that detention.    The Commonwealth
contends the officer's search was lawful as a search incident to
arrest.
We recently addressed this precise issue in Lovelace v.
Commonwealth,  27 Va. App.  575,  500 S.E.2d  267  (1998).    As in this
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case, a police officer detained Lovelace after the officer saw
Lovelace drinking in public from an open container of beer.    The
officer ordered Lovelace to lie face down on the ground and asked
Lovelace if he had any guns or drugs.    Id. at  580-81,  500 S.E.2d
at  270.    When Lovelace did not respond, the officer conducted a
patdown search and detected an item in Lovelace's pocket that
felt like a bag.    The officer removed the item, which contained
cocaine and marijuana, and arrested Lovelace for possession of
the controlled substances.    Id. at  581,  500 S.E.2d at  270.    The
trial judge denied the motion to suppress the drugs found in
Lovelace's pocket.    Id. at  582,  500 S.E.2d at  270.
In response to Lovelace's argument that the detention for
drinking from an open container of alcohol in violation of Code
§  4.1-308 did not authorize the officer to conduct a search
incident to arrest, we held that "[t]he existence of probable
cause to arrest gave  [the officer] constitutional authority to
conduct a full search of  [the defendant] incident to that
arrest."    Lovelace,  27 Va. App. at  583,  500 S.E.2d at  271.    In
our decision, we addressed Code  §  19.2-74(A)(2), which provides
the following protocol for issuing the appropriate summons or
citation for an offense which carries no penalty of active jail
time:
Whenever any person is detained by or is in
the custody of an arresting officer for a
violation of any county, city, or town
ordinance or of any provision of this Code,
punishable as a Class  3 or Class  4
misdemeanor or any other misdemeanor for
which he cannot receive a jail sentence,
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.  .  . 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 of
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  [Code]
§  19.2-82.
We ruled that Code  §  19.2-74 "does not delimit  [an officer's]
constitutional authority to search," Lovelace,  27 Va. App. at
584,  500 S.E.2d at  271-72, and reasoned as follows:
[T]hat code section contains no language
nullifying the officer's ability to search
based on the existence of probable cause.    We
hold that the existence of probable cause to
arrest pursuant to the Constitution is both
necessary and sufficient.    The Constitution
does not require a full custodial arrest to
permit a complete search of the arrestee; nor
does Code  §  19.2-74 impose such a
requirement.  .  .                                                       [N]othing in Code
§  19.2-74 indicates the legislature's intent
to abrogate the authority to search based on
probable cause.    Finally, even if the
legislature did so intend, violation of the
statute would not require suppression of
evidence obtained in contravention of its
terms, absent express provision to the
contrary by the legislature.
Lovelace,  27 Va. App. at  584-85,  500 S.E.2d at  272  (citations
omitted).
For these reasons, we affirm the trial judge's denial of
Rhodes' motion to suppress.    See Commonwealth v. Burns,  240 Va.
171,  174-75,  395 S.E.2d  456,  457  (1990)  (holding that a decision
by a panel of this Court is precedent under the rules of stare
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decisis).
Affirmed.
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Benton, J., dissenting.
I dissent because Lovelace v. Commonwealth,  27 Va. App.  575,
500 S.E.2d  267  (1998), is contrary to our decision in Stanley v.
Commonwealth,  16 Va. App.  873,  433 S.E.2d  512  (1993).    In
addition, Lovelace contains a "'flagrant error or mistake,'" see
Commonwealth v. Burns,  240 Va.  171,  174,  395 S.E.2d  456,  457
(1990), and should not be relied upon in upholding the search
under the circumstances presented in this case.    The principle of
stare decisis does not require us to "perpetuate  .  .  . an
incorrect application of the law."    Nunnally v. Artis,  254 Va.
247,  253,  492 S.E.2d  126,  129  (1997).    See also Home Brewing Co.
v. City of Richmond,  181 Va.  793,  799,  27 S.E.2d  188,  190  (1943)
("The rule of stare decisis does not apply where the former
decision has misunderstood or misapplied the law or is contrary
to reason.").    Thus, I believe Lovelace should be abandoned by
this Court acting en banc.
It is well established that the police may conduct a full
search incident to a lawful custodial arrest.    See United States
v. Robinson,  414 U.S.  218,  235  (1978).    "[I]t is the fact of
custodial arrest which gives rise to the authority to search."
Id. at  236  (emphasis added); Gustafson v. Florida,  414 U.S.  260,
266  (1973).    A custodial arrest for a minor offense and search
incident to that arrest are constitutionally unreasonable where
by statute a state has "abjured the authority to execute
custodial arrests for  [such minor] offenses."    United States v.
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Mota,  982 F.2d  1384,  1388-89  (9th Cir.  1993).    See also People v.
Bland,  884 P.2d  312,  318  (Colo.  1994)  (holding that where statute
requires officer to issue notice or summons for violation of
minor offense, custodial arrest and search incident to such
arrest are prohibited); Barnett v. United States,  525 A.2d  197,
199  (D.C.  1987)  (holding that full custodial arrest for violation
of pedestrian traffic regulation violates statute requiring
issuance of notice of infraction and that search incident to
arrest invalid); Thomas v. State,  614 So.2d  468,  471  (Fla.  1993)
(holding full custodial arrest and search incident thereto
unreasonable when person is charged with violation of minor
ordinance under a statute that provides for only limited
detention for purpose of issuing ticket, summons, or notice);
State v. Martin,  253 N.W.2d  404,  405-06  (Minn.  1977)  (holding
that custodial arrest for petty misdemeanor offense was illegal
where state rules provide that officer must issue citation for
misdemeanor not punishable by incarceration and that search
incident to arrest was invalid).
We have recognized a significant distinction between
custodial and non-custodial arrests.    Compare e.g., Glasco v.
Commonwealth,  26 Va. App.  763,  772,  497 S.E.2d  150,  154  (1998)
(after placing defendant under "custodial arrest" for failure to
have a valid driver's license, officer was authorized to conduct
search of defendant incident to that arrest), with Stanley,  16
Va. App. at  877,  433 S.E.2d at  515  (holding that absent a
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reasonable articulable suspicion that the operator of a motor
vehicle is armed and dangerous, a police officer may not search
the operator incident to a routine traffic stop), and May v.
Commonwealth,  3 Va. App.  348,  353,  349 S.E.2d  428,  431  (1986)
("'The similarly noncoercive aspect of ordinary traffic stops
prompts us to hold that persons temporarily detained pursuant to
such stops are not "in custody" for the purposes of Miranda.'"
(quoting Berkemer v. McCarty,  468 U.S.  420,  440  (1984))).    Not
only does the Lovelace decision fail to recognize that
distinction, it announces a rule that is plainly contrary to our
holding in Stanley.
In Stanley, an officer stopped the operator of a motor
scooter for not wearing a helmet, a violation of Code  §  46.2-910,
for which the penalty is a fine of not more than fifty dollars.
Stanley,  16 Va. App. at  874,  433 S.E.2d at  513.    We ruled that
even though the officer had probable cause to believe the offense
occurred and to detain the operator, the officer was not
authorized to conduct a search incident to a routine traffic stop
unless he could satisfy the requirements of Terry v. Ohio,  392
U.S.  1  (1968).    See Stanley,  16 Va. App. at  875-77,  433 S.E.2d at
514-15.    See also Sattler v. Commonwealth,  20 Va. App.  366,  369,
457 S.E.2d  398,  400  (1995).1    The detention in Stanley, as in
1In addition to Stanley and Sattler, we also applied the
Terry requirements in Nesbit v. Commonwealth,  15 Va. App.  391,
424 S.E.2d  239  (1992).    In Nesbit, we held that an officer's
search of the defendant was not an unlawful search or seizure
when the officer, who intended to issue the defendant a summons
for violating a city ordinance prohibiting drinking alcohol in
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Lovelace and this case, was one in which the officer was governed
by the protocol of Code  §  19.2-74(A)(2).
The distinctive aspect of a non-custodial arrest is embodied
in the Code of Virginia.    Code  §  19.2-74(A)(2) by its express
terms does not permit an officer to effect a custodial arrest for
a non-jailable offense, except under the limited circumstances
specified in the statute.    In pertinent part, the statute reads
as follows:
Whenever any person is detained by or is in
the custody of an arresting officer for a
violation of any county, city, or town
ordinance or of any provision of this Code,
punishable as a Class  3 or Class  4
misdemeanor or any other misdemeanor for
which he cannot receive a jail sentence,
except as otherwise provided in Title  46.2,
or to the offense of public drunkenness as
defined in  §  18.2-388, 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
public, detained the defendant in a "high crime area," noticed
the defendant kept his hand in his pants pockets, and suspected
the defendant might have a weapon.    When the officer asked the
defendant to remove his hand from his pocket, the defendant
refused and acted fidgety, turned, and attempted to flee.    Id. at
393,  434 S.E.2d at  240.    We noted the following:
Whether the circumstances justify an
inference that the suspect may be armed and
dangerous depends upon "the 'characteristics
of the area' where the stop occurs, the time
of the stop  .  .  . as well as any suspicious
conduct of the person accosted such as an
obvious attempt to avoid officers or any
nervous conduct on the discovery of their
presence."
Id.  (citation omitted).    We upheld the search because the
circumstances reasonably suggested that Nesbit was armed and
dangerous.    See id.
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place to be specified in such summons or
notice.    Upon the giving of 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  [and bring the person before a
magistrate].
Code  §  19.2-74(A)(2).    In addition, Code  §  19.2-74(A)(3) provides
that "[a]ny 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."    Thus,
except as provided in the statute, the detention of an individual
for the purpose of issuing a citation or summons under Code
§  19.2-74(A)(2) for a non-jailable offense is not a "custodial
arrest" and does not create a right to search that individual
incident to that detention.
"A statute that mandates issuance of a notice or summons and
provides for release upon signing a promise to appear will
thereby prohibit custodial arrests."    Bland,  884 P.2d at  318.
Thus, a police officer may not search an individual incident to
the issuance of a summons or citation for an offense which does
not carry an active jail sentence unless:                                 (1) the officer has
reasonable suspicion that the individual is armed and dangerous,
or  (2) to search for evidence or instrumentalities of the
specific crime for which the officer has probable cause to issue
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the summons or citation or make an arrest.    See  3 Wayne R.
LaFave, Search and Seizure  §  5.2(h), at  96,  99  (3d ed.  1996).
See also Stanley,  16 Va. App. at  877,  433 S.E.2d at  515; Bland,
884 P.2d at  321.    This limitation on the power of a police
officer represents both a judicial and legislative recognition
that the dangers presented in the context of a temporary
detention for the purpose of issuing a citation are no greater
than those presented in the stop-and-frisk situations involved in
Terry.    As in Terry, when a police officer issues a summons under
circumstances not warranting a custodial arrest, the
circumstances involve a brief encounter where the mere
possibility of danger cannot justify any and all searches the
officer may wish to conduct.    See LaFave, supra, at  96.    Instead,
the officer must have a reasonable belief that the individual is
armed and dangerous or that the person has secreted on his person
some instrumentalities of the specific crime for which the
officer has probable cause to arrest.    See id. at  99.
In this case, the officer's search of Rhodes violated the
Fourth Amendment's prohibition against unreasonable searches and
seizures.    See Terry,  392 U.S. at  9.
To conduct a patdown search, a police officer
must be able to "'"point to specific and
articulable facts which, taken together with
rational inferences from those facts,"'
reasonably lead him to conclude, 'in light of
his experience, that "criminal activity may
be afoot" and that the suspect "may be armed
and presently dangerous."'"
Sattler,  20 Va. App. at  368,  457 S.E.2d at  400  (citations
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omitted)  (emphasis added).    The officer initially detained Rhodes
solely for the purpose of issuing a summons under Code
§  19.2-74(A)(2) for violation of a city ordinance prohibiting
open containers of alcohol in public.    The officer offered no
specific and articulable facts upon which to conclude that Rhodes
was armed and dangerous.    Rhodes did not have his hand in his
pocket, and he made no suspicious moves or gestures.    See
Stanley,  16 Va. App. at  877,  433 S.E.2d at  515  (holding it was
unreasonable for police officers effecting a traffic stop to
conclude a motor scooter operator was armed and dangerous because
police office saw bulge in his pocket).    The officer searched
Rhodes solely because of the officer's general policy of
searching every person who he places "in custody" and his belief
that everyone is dangerous.    However, in every non-custodial
detention encounter, "Terry requires reasonable, individualized
suspicion before a frisk for weapons can be conducted."    Maryland
v. Buie,  494 U.S.  325,  334 n.2  (1990).    The officer's generalized
policy of frisking all persons does not satisfy the restrictions
imposed by Terry.    "'Indeed, if everyone is assumed to be armed
and dangerous until the officer is satisfied that he or she is
not, then officers would be able to frisk at will  - a result not
contemplated by the Fourth Amendment.'"    Sattler,  20 Va. App. at
369,  457 S.E.2d at  400  (citation omitted).    Thus, our decisions
in Stanley, Sattler and Nesbit require a reasonable, articulable
suspicion that the person may be armed and dangerous before a
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police officer may search a person who has been detained for a
minor traffic infraction or city ordinance that is a non-jailable
offense.
Rhodes was charged with having an open container of beer in
a public place.    The officer saw Rhodes with the container, saw
the bottle on the porch, and heard Rhodes say that he placed the
open bottle of beer on the porch.    The officer was not entitled
to search Rhodes.    Under these circumstances, he could only issue
Rhodes a summons based on the non-custodial detention.    Because
the search incident to this non-custodial detention was
unreasonable under the Fourth Amendment, I would reverse the
trial judge's refusal to suppress the item the officer seized
when he searched Rhodes.
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