Crosby v. Commonwealth , 6 Va. App. 193 ( 1988 )

Barrow, J.,

dissenting.

Elimination of the warrant requirement in this case suggests that it should be eliminated in any case where there is probable cause to believe that contraband is being kept in a dwelling. This is contrary to the long settled rule that police may not search or seize contents of a home without a warrant. Justification for this departure cannot be found in Segura v. United States, 468 U.S. 796 (1984). Furthermore, the facts of this case do not support the test the majority derives from that opinion.

The critical facts of this case are undisputed. Two police detectives, one of whom had received information that the defendant had Preludin in his apartment, stopped and detained the defendant on a public street. One of the detectives took a key to the defendant’s apartment from the defendant and went to his apartment. It was a one room apartment with only one door. The detective saw no one entering or leaving the apartment and did not have “any distinct recollection of hearing anything.” He unlocked the door with the key he had received from the defendant, opened the door and entered the apartment. He saw a sawed off shotgun lying on the bed and took possession of it. He then left the apartment and went to obtain a search warrant.

This seizure defies the rule that police may neither search nor seize the contents of a home without a warrant. See Segura v. United States, 468 U.S. 796, 824, n.16 (Stevens J., dissenting); Agnello v. United States, 269 U.S. 20, 33-34 (1925). Unless there are exigent circumstances, a warrantless search is illegal. Segura, 468 U.S. at 810; Vale v. Louisiana, 399 U.S. 30, 33-34 (1970).

To avoid application of this fundamental principle, the majority creates a new rule to justify this search. In doing so it relies on one part of an opinion by Chief Justice Burger in which only one other justice joined. Segura v. United States, 468 U.S. at 797.

The majority’s reliance on Segura is misplaced because the Supreme Court excluded from its consideration the issue raised in this case. Segura involved two seizures, and only one of them was addressed by the Chief Justice’s opinion. The Court did not consider the seizure which most closely parallels the seizure in this case.

In Segura, government agents entered an occupied apartment without a warrant, arrested the occupants and secured the apartment until a search warrant was obtained. They first seized contraband seen by the agents when they initially entered the apartment, and later seized contraband not seen during the initial entry but discovered after the search warrant was obtained. The district court held the initial warrantless entry unjustified by exigent circumstances and the first seizure, therefore, illegal. The Court of Appeals affirmed the district court, and the Supreme Court expressly excluded that issue from its consideration, saying “we have no reason to question the courts’ holding that that search was illegal.” Id. at 798. Furthermore, in Segura the initial entry was not a basis for obtaining the warrant; in this case the initial entry was part of the basis for obtaining the warrant. In Segura, the property seized during the second search was not suppressed as “fruit” of the illegal entry “because the warrant and the information on which it was based were unrelated to the entry and therefore constituted an independent source for the evidence under Silvathorn Lumber Co. v. United States.” Segura, 468 U.S. at 799. The warrant in this case, however, was obtained, at least in part, based upon information acquired during the illegal entry. The affidavit upon which the search warrant was based described the initial entry and the presence of the sawed off shot gun.

Finally, even if there were authority to support the test proposed by the majority, the facts in this case do not meet the proposed test. One of the three tenets of the majority’s test is that a delayed entry “would create a substantial risk that evidence will be lost or destroyed or the critical nature of the circumstances prevents the use of any warrant procedure.” The facts in this case do not support that conclusion.

Circumstances did not prevent the use of a warrant procedure. In fact, the detective left to obtain the warrant immediately after he seized the shotgun, and obtained it within minutes after he left the defendant’s apartment.

There was also no substantial risk that the evidence would be lost or destroyed. The defendant was being detained by the police and could not destroy the evidence or request someone to do it on his behalf. The one room apartment had only one door and, although someone had been in the apartment ten or more hours previously, there were no indications that anyone was in the apartment at the time the police entered.

Crosby’s failure to respond when asked if anyone was in his apartment did not indicate a substantial risk that evidence was about to be destroyed. Crosby was not evasive, as suggested by the majority. He simply did not answer the question: a constitutionally protected, and perhaps prudent, course of action by someone confronted with police detention and accusation of illegal drug possession.

The shotgun was seized as a result of a warrantless entry in the defendant’s home. Neither exigent nor other circumstances justified the warrantless entry. For these reasons I would reverse the conviction and remand the proceeding for a new trial.