Keith Lamonte Hill, s/k/a Keith Lamont Hill v. Commonwealth of Virginia ( 2013 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judge Kelsey and Senior Judge Bumgardner
UNPUBLISHED
Argued at Richmond, Virginia
KEITH LAMONTE HILL, S/K/A
KEITH LAMONT HILL
MEMORANDUM OPINION* BY
v. Record No. 1541-12-3 JUDGE RUDOLPH BUMGARDNER, III
OCTOBER 29, 2013
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
F. Patrick Yeatts, Judge
E. Gordon Peters, Jr., for appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Keith Lamonte Hill appeals his convictions of felony destruction of property, Code
§ 18.2-137, and two counts of attempted burglary, Code §§ 18.2-26, 18.2-91. He contends the trial
court erred by denying his motion to suppress evidence obtained after the police had attached a
global positioning system device (GPS) to his car. We determine that this Court has decided the
issues the defendant raises based on the same facts that arose from a single search. Accordingly, we
affirm these convictions.
The defendant committed a series of breakings and enterings in Botetourt, Campbell, and
Franklin Counties and the City of Lynchburg. Each of the crimes had a similar modus operandi.
Entry into businesses was obtained by breaching exterior walls, but nothing was taken except
large quantities of cigarettes.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
By coordinated efforts among the various jurisdictions, the investigation identified the
defendant and focused on him. The sheriff’s office in Botetourt County was able to compare
surveillance videos from businesses there with the defendant’s photograph on his operator’s
license. They matched, and the DMV data provided the defendant’s current address in Bedford.
At that address, the deputies located the defendant’s car which had been linked to the attempted
break-ins in Botetourt County.
Based on the identification they developed during the investigation, Botetourt County
deputies decided to place a GPS device on the defendant’s car. They consulted with the
Commonwealth’s Attorney, who advised that a search warrant was not necessary. At the time,
the controlling precedent was Foltz v. Commonwealth, 57 Va. App. 68, 698 S.E.2d 281 (2010),
which specifically held placement of a GPS device on a vehicle was neither a search nor a
seizure.1 The deputies placed a device on the defendant’s vehicle on September 16, 2010 where
it remained until the defendant was arrested on September 27, 2010.
In the meantime, Campbell County authorities were investigating similar offenses. In
mid-September they compared surveillance videos from break-ins in Campbell County with
those from Botetourt County and concluded the defendant was shown in both sets of recordings.
Law enforcement authorities from six jurisdictions scheduled a meeting for September
27, 2010 to discuss the related cases. However, on the day of the meeting, a break-in occurred in
the early morning at a Food Lion store in Campbell County and cigarettes were stolen. The GPS
device on the defendant’s car showed that it had been in the Food Lion parking lot early that
same morning.
1
The panel decision was rendered September 7, 2010. The mandate of that opinion was
stayed September 23, 2010, and the case was affirmed on different grounds April 5, 2011. See
Foltz v. Commonwealth, 58 Va. App. 107, 114, 706 S.E.2d 914, 918 (2011) (en banc), aff’d on
other grounds, 284 Va. 467, 732 S.E.2d 4 (2012).
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The police had begun the process of securing a search warrant when an officer going to
the meeting about the cases drove past the defendant’s house in Bedford. He saw the
defendant’s car, which was parked on the street in front of the residence, and he observed items
piled up in the backseat but covered over. Shortly afterward, the defendant came out of the
house, got in the car, and drove off. He was stopped and arrested. After being advised of his
rights, the defendant admitted committing the offenses in the various jurisdictions including
those in Lynchburg.
At a suppression hearing for the Lynchburg charges, the trial court ruled that placement
of the GPS device on the defendant’s car was a search and was unreasonable. The definitive
decision of United States v. Jones, 132 S. Ct. 945 (2012), had been issued by then. However, the
trial court did not suppress the evidence because it ruled the “good faith” exception applied. The
defendant appeals his convictions arguing the trial court erred in admitting evidence obtained
after his arrest.
The defendant has previously appealed his convictions in Franklin County of two counts
of grand larceny. In that appeal, the defendant raised nearly identical issues arising from the
placement of the GPS device. Hill v. Commonwealth, No. 1828-11-3, 2012 Va. App. LEXIS 318
(Va. Ct. App. Oct. 9, 2012), held that the Franklin County Circuit Court did not err by denying
the motion to suppress because the evidence was obtained from independent sources and
provided probable cause to arrest the defendant and search his vehicle. The decision by the
previous panel of this Court is compelling. Where the applicable facts are the same and the
issues raised and addressed in the decision are the same, indeed where even the defendant is the
same, the judgment should be the same.
Furthermore, in this case the trial court specifically acknowledged that although the
warrantless placement of the GPS device on the defendant’s car was an unreasonable search the
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exclusionary rule did not apply. The trial court found the police reasonably relied upon the
binding appellate precedent in effect at the time of the search and ruled it did “not find any
deterrent effect would be accomplished by excluding the evidence in this case.”
We agree. “Evidence obtained during a search conducted in reasonable reliance on
binding precedent is not subject to the exclusionary rule.” Davis v. United States, 131 S. Ct.
2419, 2429 (2011); see also United States v. Davis, 690 F.3d 226, 251-57 (4th Cir. 2012).
Accordingly, we affirm.
Affirmed.
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