Anthony Earl Mason v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia
ANTHONY EARL MASON
v. Record No. 2452-94-1 MEMORANDUM OPINION * BY
JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA NOVEMBER 7, 1995
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
John M. Folkes, Judge
Michael T. Hurd (Dusewicz and Soberick, P.C.,
on brief), for appellant.
John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General; John H. McLees, Jr., Assistant
Attorney General, on brief), for appellee.
Anthony Earl Mason was convicted in a bench trial of
possession of cocaine with intent to distribute and possession of
a firearm while in possession of cocaine. On appeal, he contends
(1) that the evidence obtained from a second search of the car
should have been suppressed because the police were required to
obtain a search warrant, and (2) that his statement to the police
about the cocaine transactions should have been suppressed
because their questioning violated his right to remain silent.
We find no error and affirm the judgments of the trial court.
On August 20, 1993, the Gloucester County Sheriff's
Department arrested Mason for possession of a concealed weapon.
After searching the vehicle in which he was a passenger, the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
police discovered a film canister containing cocaine.
The police were acting upon information provided to them by
a reliable confidential informant, who had told them on three
separate occasions that two black males in a gold car, license
NNI-173, were staying at the Gloucester Inn Hotel and were
selling cocaine.
On August 20, while the police had the Gloucester Inn Hotel
under surveillance, a gold car with license number NNI-173 pulled
into the lot. Two black men were in the car. The police stopped
the car and asked the occupants to step out. The driver complied
and told the police that his partner had a gun. Mason, the
passenger, resisted getting out of the car. When he finally
emerged, the police handcuffed and searched him. Upon finding no
gun on his person, the officers searched the car and found a gun
between the front seats.
While the driver and Mason were still at the scene, the
police searched the car and found a film canister containing
cocaine under the front passenger seat, where Mason had been
sitting. Mason moved to suppress the cocaine, arguing that
because it was not within the officers' plain view, a search
warrant was necessary.
On three separate occasions, Officer Jones spoke with Mason.
First, Jones read Mason his Miranda rights at the time of his
arrest. Mason said nothing at that time. Second, after Mason
had been processed into jail and the felony warrants on which he
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was arrested had been served on him, Jones asked Mason whether he
would cooperate with the Sheriff's Department in exchange for
assistance with his charges. Mason replied, "I don't want to
talk." The next day as Mason was being released on bond, Jones
again advised him of his Miranda rights and had him sign and
initial the standard form from which Jones had read the rights.
Jones intended to ask Mason about the gun found in the car
because the police had new information that it was stolen. Mason
told Jones that he had bought the gun from a man in Surry County
for $100. Mason then went on to tell Jones about the cocaine
sales. Mason's statement was reduced to writing and admitted
into evidence at trial over his objection.
Mason first contends that the warrantless search of the car
was not valid as a search incident to an arrest. He argues that
because he and the driver had been arrested and denied access to
the car, the car was no longer mobile and no exigent
circumstances existed. We disagree.
The search of the car was incident to a lawful arrest. See
Pack v. Commonwealth, 6 Va. App. 434, 368 S.E.2d 921 (1988).
Moreover, based on the information he had received from a
credible informant and was able to verify by his own observation,
Jones had probable cause to search the car for narcotics. See
McKoy v. Commonwealth, 212 Va. 224, 183 S.E.2d 153 (1971). The
continuing mobility of the vehicle, notwithstanding the arrest of
Mason and the driver, justified its search without a warrant.
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McCary v. Commonwealth, 228 Va. 219, 228, 321 S.E.2d 637, 641-42
(1984). Under either theory the warrantless search was valid and
the cocaine was admissible into evidence.
Relying on Harris v. Commonwealth, 241 Va. 146, 400 S.E.2d
191 (1991), Mason argues that even if the search of the car was
lawful, the officers were not authorized, absent a search
warrant, to open the film canister. He argues that the mere
presence of the canister did not give probable cause that it
contained contraband. Mason's reliance on Harris is misplaced.
Harris did not involve the general search of a vehicle. Rather,
it addressed the right of police to open a film canister found
during a frisk of Harris for weapons. The right to search an
automobile includes the right to search closed containers found
therein. See United States v. Ross, 456 U.S. 798 (1982).
Mason next contends that his statement to Jones regarding
the cocaine transactions should have been suppressed because he
had previously invoked his right to remain silent. He argues
that once a suspect has refused to talk, he may not be
requestioned. See United States v. Kinsman, 540 F.2d 1017 (9th
Cir. 1970). We disagree with Mason's contention that he invoked
his right to remain silent.
The first time Jones sought to interrogate Mason was at the
scene of the arrest in the motel parking lot. Jones read Mason
his Miranda rights. Mason made no reply. While Mason's silence
expressed a disinclination to speak, it was neither an
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affirmative assertion of his right to remain silent nor an
assertion of his right to counsel. See Eaton v. Commonwealth,
240 Va. 236, 251, 397 S.E.2d 385, 394 (1990), cert. denied, 112
S. Ct. 88 (1991). Jones immediately discontinued the
interrogation. The second inquiry posed by Jones to Mason was at
the jail. Pursuant to departmental policy, Jones asked Mason
whether he would be willing to assist the Sheriff's Department in
other investigations in exchange for some concession by the
Commonwealth's Attorney as to the charges pending against him.
Mason's reply, "I don't want to talk," was not an assertion of
his right to remain silent, but was a refusal to give assistance.
The statement that was admitted into evidence was given by Mason
on a third encounter with Jones, at the jail just prior to
Mason's release on bail. Jones had acquired additional
information concerning the gun found in Mason's possession and he
sought to question Mason about the gun. After Jones had again
advised Mason of his Miranda rights, Mason voluntarily gave a
statement describing his acquisition of the gun and then, without
further prompting, went on to give the statement at issue
concerning his involvement in the subject drug charges.
Admissibility of a statement given by an accused upon
reinterrogation following an earlier refusal to talk, is governed
by five factors.
First, whether defendant "was carefully advised" before
the initial interrogation "that he was under no
obligation to answer any questions and could remain
silent if he wished."
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Second, whether there was an immediate cessation of the
initial interrogation, and no attempt to persuade
defendant to reconsider his position.
Third, whether the police resumed questioning "only
after the passage of a significant period of time."
Fourth, whether Miranda warnings preceded the second
question.
Fifth, whether the second interrogation was limited to
a crime that had not been the subject of the earlier
interrogation.
Weeks v. Commonwealth, 248 Va. 460, 471, 450 S.E.2d 379, 386
(1994) (citations omitted). See also Michigan v. Mosley, 423
U.S. 96, 104-06 (1975). The interrogation that produced the
statement plainly satisfied the foregoing criteria. At the
initial interrogation attempt, Mason was properly and fully
advised of his Miranda rights. Upon his silence, the effort at
interrogation was ended immediately. A significant passage of
time preceded any further effort at interrogation. At the
renewed interrogation, Mason was again given full and proper
advice of his Miranda rights. The second interrogation addressed
a different subject, Mason's acquisition of the handgun. Mason
went forward, spontaneously and of his own free will, to give the
subject statement concerning his involvement in the drug charges.
The judgments of the trial court are affirmed.
Affirmed.
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