Emmitt Smith v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
EMMITT SMITH
MEMORANDUM OPINION * BY
v. Record No. 0042-97-1 JUDGE NELSON T. OVERTON
FEBRUARY 10, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
(J. Ashton Wray, Jr., on brief), for
appellant.
(Richard Cullen, Attorney General;
H. Elizabeth Shaffer, Assistant Attorney
General, on brief), for appellee. 1
Emmitt Smith (defendant) was tried without a jury on the
charge of possession of cocaine. He was found guilty and
sentenced to serve five years in prison. Defendant appeals his
conviction claiming that police seized evidence from his home in
derogation of the Fourth Amendment to the United States
Constitution and, therefore, the exclusionary rule operates to
suppress it. Because defendant's argument is without support in
the law, we affirm his conviction.
The parties are fully conversant with the record in the
cause, and because this memorandum opinion carries no
precedential value, we recite only those facts necessary to
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
Both appellant and appellee waived oral argument. We have
decided the case on the briefs and the record.
disposition of the appeal.
Defendant claims that the cocaine, marijuana, handgun and
ammunition seized from his home should have been suppressed at
trial. He argues that the initial entry by police to secure the
premises violated his protection against "unreasonable searches
and seizures." U.S. Const. amend. IV. This argument ignores the
holding of Segura v. United States, 468 U.S. 796 (1984),
addressing this very issue. As the Court said in Segura,
[t]he only issue here is whether drugs and
the other items not observed during the
initial entry and first discovered by the
agents . . . under an admittedly valid search
warrant, should have been suppressed.
Id. at 801. Faced with the same narrow issue, we are bound by
stare decisis to apply the same principle.
[W]here officers, having probable cause,
enter premises, and with probable cause,
arrest the occupants who have legitimate
possessory interests in its contents and take
them into custody and, for no more than the
period here involved [19 hours], secure the
premises from within to preserve the status
quo while others, in good faith, are in the
process of obtaining a warrant, they do not
violate the Fourth Amendment's proscription
against unreasonable seizures.
Id. at 798.
The case before us provides no reason to deviate from this
conclusion. The police officers had been given information from
an informant that defendant was traveling to a gas station in
order to sell drugs. Police found defendant at the gas station
carrying a bag of marijuana after having immediately thrown
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several bags of a white powdery substance out of his car window.
They then immediately went with defendant to his house in order
to secure additional evidence. After waiting less than two
hours, another officer arrived with a valid warrant. The police
officers did not seize any evidence prior to the arrival of the
search warrant. Therefore, the evidence was "'sufficiently
distinguishable to be purged of the primary taint'" of the
initial warrantless entry. Id. at 804-05 (quoting Wong Sun v.
United States, 371 U.S. 471, 488 (1963)).
The rule enunciated in Segura has been faithfully applied in
Virginia on many occasions. See, e.g., Deer v. Commonwealth, 17
Va. App. 730, 441 S.E.2d 33 (1994); Commonwealth v. Ealy, 12 Va.
App. 744, 407 S.E.2d 681 (1991); Derr v. Commonwealth, 6 Va. App.
215, 368 S.E.2d 916 (1988). We apply it now to hold that the
evidence seized from defendant's residence was admissible against
him. Accordingly, we affirm the conviction.
Affirmed.
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