John Bolero Latel Banks v. Commonwealth of Virginia ( 2009 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judge Frank and Senior Judge Bumgardner
Argued at Richmond, Virginia
JOHN BOLERO LATEL BANKS
MEMORANDUM OPINION * BY
v. Record No. 0905-08-1 JUDGE RUDOLPH BUMGARDNER, III
JULY 21, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge
Ronald L. Smith (Smith Law Firm, on brief), for appellant.
Gregory W. Franklin, Assistant Attorney General (William C. Mims,
Attorney General, on brief), for appellee.
After the trial court denied his motion to suppress, John Bolero Latel Banks entered a
conditional guilty plea to possessing marijuana with the intent to distribute. He contends the trial
court erred in holding the police did not need a search warrant. We conclude the inevitable
discovery exception to the exclusionary rule applies and affirm the conviction.
The evidence is not in dispute. At 2:02 a.m. on May 19, 2007, the police were dispatched
to a condominium located at 901-A Bridge Crossing in Yorktown because the security alarm was
sounding. The front door showed signs of forced entry, so Deputy Allen Sadler waited for other
officers to arrive before entering the residence.
Henrietta Morgan owned the condominium. Her daughter lived there with the defendant.
Morgan did not have a key to the condominium. The security company that maintained the
alarm system called Morgan when the alarm went off that morning. Morgan instructed the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
security company to call the police. She later contacted her daughter, who was in Japan, to get
the security code to the residence. Morgan gave the code to the police, and they finally were
able to turn off the alarm. When Morgan arrived at the residence at 3:15 a.m., the police were
inside the house.
Deputies Sadler and Ben Farr entered the home through the front door at 2:16 a.m. While
they entered, Lieutenant Barry Holloway stationed himself at the back door to prevent any
intruders from fleeing. The two deputies moved through the residence, checking closets and
other areas where a victim or intruder might hide. Immediately upon entering the home, they
noticed a strong odor of marijuana. They saw a smoking device with burnt residue that appeared
to be marijuana on the counter separating the kitchen from the dining room. In a game room,
where the odor of marijuana was particularly strong, they saw a quantity of electronic equipment
and televisions. In the cabinet in the master bathroom Deputy Farr saw a box containing small
plastic baggies and a digital scale. When the deputies reached the rear of the apartment, they
opened the back door and let Lt. Holloway inside.
Lt. Holloway testified that when he entered the apartment, he did not consider the search
for suspects or injured people to have ended. However, Deputy Farr stated that after Lt.
Holloway entered, the purpose of the search was to find marijuana. Lt. Holloway opened the
closet in the game room and found a garbage bag that contained several bags of marijuana. The
Commonwealth concedes the lieutenant’s searching the closet was improper.
After finding the marijuana in the closet, Lt. Holloway left the residence at about
3:30 a.m. to obtain a search warrant. Deputies Sadler and Farr remained inside the home, but did
not take possession of any evidence. Lt. Holloway returned with a search warrant at 5:52 a.m.
The police completed their search of the home and seized marijuana and other evidence.
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The trial court found that the observations of Deputies Sadler and Farr inside the home
provided them with reasonable suspicion of ongoing criminal activity which permitted them to
search without a warrant. It further found the police had the owner’s consent to enter the home.
The defendant maintains those rulings were incorrect, and, on appeal, the Commonwealth
concedes the reasoning was in error. However, it asserts the evidence seized from the home was
admissible under the doctrine of inevitable discovery despite any illegality in the search prior to
obtaining a warrant.
The inevitable discovery exception to the exclusionary rule permits admission of
challenged evidence if the Commonwealth proves by a preponderance that the evidence
“‘ultimately or inevitably would have been discovered by lawful means’” in spite of the illegal
conduct. Commonwealth v. Jones, 267 Va. 532, 536, 593 S.E.2d 204, 206 (2004) (quoting Nix
v. Williams, 467 U.S. 431, 444 (1984)). In order to have evidence admitted under the inevitable
discovery exception, the Commonwealth must show “(1) a reasonable probability that the
evidence in question would have been discovered by lawful means but for the police
misconduct” and “(2) that the leads making the discovery inevitable were possessed by the police
at the time of the misconduct.” Id. at 536, 593 S.E.2d at 207.
The defendant concedes that Deputies Sadler and Farr were entitled to enter the home to
search for intruders or victims who needed assistance. While conducting that stage of the search,
both Deputies Farr and Sadler detected a strong odor of marijuana when they entered the home.
As they moved about the condominium, they saw a smoking device containing apparent
marijuana residue as well as digital scales and plastic bags. They saw a suspicious quantity of
electronic equipment collected near the front door.
Those observations made as the deputies performed a lawful protective sweep of the
residence were the basis for the search warrant. The affidavit did not include any information
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obtained during the improper stage of the search. Indeed, the defendant concedes the affidavit
only contained facts occurring during the lawful protective sweep and before Lt. Holloway
entered from the back door. The search warrant was lawfully obtained, and the defendant
concedes that, if the search warrant was proper, the inevitable discovery doctrine applies.
The police possessed leads making the discovery of the evidence inevitable at the time of
the misconduct. The officers recognized the smell of marijuana throughout the home, and
observed drug paraphernalia in plain view. The trial court did not err in denying the motion to
suppress the evidence because the police would have inevitably discovered it by lawful means.
Affirmed.
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