Jonathan P. Bignelli v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Clements and Agee
Argued at Salem, Virginia
JONATHAN P. BIGNELLI
MEMORANDUM OPINION * BY
v. Record No. 0690-00-3 JUDGE JEAN HARRISON CLEMENTS
SEPTEMBER 11, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Porter R. Graves, Jr., Judge
Frank A. Mika for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Appellant Jonathan P. Bignelli was convicted in a bench trial
of manufacturing marijuana not for his own use in violation of
Code § 18.2-248.1(c), possessing with intent to distribute
methylenedioxymethamphetamine, a Schedule I controlled substance,
in violation of Code § 18.2-248(C), and possessing with intent to
distribute more than one half ounce but less than five pounds of
marijuana in violation of Code § 18.2-248.1(a)(2). On appeal, he
contends the trial court erred in denying his motion to suppress
the drugs and other evidence seized by the police in a
nonconsensual, warrantless entry and search of his home. Finding
no error, we affirm the judgment of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
proceedings as necessary to the parties' understanding of the
disposition of this appeal.
When a motion to suppress is reviewed on appeal, we examine
the records of both the suppression hearing and the trial to
determine whether the evidence was lawfully seized. DePriest v.
Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 542 (1987).
"In reviewing a trial court's denial of a motion to suppress,
'[t]he burden is upon [the defendant] to show that th[e] ruling,
when the evidence is considered most favorably to the
Commonwealth, constituted reversible error.'" McGee v.
Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en
banc) (alterations in original) (quoting Fore v. Commonwealth, 220
Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)). "'Ultimate questions
of reasonable suspicion and probable cause to make a warrantless
search' involve questions of both law and fact and are reviewed de
novo on appeal." Id. (quoting Ornelas v. United States, 517 U.S.
690, 691 (1996)). However, "we are bound by the trial court's
findings of historical fact unless 'plainly wrong' or without
evidence to support them and we give due weight to the inferences
drawn from those facts by resident judges and local law
enforcement officers." Id. at 198, 487 S.E.2d at 261 (citing
Ornelas, 517 U.S. at 699).
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Bignelli first argues that, based on the information they
obtained from the traffic stop, the officers had probable cause
sufficient to procure a search warrant before proceeding to his
house. Their failure to do so, despite having ample time to
approach a magistrate with the information they had obtained, was,
Bignelli contends, without justification.
"Probable cause exists when the facts and circumstances
within the arresting officer's knowledge and of which [the
officer] has reasonably trustworthy information are sufficient in
themselves to warrant a [person] of reasonable caution in the
belief that an offense has been or is being committed." Schaum v.
Commonwealth, 215 Va. 498, 500, 211 S.E.2d 73, 75 (1975).
"Probable cause is assessed by considering the totality of the
circumstances pertaining to the facts known to the officer at the
time." United States v. Sokolow, 490 U.S. 1, 9-10 (1989).
Here the evidence proved that on May 11, 1999, at
approximately 1:00 a.m., Trooper Rob Greer made a traffic stop on
Route 659 in Rockingham County of a vehicle travelling 48 miles
per hour in a 35 mile-per-hour zone. Before the stop, the vehicle
swerved several times across the yellow line. Four people were in
the car. The young woman who was driving smelled of alcohol and
was very lethargic. Further investigation by the police led to
the discovery of a metal box containing marijuana and a glass pipe
with marijuana residue. Two of the passengers were arrested for
possession of marijuana.
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One of the passengers told Trooper Kevin Richards, who
together with Sergeant Baylor and Deputy Morris came to assist
Greer, that he got the marijuana in the metal box at a party in
Grottoes. He gave Trooper Greer the address of 93 Gray Street.
Another passenger told Greer that there were two kegs of beer at
the party and that every person at the party was "probably not"
twenty-one years old. Both passengers were under twenty-one years
of age and admitted they had drunk alcohol at the party. The
officers did not previously know the persons stopped that night.
After the arrests, Trooper Greer called an assistant
Commonwealth's attorney for advice. The assistant Commonwealth's
attorney told Greer that the information Greer had received might
be unreliable or stale. Based on that advice, the four officers
and the assistant Commonwealth's attorney went to the Gray Street
address they were given to further investigate the reliability of
the information of illegal narcotic and alcohol use. They arrived
at 2:46 a.m.
Assuming, without deciding, that the information obtained by
Greer during the traffic stop constituted probable cause
sufficient for the issuance of a search warrant, we hold that it
was reasonable nevertheless for the officers to go to 93 Gray
Street, Bignelli's home, to verify by personal observation the
reliability and adequacy of the information they had received.
See Fore, 220 Va. at 1011, 265 S.E.2d at 732 (holding that, even
though information the officer had obtained through hearsay was
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arguably sufficient to obtain a search warrant, officer acted
reasonably and responsibly in verifying the adequacy of that
information by personal investigation). Furthermore, the
officers' failure to obtain a search warrant at the earliest
practicable moment did not, without more, negate the legality of
the subsequent search. See Verez v. Commonwealth, 230 Va. 405,
410, 337 S.E.2d 749, 752 (1985); Patty v. Commonwealth, 218 Va.
150, 155-57, 235 S.E.2d 437, 440-41 (1977).
Bignelli next argues that, upon arriving at his house, the
officers improperly went around to the side yard of the house,
where there was no sidewalk and which was almost completely
blocked from the street by a shed and bushes, rather than walking
up the sidewalk to the front door. The officers, Bignelli
contends, intentionally trespassed on the curtilage of his
property in order to obtain probable cause and, in so doing,
created the exigent circumstances that precipitated their entry
into his home without a warrant. Thus, Bignelli concludes, the
Commonwealth should be precluded from relying on the exigent
circumstances the officers created by their illegal trespass.
The Fourth Amendment protects against unreasonable searches
and seizures. "A warrantless entry into a dwelling is
presumptively unreasonable." Servis v. Commonwealth, 6 Va. App.
507, 514, 371 S.E.2d 156, 159 (1988). The Fourth Amendment
protections that apply to the home also apply to its "curtilage."
Jefferson v. Commonwealth, 27 Va. App. 1, 15, 497 S.E.2d 474, 481
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(1998) (citing Oliver v. United States, 466 U.S. 170, 180 (1984)).
"Curtilage" includes one's yard. Wellford v. Commonwealth, 227
Va. 297, 302, 315 S.E.2d 235, 238 (1984). "The protection
afforded the curtilage is essentially a protection of families and
personal privacy in an area intimately linked to the home, both
physically and psychologically, where privacy expectations are
most heightened." California v. Ciraolo, 476 U.S. 207, 213
(1986).
However, this does not end our Fourth Amendment inquiry.
That the area is within the curtilage
does not itself bar all police observation.
The Fourth Amendment protection of the home
has never been extended to require law
enforcement officers to shield their eyes
when passing by a home on public
thoroughfares. Nor does the mere fact that
an individual has taken measures to restrict
some views of his activities preclude an
officer's observations from a public vantage
point where he has a right to be and which
renders the activities clearly visible.
"What a person knowingly exposes to the
public, even in his own home . . ., is not a
subject of Fourth Amendment protection."
Id. (citations omitted) (quoting Katz v. United States, 389 U.S.
347, 351 (1967)).
Here, the evidence established that, when Trooper Greer
arrived at 93 Gray Street, he could see the front and side doors
of Bignelli's house from Gray Street. No fences or other
obstructions blocked his view of the yard. He saw five to ten
people in the front yard on the north side of the house walking
around with "bottles of alcoholic beverages" and "clear plastic
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cups of a liquid beverage." Having confirmed the information from
the traffic stop that a party was indeed in progress at this
address and that alcohol was in fact being served, Greer walked
into the yard seeking to locate someone who lived at the house or
the person in charge of the party. He asked one of the people in
the yard if he knew who lived there, but the person said he did
not. The front porch was "totally dark," but Greer could see
light coming from the side door. He, therefore, walked through
the yard up to the side door.
We find, as did the trial court, that Bignelli had no
expectation of privacy in his yard, which was knowingly exposed to
the public. It was reasonable, therefore, for Trooper Greer to
enter the yard to further investigate his suspicions of illegal
activity based on the information he had received from the traffic
stop and his observations from the public street of the activity
in Bignelli's yard. Unable to locate the property's residents or
the party's host in the yard, it was also reasonable for Greer to
go to the residence's apparent point of ingress and egress-the
side door where the light was on-to locate the residents or host.
See Alvarez v. Montgomery County, 147 F.3d 354, 358-59 (4th Cir.
1998) (holding that entry by police officers investigating a
complaint of an underage drinking party into private backyard to
look for homeowner was reasonable because officers had a
legitimate reason unrelated to a search of the premises to enter
the yard and a sign indicated the party was in backyard). We
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conclude, therefore, that the officers did not illegally trespass
on the curtilage of Bignelli's property.
"Exigent circumstances . . . may justify as reasonable a
warrantless entry into a dwelling [and] a search of the interior
. . . ." Verez, 230 Va. at 410, 337 S.E.2d at 752. "Exigent
circumstances justifying a warrantless entry and search exist only
where the police have probable cause to obtain a search warrant
but, due to the nature of the situation, are precluded from doing
so." Servis, 6 Va. App. at 514-15, 371 S.E.2d at 159. Relevant
exigent circumstances that might justify a warrantless entry
include "the officers' reasonable belief that contraband is about
to be removed or destroyed," "information that the possessors of
the contraband are aware that the police may be on their trail,"
"whether there is, at the time of entry, a clear showing of
probable cause," and "whether the officers have strong reason to
believe the suspects are actually present in the premises."
Verez, 230 Va. at 410-11, 337 S.E.2d at 753.
We have held that in determining whether
exigent circumstances were sufficient to
overcome the presumption of unreasonableness
and justify a warrantless entry, the court
must examine the circumstances as they
reasonably appeared to the law enforcement
officers on the scene. "The officers are not
required to possess either the gift of
prophecy or the infallible wisdom that comes
only with hindsight. They must be judged by
their reaction to circumstances as they
reasonably appeared to trained law
enforcement officers to exist when the
decision to enter was made."
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Id. at 411, 337 S.E.2d at 753 (quoting Keeter & Bray v.
Commonwealth, 222 Va. 134, 141, 278 S.E.2d 841, 846 (1981)).
Applying these principles, we conclude that the evidence
before us amply supports the trial court's determination that the
Commonwealth met its burden of proving exigent circumstances
sufficient to justify the police's warrantless entry and search of
Bignelli's house. When Trooper Greer reached the lighted side
door, it was open. Looking inside, Greer could see ten or twelve
people in the kitchen, sitting at a table on which there were
half-full bottles of beer, plastic cups, and cigarettes. Greer
also saw a metal keg, which he recognized as a beer keg, in plain
view in the same room. He asked the group to find the person who
lived there or was in control of the house. Less than a minute
later, Bignelli ran downstairs and met Greer at the door. After
determining that Bignelli rented the house, Greer explained to him
that he had received information that there was illegal
consumption of alcohol and possible drug use taking place at the
party. When Greer asked Bignelli if he knew whether everyone in
attendance was at least twenty-one years old, Bignelli said he did
not know but he hoped so. During the conversation with Bignelli,
Greer "detected a strong odor of what [he] believed to be
marijuana smoke" coming out of the house. "It was," according to
Greer, "a very thick cloud of smoke." When Greer asked Bignelli
about the smoke, Bignelli denied it was marijuana. During the
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conversation Bignelli was "extremely nervous" and stood in the
doorway with his arms outstretched across the open door.
The trooper then asked Bignelli to come out into the yard.
When Bignelli did so, Greer asked him about the marijuana odor
again, and Bignelli again denied the odor was marijuana. Trooper
Greer asked permission to search the residence. When Bignelli
refused, Greer told Bignelli he could apply for a search warrant.
Bignelli ran back to the door and once again stood in the doorway
with his arms outstretched across the door. Greer, accompanied by
Trooper Richards, went back to the door. When Richards reached
the porch outside the door, he also smelled a very strong odor of
marijuana. Again, Greer asked for consent to search the residence
and stated he could apply for a search warrant. Bignelli again
refused permission.
At that point, Greer saw a woman seated at the table in the
kitchen jump up and run out of the room. Greer heard footsteps on
the stairs, heard a door slam, and then heard a toilet flush
repeatedly. Richards also saw people running upstairs and through
the house and heard the toilet flush. Fearing that evidence of
illegal drugs was being destroyed and deciding that prompt action
on their part was necessary to prevent the further destruction of
evidence, the officers entered the house. Pushing Bignelli and a
woman out of the doorway, they ran upstairs to the bathroom, where
Greer found a woman flushing green plant material down the toilet.
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Given the information they received during the traffic stop
and what they observed, smelled, and heard at Bignelli's house, we
find that the officers reasonably perceived exigent circumstances
warranting their immediate entry into Bignelli's house to search
for evidence before it could be destroyed. Accordingly, their
immediate entry and search was, we conclude, reasonable and
justified.
Bignelli testified in his own defense and called six
witnesses who were present at the party that night. They denied
much of the officers' testimony, including that marijuana could be
smelled in the kitchen or outside the house, that people were
running through the house and up the stairs, that the toilet was
being flushed, that the officers could even hear the toilet being
flushed from their location just outside the side door, and that
someone was in the bathroom when Greer went in.
The trier of fact, however, is not required to accept a
party's evidence in its entirety, but is free to believe or
disbelieve in part or in whole the testimony of any witness.
Rollston v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823,
830 (1991). Thus, the trial court was not required to accept
Bignelli's version of what occurred. "In its role of judging
witness credibility, the fact finder is entitled to disbelieve the
self-serving testimony of the accused and to conclude that the
accused is lying to conceal his guilt." Marable v. Commonwealth,
27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998).
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Finally, Bignelli contends that, even though he expressly
gave his consent to the officers to search the house after they
had entered the residence and gone upstairs, his consent was not
valid because it was coerced by the officers' show of force in
entering and searching his home. We disagree.
A person may voluntarily consent to a warrantless search of
his person, property, or premises. Bumper v. North Carolina, 391
U.S. 543, 548 (1968). "The test of a valid consent search is
whether it was 'freely and voluntarily given.'" Commonwealth v.
Rice, 28 Va. App. 374, 378, 504 S.E.2d 877, 879 (1998) (quoting
Bumper, 391 U.S. at 548). "When a defendant challenges the
validity of a consent to search, the burden of proof is on the
Commonwealth to prove that it was freely and voluntarily given."
Reynolds v. Commonwealth, 9 Va. App. 430, 439, 388 S.E.2d 659, 665
(1990). Whether a particular consent to search was in fact
voluntary or was the product of coercion is a question of fact "to
be determined from the totality of the circumstances."
Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).
Here, Trooper Greer twice asked Bignelli for permission to
search before entering the home. Bignelli, telling Greer that he
"could not enter on a smell," twice denied Greer permission to
search. Only after the officers had entered the house and were
upstairs looking in the bathroom and bedroom, did Bignelli run up
the stairs and tell Greer that "none of this was necessary, that
he was willing to cooperate with" the officers. Greer verified
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Bignelli's offer and asked Bignelli for consent to search.
Bignelli consented, saying, "You're going to find it anyway. I
might as well just speed up the process so I can go to bed and get
some sleep."
Having refused consent to search his home twice before
consenting, Bignelli clearly knew he had a right to refuse
consent. There is no evidence in the record that any of the
officers displayed a weapon or used language or a tone of voice
that suggested compliance with their request to search was
mandatory. Bignelli was not restrained by the police. The
evidence sufficiently supports the trial court's finding that the
Commonwealth met its burden of proving that Bignelli's consent was
freely and voluntarily given. Moreover, having found that the
warrantless entry of Bignelli's house was lawfully made,
Bignelli's claim that his consent was coerced by the officers'
warrantless entry must fail. See Reynolds, 9 Va. App. at 440, 388
S.E.2d at 665.
In summary, we find that the warrantless entry was lawful and
that the consent to search was properly obtained. The trial court
did not, therefore, err in refusing to suppress the drugs and
other evidence seized.
Accordingly, we affirm the trial court's decision to overrule
Bignelli's motion to suppress the drugs and other evidence seized
and affirm Bignelli's convictions.
Affirmed.
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