Robert Bill Krebs, Jr. v. Commonwealth of Virginia ( 2011 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Salem, Virginia
ROBERT BILL KREBS, JR.
MEMORANDUM OPINION * BY
v. Record No. 2400-10-3 JUDGE ROBERT J. HUMPHREYS
DECEMBER 13, 2011
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Carter B. Garrett (Garrett and Garrett, P.C., on briefs), for appellant.
Susan M. Harris, Assistant Attorney General (Kenneth T. Cuccinelli,
II, Attorney General, on briefs), for appellee.
Robert Bill Krebs, Jr., (“Krebs”) appeals his convictions in the Circuit Court of the City
of Lynchburg (“trial court”) of one felony count of possession of a Schedule I or II controlled
substance, namely oxycodone, and one misdemeanor count of possession of marijuana. Krebs
alleges on appeal that the trial court erred when it denied his motion to suppress and exclude all
physical evidence and statements. 1 For the reasons that follow, we affirm the trial court in
denying the motion to suppress.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Krebs also alleges on appeal that the trial court erred (1) when it found as a matter of
law that the odor of marijuana emanating from his residence established probable cause to search
the residence, (2) when it ruled that the officer’s warrantless entry into Krebs’ residence did not
violate his Fourth Amendment rights, (3) when it found his statement (that the pills were
Percocet and that he had a prescription) to be an “incriminating statement,” (4) when it found
this statement provided the officer with probable cause to conduct an invasive search of his
person, and (5) when it ruled that the invasive search was constitutionally permitted. However, a
full analysis of the trial court’s denial of Krebs’ motion to suppress encompasses these
assignments of error, and, thus, they are not directly addressed individually.
Krebs argues on appeal that the trial court erred in denying his motion to suppress. In
support of his argument, Krebs assigns error to the trial court’s finding that the odor of marijuana
emanating from his residence established probable cause to search the residence. “On appeal of
the denial of a motion to suppress, we view the evidence in the light most favorable to the
Commonwealth.” McCracken v. Commonwealth, 39 Va. App. 254, 258, 572 S.E.2d 493, 495
(2002) (citing Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991)).
“The defendant has the burden to show that, considering the evidence in the light most favorable
to the Commonwealth, the circuit court’s denial of his suppression motion was reversible error.”
Commonwealth v. Robertson, 275 Va. 559, 564, 659 S.E.2d 321, 324 (2008).
While we “are bound by the trial court’s findings of historical fact unless ‘plainly wrong’
or without evidence to support them,” McGee v. Commonwealth, 25 Va. App. 193, 198, 487
S.E.2d 259, 261 (1997) (en banc), we review de novo “the trial court’s application of defined
legal standards such as probable cause and reasonable suspicion to the particular facts of the
case.” Cherry v. Commonwealth, 44 Va. App. 347, 356, 605 S.E.2d 297, 301 (2004) (citing
Ornelas v. United States, 517 U.S. 690, 699 (1996)). Also, “[w]e evaluate the existence of
probable cause under a standard of objective reasonableness.” Id. at 357, 605 S.E.2d at 302.
That is, police officers “‘must be judged by their reaction to circumstances as they reasonably
appeared to trained law enforcement officers to exist’” at the time of the alleged Fourth
Amendment violation. Id. (quoting Keeter v. Commonwealth, 222 Va. 134, 141, 278 S.E.2d
841, 846 (1981)).
It is well settled that “absent probable cause and exigent circumstances, warrantless
arrests in the home are prohibited by the Fourth Amendment.” Welsh v. Wisconsin, 466 U.S.
740, 741 (1984) (citing Payton v. New York, 445 U.S. 573 (1980)). “Probable cause exists when
the facts and circumstances within the officer’s knowledge, and of which he has reasonably
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trustworthy information, alone are sufficient to warrant a person of reasonable caution to believe
that an offense has been or is being committed.” Taylor v. Commonwealth, 222 Va. 816, 820,
284 S.E.2d 833, 836 (1981). Further, “[u]nder the Fourth Amendment, ‘probable cause may be
supported by the detection of distinctive odors . . . .’” Bunch v. Commonwealth, 51 Va. App.
491, 496, 658 S.E.2d 724, 726 (2008) (quoting United States v. Haynie, 637 F.2d 227, 234 (4th
Cir. 1980)). Thus, we have held that “the detection of the odor of burning marijuana emanating
from the open door of a residence, by a credible law enforcement officer who is familiar with its
smell, provides that officer with probable cause to believe contraband is present inside the
residence.” Cherry, 44 Va. App. at 357-58, 605 S.E.2d at 302.
In this case, Officer Stump testified that he detected a distinct odor of marijuana coming
from Reed’s person as he left Krebs’ residence. He also detected a strong odor of marijuana
when Krebs answered the door to his residence. These observations, alone, provided Officer
Stump with probable cause to believe that an offense was being committed within Krebs’
residence. Thus, the trial court did not err in finding that probable cause existed.
However, the existence of probable cause does not automatically grant a right of
immediate entry to police officers. Officer Stump entered Krebs’ residence without first
obtaining a warrant based on the probable cause. The Commonwealth contends that exigent
circumstances justified Officer Stump’s entry into Krebs’ residence or, alternatively, that the
evidence obtained as a result of the warrantless entry should nevertheless be admissible under the
independent source doctrine. Assuming, without deciding, that the smell of marijuana emanating
from the house standing alone was insufficient to supply exigent circumstances for an immediate
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entry, nevertheless, the evidence discovered as a result of the unwarranted entry is admissible
under the independent source doctrine and under the inevitable discovery doctrine. 2
It has been well established for more than 60 years that
evidence is not to be excluded if the connection between the illegal
police conduct and the discovery and seizure of the evidence is “so
attenuated as to dissipate the taint.” It is not to be excluded, for
example, if police had an “independent source” for discovery of
the evidence.
Segura v. United States, 468 U.S. 796, 805 (1984) (quoting Nardone v. United States, 308 U.S.
338, 341 (1939)).
In Segura, officers, armed with probable cause to make an arrest, impermissibly entered
Segura’s apartment without a warrant and absent exigent circumstances justifying the entry. Id.
at 804. The Supreme Court agreed that items discovered in plain view during the initial entry
were suppressible. However, the Supreme Court held that the evidence seized the following day
as the result of a valid search warrant was valid; the Supreme Court reasoned that
[n]one of the information on which the warrant was secured was
derived from or related in any way to the initial entry into
petitioners’ apartment; the information came from sources wholly
unconnected with the entry and was known to the agents well
before the initial entry. No information obtained during the initial
entry or occupation of the apartment was needed or used by the
agents to secure the warrant. It is therefore beyond dispute that the
information possessed by the agents before they entered the
apartment constituted an independent source for the discovery and
seizure of the evidence now challenged.
Id. at 814.
2
The trial court denied the motion to suppress by finding that Officer Stump’s detection
of the smell of marijuana supported a warrantless entry into Krebs’ residence. However, “[i]n
this case, as in all others, we seek to decide cases, ‘on the best and narrowest ground available’
from the record.” Kirby v. Commonwealth, 50 Va. App. 691, 698 n.2, 653 S.E.2d 600, 603 n.2
(2007) (quoting Miles v. Commonwealth, 274 Va. 1, 2, 645 S.E.2d 924, 925 (2007) (Kinser, J.,
concurring) (citations omitted)).
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As discussed above, Officer Stump already had sufficient probable cause to secure a
search warrant for the premises before he ever entered the house. Although he entered Krebs’
residence without a warrant, Officer Stump did not see or observe any of the items eventually
recovered in the kitchen as a result of that initial intrusion. Instead, the items eventually
recovered in the kitchen were seized during the execution of the search warrant that was
obtained. Thus, “[i]t is therefore beyond dispute that the information possessed by the agents
before they entered the apartment constituted an independent source for the discovery and
seizure of the evidence now challenged.” Id. As such, the trial court did not err in refusing to
suppress the items recovered from the kitchen.
However, the oxycodone pills were recovered when Officer Stump decided to perform a
pat down on Krebs during his initial intrusion into the residence. Since these pills were
discovered and seized prior to the subsequent warranted search, the independent source doctrine
does not apply to them. Even so, the inevitable discovery doctrine provides a valid basis to
affirm the trial court’s denial of Krebs’ motion to suppress these pills.
The United States Supreme Court first adopted the inevitable discovery exception to the
exclusionary rule in Nix v. Williams, 467 U.S. 431 (1984). In Nix, the Court explained that,
[i]t is clear that the cases implementing the exclusionary rule
“begin with the premise that the challenged evidence is in some
sense the product of illegal governmental activity.” Of course, this
does not end the inquiry. If the prosecution can establish by a
preponderance of the evidence that the information ultimately or
inevitably would have been discovered by lawful means . . . then
the deterrence rationale has so little basis that the evidence should
be received. Anything less would reject logic, experience, and
common sense.
Id. at 444 (quoting United States v. Crews, 445 U.S. 463, 471 (1980)).
The inevitable discovery rule provides an exception to the
requirement that a search be supported by a warrant. The rule
derives from the principle that fruits of an unlawful search are
inadmissible at trial, if the challenged evidence “has been come at
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by exploitation of that illegality.” Conversely, if the evidence is
obtained “by means sufficiently distinguishable to be purged of the
primary taint,” excluding the evidence does not serve the deterrent
purpose of the rule. The inevitable discovery rule is “an off-shoot
of the independent source doctrine.”
Copeland v. Commonwealth, 42 Va. App. 424, 436-37, 592 S.E.2d 391, 397 (2004) (quoting
Wong Sun v. United States, 371 U.S. 471, 488 (1963); Wilkins v. Commonwealth, 37 Va. App.
465, 475, 559 S.E.2d 395, 399 (2002)).
In Virginia,
[t]o come within the 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, (2) that the leads making the discovery inevitable
were possessed by the police at the time of the misconduct, and
(3) that the police also prior to the misconduct were actively
pursuing the alternative line of investigation.”
Id. at 437, 592 S.E.2d at 397 (quoting Walls v. Commonwealth, 2 Va. App. 639, 656, 347 S.E.2d
175, 185 (1986)).
In this case, it is clear from the record that the oxycodone pills in Krebs’ pocket would
have inevitably been discovered through a search incident to his arrest following the execution of
the search warrant when contraband and other evidence of criminal activity were found within
his home. The first prong of the inevitable discovery test is met, because there was sufficient
probable cause to support a warrant to search Krebs’ residence. That search yielded “a plastic
bag with green plant material,” a black digital scale, and a marijuana grinder. After finding this
contraband, it is reasonable to conclude that Officer Stump would have arrested Krebs and
performed a standard search incident to arrest. “A warrantless search and seizure may be upheld,
however, if it is conducted incident to a lawful arrest.” Id. at 433, 592 S.E.2d at 395. During
this search, Officer Stump would have found the oxycodone pills. The second prong is also met
because the only evidence supplying probable cause necessary to making the discovery, namely
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the odor of marijuana, existed prior to the alleged unlawful entry. Finally, the third prong of the
test is met because the police were already actively pursuing a search based upon probable cause.
The first thing Officer Stump did was to explain that they were not under arrest, but that they
were being detained, because he had detected an odor of marijuana. See Segura, 468 U.S. at 810
(“securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of
evidence while a search warrant is being sought is not itself an unreasonable seizure of either the
dwelling or its contents”). He then read the group their Miranda rights and stated he was going
to get a search warrant for the house. Since all three prongs of the inevitable discovery doctrine
test are met, the evidence should not have been suppressed under the exclusionary rule.
In conclusion, the trial court did not err in denying Krebs’ motion to suppress, because
the officer had probable cause based on his detection of the odor of marijuana, and, thus, an
independent source existed for the search of Krebs’ residence, and the evidence seized from his
person would have been inevitably found during a search incident to arrest. Therefore, we affirm
the judgment of the trial court.
Affirmed.
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