Neal Nathaniel Carroll v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata, and Overton
Argued at Richmond, Virginia
NEAL NATHANIEL CARROLL
MEMORANDUM OPINION * BY
v. Record No. 2353-95-2 JUDGE NELSON T. OVERTON
FEBRUARY 25, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Robert N. Johnson (Anne M. Johnson; Derek E.
Leake; Robert N. and Anne M. Johnson, Inc.,
on briefs), for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Neal Nathaniel Carroll appeals his conviction for possession
of cocaine with the intent to distribute in violation of Code
§ 18.2-248. He contends that the trial court erroneously
admitted (1) the cocaine found in his jacket and (2) statements
he made during the search. We affirm the decision of the lower
court as to the first issue, but reverse as to the second and
remand for a new trial.
On January 31, 1995, the Drug and Firearm Strike Force of
the Richmond Police Department executed a search warrant for
cocaine and related items at the residence of Cecil James. The
defendant, Carroll, did not reside there but was present on that
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
day. After a forced entry into the rear door, the police secured
the apartment, which included handcuffing Carroll on the floor.
A leather jacket was on a chair near Carroll. One police
officer asked Carroll if it was his; Carroll answered that it was
not. The officer searched the pockets, finding store receipts
and a bag of cocaine. The officer asked Carroll if the jacket
contained anything with Carroll's name on it. Carroll replied
affirmatively, and the officer read Carroll his Miranda rights.
He again asked Carroll if the jacket was his, and this time
Carroll admitted that it was.
At trial, the prosecutor argued in his closing statement:
But, if you have sixty-six grams of cocaine
in that coat, your first reaction when
someone says, hey, is this your coat? No,
that is not my coat. Especially if it is an
officer, a police officer. First thing, no,
that is not my coat. That is why when the
officer said, "Is it your coat?" He said,
"No, it is not my coat." Why would he say
that? There is no reason except for the fact
that he knew there was sixty-six grams of
cocaine in the pocket, stuffed in the pocket.
That is the only reason.
Carroll contends on appeal, as he did before and during the
trial, that the physical evidence of the cocaine should have been
suppressed, as should the statements he made before he was read
his Miranda rights.
The cocaine itself was admissible. The police were
searching the apartment for narcotics pursuant to a valid search
warrant. They would have searched the jacket because it was
clearly a place where narcotics may have been hidden. Even if
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the unlawful questioning of Carroll in fact led to the search of
the jacket, evidence tainted by an unlawful seizure is admissible
when the Commonwealth shows "'(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.'" Walls v. Commonwealth, 2 Va. App. 639, 656, 347
S.E.2d 175, 185 (1986) (quoting United Stated v. Cherry, 759 F.2d
1196, 1204 (5th Cir. 1985)). Consequently, the evidence shows
that the cocaine would have been discovered by other lawful
means, and is not the fruit of Carroll's statements.
The statements, however, were made by Carroll in response to
police questions before he was read his rights and are not
admissible. Carroll was in custody at the time that he was
questioned. He was surrounded by several armed police officers
who had forced their way into the apartment; he was ordered to
lie down; he was handcuffed; and then he was questioned. A
police officer testified that he would not have let Carroll leave
if he had asked and admitted that Carroll was suspected of drug
activity. See Wass v. Commonwealth, 5 Va. App. 27, 359 S.E.2d
836 (1987). "A reasonable man confronted with [an] armed display
of manpower at his house, even though earlier told he was not
under arrest and was free to leave, could only conclude that he
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was in fact not free to leave and was expected to cooperate. The
atmosphere was exactly the type of police dominated environment
described in Miranda." Id. at 34, 359 S.E.2d at 840.
Carroll then was directly questioned by a police officer,
which constituted an interrogation or its functional equivalent.
The police officer's questions were obviously designed to elicit
incriminating responses from Carroll and were therefore the
functional equivalent of an interrogation. See Blaine v.
Commonwealth, 7 Va. App. 10, 15, 371 S.E.2d 838, 841 (1988).
The admission of Carroll's statements at trial was not
harmless error. The Commonwealth stressed that Carroll had
initially denied ownership of the jacket and then admitted it
when the officer found receipts bearing his name. The
Commonwealth suggested to the jury that, because he denied
ownership, Carroll must have known that the cocaine was in the
jacket.
The Commonwealth was required to prove that Carroll
intentionally and consciously possessed the cocaine. Without the
denial of ownership, the Commonwealth could not have implied that
Carroll consciously possessed it with knowledge of its nature and
character. Admission of Carroll's statements was therefore
reversible error.
We affirm the denial of the suppression of the cocaine. We
reverse the denial of the suppression of Carroll's statements
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made before the Miranda rights and remand the cause for a new
trial not inconsistent with our ruling.
Affirmed in part,
reversed in part,
and remanded.
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Annunziata, J., concurring.
I concur in the opinion of the majority. I write separately
to address the Commonwealth's contention that Carroll's detention
was not the functional equivalent of an arrest because it was
authorized as incident to the execution of a lawful search
warrant, under the holding in Michigan v. Summers, 452 U.S. 705
(1981). Under the facts of this case, there is no dispute that
Carroll's detention was lawful under the Fourth Amendment: "for
Fourth Amendment purposes . . . a warrant to search for
contraband founded on probable cause implicitly carries with it
the limited authority to detain the occupants of the premises
while a proper search is conducted." Id. at 705. Such
detentions are typically analogous to limited, Terry-type
intrusions, id. at 699-703, "[a]lthough special circumstances, or
possibly a prolonged detention, might lead to a different
conclusion in an unusual case." Id. at 705 n.21.
In the comparatively nonthreatening, noncoercive environment
of a typical Terry-type detention, a reasonable person would not
believe that his or her freedom of action had been restrained in
any significant way so as to invoke Miranda. Berkemer v.
McCarty, 468 U.S. 420, 436-37 (1984); United States v. Burns, 37
F.3d 276, 281 (7th Cir. 1994). Contrary to the Commonwealth's
contention, however, it does not necessarily follow that because
the type of detention at issue is analogous to a Terry-type stop,
the detainee is not entitled to Miranda's protections. See,
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e.g., Cherry v. Commonwealth, 14 Va. App. 135, 139, 415 S.E.2d
242, 244 (1992). Instead, the issue is whether "the objective
circumstances would lead a reasonable person to believe he was
under arrest, thereby subjecting him or her to pressure impairing
the free exercise of the privilege against self-incrimination."
Id. at 140, 415 S.E.2d at 245. The reviewing court must decide
"``whether there is a formal arrest or restraint on freedom of
movement' of the degree associated with a formal arrest." Id. at
140-41, 415 S.E.2d at 245 (citations omitted).
The circumstances of the present case were far more
intrusive and threatening than those characterizing a typical
Terry-type stop. That both the detention and the questioning of
appellant were of short duration and were out of public view, is
not sufficient to dispel the "custodial" environment in which the
interrogation was conducted in this case. See Wass, 5 Va. App.
at 34, 359 S.E.2d at 840.
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