Courtney H. Shelton v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
COURTNEY H. SHELTON
v. Record No. 2183-94-4 MEMORANDUM OPINION * BY
JUDGE CHARLES H. DUFF
COMMONWEALTH OF VIRGINIA DECEMBER 5, 1995
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald M. Haddock, Judge
Frank Salvato for appellant.
Monica S. McElyea, Assistant Attorney General,
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Courtney H. Shelton appeals his convictions for possession
of cocaine with intent to distribute and for possession of a
firearm while possessing with intent to distribute cocaine.
Appellant contends (1) that the trial court erred in denying his
motion to suppress, which was based on the warrantless entry by
the police allegedly to secure the premises; and (2) that the
trial court erred by admitting his statements made in response to
police questioning before Miranda warnings were given. For the
reasons that follow, we affirm appellant's convictions.
I.
Appellant contends that the trial court erred in failing to
suppress evidence seized in violation of his Fourth Amendment
rights. On appeal, the burden is on the appellant to show,
considering the evidence in the light most favorable to the
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
Commonwealth, that the denial of the motion to suppress
constituted reversible error. See Fore v. Commonwealth, 220 Va.
1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017(1980). Viewed in this fashion, the evidence supports the
finding that the police were justified in their decision to enter
appellant's apartment to secure the premises.
In determining whether a warrantless entry to secure the
premises is reasonable, the need to preserve evidence and protect
police officers must be balanced against the person's privacy
interest in his home. Crosby v. Commonwealth, 6 Va. App. 193,
200, 367 S.E.2d 730, 735 (1988). The balance is weighed in favor
of entry when
(1) police officers have probable cause to
believe evidence is on the premises; (2)
delaying entry would create a substantial
risk that evidence will be lost or destroyed
or the critical nature of the circumstances
prevents the use of any warrant procedure;
and (3) the police must not be responsible
for creating their own exigencies.
Id. at 201, 367 S.E.2d at 735. The circumstances must be
examined as they reasonably appeared to the law enforcement
officers at the scene when the decision to enter was made. Verez
v. Commonwealth, 230 Va. 405, 411, 337 S.E.2d 749, 753 (1985),
cert. denied, 479 U.S. 813 (1986). Once an entry has been
justified, police may conduct a limited security check in areas
where people could hide. Crosby, 6 Va. App. at 202, 367 S.E.2d
at 735.
We find that the police officers were justified in entering
-2-
the apartment to secure the premises. Shortly after an
undercover officer contacted Eric Dillard, he produced a large
amount of crack cocaine for sale. Dillard was arrested, and gave
the police an address of 38 South Ingram Street. Because Dillard
produced a large amount of drugs on short notice and had no
paraphernalia on him when arrested, the police suspected that he
had additional drugs, the tools of the trade, and an accomplice
elsewhere. Based on this information, the police obtained a
search warrant for Dillard's presumed address. However, Dillard
did not live at this address.
As soon as the police learned Dillard's correct address,
they sought a second warrant for that location. While waiting
for the second warrant, the police were concerned that evidence
could be destroyed. The sale had occurred in close proximity to
Dillard's correct address, he had been arrested in public, and he
would have access to a telephone after booking to contact
accomplices. Dillard's family, knowing his apartment would soon
be searched, could make phone calls to any accomplices. Before
entering Dillard's apartment, the police heard music from inside
the apartment, suggesting that someone was inside. Fearing that
someone was inside the apartment, and knowing that Dillard had
lied about his address, the police were concerned that Dillard
sent them to the wrong location to allow time for an accomplice
to destroy the evidence. The police reasonably believed, under
the totality of the circumstances, that delaying entry would
-3-
create a substantial risk that evidence would be lost or
destroyed. No evidence suggests that the police created their
own exigencies.
Once inside Dillard's apartment, the officers did not exceed
the scope of the limited security check. While looking in places
where a person could hide, the officers discovered that appellant
was on the premises. Although the officers could have seized the
evidence in plain view, i.e., cocaine residue, a razor blade, and
jeweler's bags, they waited until the warrant was brought to the
scene before seizing these items.
We hold that the police reasonably believed that they needed
to enter and secure the premises in order to prevent the
destruction of evidence. Accordingly, we cannot say that the
trial court erred in denying the motion to suppress.
II.
Without deciding whether Shelton was in custody, we find
that "interrogation" within the meaning of Miranda v. Arizona,
384 U.S. 436 (1966), did not occur and that the trial court did
not err in admitting appellant's statements into evidence.
"Interrogation" requires the police to use words or actions that
they know are reasonably likely to elicit an incriminating
response from the person. Rhode Island v. Innis, 446 U.S. 291,
301 (1980); Jenkins v. Commonwealth, 244 Va. 445, 453, 423
S.E.2d 360, 365 (1992), cert. denied, 113 S. Ct. 1862 (1993).
Officer Mammarella was not questioning Shelton in an effort to
-4-
obtain incriminating evidence from him. She merely asked, "Who
are you?" Shelton responded by volunteering the information that
he lived there. The officer is not required to ignore
volunteered information. "Volunteered statements of any kind are
not barred by the Fifth Amendment and their admissibility is not
affected by [Miranda]." Miranda, 384 U.S. at 478; Blain v.
Commonwealth, 7 Va. App. 10, 15, 371 S.E.2d 838, 841 (1988).
For the foregoing reasons, we affirm the convictions.
Affirmed.
-5-