Gerald Chrisopher Carter v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Richmond, Virginia
GERALD CHRISTOPHER CARTER
MEMORANDUM OPINION * BY
v. Record No. 0418-02-2 JUDGE SAM W. COLEMAN III
MAY 20, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge Designate
Gregory W. Franklin, Assistant Public
Defender, for appellant.
John H. McLees, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Gerald C. Carter appeals his bench trial conviction for
possession of cocaine. He argues that the trial court erred by
denying his motion to suppress the evidence obtained during a
warrantless search of his residence. He contends (1) the initial
search exceeded the scope of the consent to enter the residence,
(2) the police improperly seized evidence during a protective
sweep of the home, and (3) the consent by his mother to search the
residence was not voluntarily given. For the reasons that follow,
we agree that the police improperly seized the contraband and we
reverse Carter's conviction.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Background
"In reviewing a trial court's denial of a motion to
suppress, 'the burden is upon the defendant to show that the
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) (citation omitted). "[W]e 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." Hayes v. Commonwealth, 29 Va. App. 647, 652, 514 S.E.2d
357, 359 (1999) (citation omitted). "In performing such
analysis, 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." McGee, 25 Va. App. at 198, 487 S.E.2d at 261(quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)).
On June 7, 2001, Detective Fred Bates and two other police
officers responded to a complaint of illegal drug activity at
Carter's address. Gerald Carter shared the house with his
mother and girlfriend. Bates and Detective Graves knocked on
the front door, and Detective Godfrey went to the back of the
house. Gerald Carter and his mother, Antonia Carter, answered
the door. The detectives identified themselves, displayed their
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badges, and asked if they could enter to discuss the drug
complaint. Antonia Carter invited the officers inside.
Immediately upon entering the residence, Bates observed
Gerald Carter throw an object into a bedroom located directly
adjacent to the front entryway. Bates testified he could not
identify the object but he heard it land in the bedroom and
stated it sounded "metallic." Concerned that the object Carter
threw might have been a gun, Bates stepped into the bedroom to
investigate.
Bates saw three people in the bedroom. He quickly scanned
the room for weapons and turned to leave. He then saw a large
spoon lying face-up on a table with a brown residue clearly
visible on the spoon. Bates returned to the living room and
asked Antonia Carter for permission to search the residence.
She began crying, and Carter attempted to persuade her to refuse
Bates' request to search the house. Antonia Carter asked Bates
what options she had, and Bates explained if she consented to
the search the police would leave her home quickly. At that
point, Bates returned to the bedroom, retrieved the spoon,
showed it to Antonia Carter, and explained that it appeared to
be drug paraphernalia. He also stated he would attempt to
obtain a search warrant if she did not give the officers
permission to search. Bates informed Antonia Carter that the
officers may have to handcuff some of the people in the
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residence while they awaited the search warrant. Antonia Carter
eventually consented to the search. The detectives discovered
various items of drug paraphernalia inside the residence. The
spoon contained cocaine residue. Gerald Carter was arrested and
charged with possessing cocaine.
Analysis
Protective Search
Gerald Carter argues the officers unlawfully entered the
bedroom after his mother invited them into the house. He
concedes the officers were lawfully in the residence.
[P]olice officers may, whenever they possess
an articulable and objectively reasonable
belief that a suspect is presently or
potentially dangerous, conduct a protective
search of the area within the suspect's
immediate control.
Servis v. Commonwealth, 6 Va. App. 507, 519, 371 S.E.2d 156, 162
(1988). We have held that a protective sweep is permissible
even where the suspect was not under arrest, as long as the
officers' entry into the residence was consensual. See Conway
v. Commonwealth, 12 Va. App. 711, 720, 407 S.E.2d 310, 314
(1991) (en banc). As in Conway, the officers in this case were
in the residence by virtue of the homeowner's consent.
Bates testified that immediately upon the officers entering
the residence, Carter threw a metallic object into an adjacent
room. Bates heard the object land and investigated based upon a
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concern for officer safety. When Bates entered the room he was
surprised to find three people there, and he quickly glanced
around the room looking for a firearm. Bates provided a
reasonable, articulable basis for conducting a cursory
protective sweep of the area accessible to and in close
proximity to Gerald Carter.
Plain View
For the plain view "exception to the warrant requirement to
apply, the record must show (1) a prior justification for the
intrusion . . . and [(2)] immediate knowledge by the official
that the evidence he is observing is probably contraband."
Jones v. Commonwealth, 29 Va. App. 363, 369, 512 S.E.2d 165, 168
(1999). As explained above, the police were lawfully in the
residence pursuant to Antonia Carter's permission. Bates
performed a permissible protective sweep of the area and was
lawfully in the bedroom when he saw the spoon.
However, at trial, Bates testified only that he observed
the spoon on a table and that "[a]s soon as [he] saw that spoon,
[he] could see some type of what [he] believed to be brown
residue on the spoon." He left the room and spoke with Carter's
mother in an attempt to persuade her to consent to a full search
of the house. He then returned to the room and asked one of the
occupants to give him the spoon. He turned it over and saw burn
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marks on the back "where [he] could tell it was probably used
for drug activity . . . ."
Bates never testified that he immediately recognized the
spoon as drug paraphernalia when he saw it during the protective
sweep. When he entered the room looking for a weapon, Bates saw
a spoon with some type of residue on it but he at no time
indicated that what he observed led him to believe that the
spoon contained drug residue rather than some other substance.
Instead, only upon further investigation did Bates indicate that
he determined the spoon was likely used for the preparation of
illegal drugs and contained drug residue. When Bates first
observed the spoon during the protective sweep of the bedroom,
he saw only that it contained a brown residue. When he seized
the spoon and examined it more closely he observed burn marks
which gave him reason to believe that the residue was illicit
drugs.
"[T]he standard for invoking the plain view doctrine is
probable cause. Thus, to lawfully seize an item under the plain
view exception to the warrant requirement, the officer must have
probable cause to believe that the item in question is evidence
of a crime or contraband." Conway, 12 Va. App. at 718, 407
S.E.2d at 314. The evidence established that Bates saw nothing
incriminating about the residue-coated spoon until after he
seized the object and inspected it. See Arizona v. Hicks, 480
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U.S. 321, 326 (1987) (holding that stolen stereo not properly
seized under plain view doctrine because officers had to move
stereo to see serial numbers which allowed them to conclude item
was stolen). Thus, we hold as a matter of law that the plain
view exception to the warrant requirement does not apply.
Although Bates was lawfully in the bedroom for a protective
weapons sweep when he saw the spoon, he did not possess probable
cause at the time to believe it contained illegal drugs thereby
permitting him to seize it. Bates impermissibly returned to the
spoon to seize and inspect it without a warrant. Thus, the
trial court erred by denying Carter's motion to suppress the
spoon and cocaine residue and the evidence subsequently derived
from its seizure and the search that followed.
Consent
The Commonwealth does not rely upon consent to enter the
residence as the legal basis for entering the bedroom and the
search which revealed the spoon. As to Antoina Carter's
subsequent consent to search her house, she gave such consent
only after Bates illegally seized the spoon and contraband.
Because the dispositive issue here is whether the police had
lawfully seized the spoon, we need not address Carter's
contention that his mother's subsequent consent was not
voluntarily given.
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For the reasons stated above and because the evidence
suppressed is essential to the conviction, we reverse Carter's
conviction and dismiss the indictment against him.
Reversed and dismissed.
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Benton, J., concurring, in part, and in the judgment reversing
the conviction.
For the reasons I have previously stated in Conway v.
Commonwealth, 12 Va. App. 711, 723-27, 407 S.E.2d 310, 316-19
(1991) (Benton, J., concurring and dissenting), and Servis v.
Commonwealth, 6 Va. App. 507, 525-34, 371 S.E.2d 156, 165-74
(1988) (Benton, J., dissenting), I would hold that the police
may not make a "protective sweep" of a person's residence after
a warrantless entry to the residence except after, and while
making an arrest. In addition, even under those circumstances,
the record must establish specific and articulable facts
indicating that the area to be swept harbors a person posing a
danger to the arresting officers. See Maryland v. Buie, 494
U.S. 325, 335-37 (1990). Thus, I concur in the parts of the
opinion styled Background and Consent, in the holding that the
officer impermissibly inspected and seized the spoon without a
warrant, and in the judgment reversing the conviction and
dismissing the indictment. See Arizona v. Hicks, 480 U.S. 321(1987); Coolidge v. New Hampshire, 403 U.S. 443, 474-77 (1981).
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