Commonwealth v. Douglas Edward Marek ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Humphreys
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 2123-02-4 JUDGE ROBERT J. HUMPHREYS
FEBRUARY 5, 2003
DOUGLAS EDWARD MAREK
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Rossie D. Alston, Jr., Judge
Steven A. Witmer, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellant.
C. Shawn Allen (William A. Boge, on brief),
for appellee.
The Commonwealth of Virginia appeals a decision of the trial
court granting Douglas Edward Marek's motion to suppress evidence
pertaining to his indictment for unlawful possession of oxycodone
(marketed under the trade name of Oxycontin), in violation of Code
§ 18.2-250, possession of cocaine, in violation of Code
§ 18.2-250, and simultaneous possession of a firearm and a
controlled substance, in violation of Code § 18.2-308.4. The
Commonwealth contends the trial court erred in finding that police
violated Marek's Fourth Amendment rights by unlawfully extending
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
their search of Marek's residence beyond the scope of the search
warrant. For the reasons that follow, we reverse the decision of
the trial court.
I.
On the evening of December 7, 2001, Officer Howard Michael
Perry, of the City of Manassas Park police department, was
dispatched to the area of "Manassas Drive and Evans" to
investigate a report of "shots fired." Perry and his fellow
officers immediately reported to the area and observed two
individuals walking together on Evans Street. Officer Perry
approached the couple and asked if they had any information about
the shooting. The couple advised Perry that they had seen "a
white male in the rear and side yard of 116 Manassas Drive"
"discharging his firearm into the ground."
The officers then "converged on 116 Manassas Drive," and
"took up positions around the residence." At first, the officers
attempted to have dispatch contact the residents by telephone "to
have them come outside." However, no one inside the home answered
the telephone. Upon continuing to observe the house, the officers
saw that a light was on in one of the upstairs bedrooms and could
see that a television was on in one of the downstairs rooms. In
addition, one of the officers saw a fully dressed white male
looking out an upstairs window.
At that point, Officer Perry approached the front door and
knocked. A few moments later, a white male answered the door,
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wearing only his underwear. The man identified himself as
"Douglas Marek." Officer Perry advised Marek why they were there
and asked Marek if he had "discharged a firearm in his backyard."
Marek stated that he had not. Marek's girlfriend then approached
the door and Officer Perry again advised why the officers were
there. Marek's girlfriend told Officer Perry that "there were no
guns in the residence at all." At that time, Officer Perry asked
for consent to search the residence, but Marek refused, told Perry
he had nothing further to say, and closed the door.
As the officers began to leave the residence, Officer Perry
observed a shell casing on the ground near the driveway. Perry
picked it up and saw that it was a .380 caliber shell casing. 1
Perry then knocked on Marek's door once again. However, Marek
refused to answer the door. Marek told the officers, through the
closed door, that he had nothing to say and that he was going to
bed.
While other officers stayed at the residence to "preserve the
scene," Officer Perry went to the magistrate and obtained an
arrest warrant for Marek for "discharging a firearm within the
city limits." He also obtained a search warrant to search Marek's
home for "a .380 caliber handgun."
1
Officer Perry subsequently found two additional .380 shell
casings, located on the ground within two feet from where he
found the first one.
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When Officer Perry returned to the residence, he again
knocked on the front door. Marek answered, and Perry advised him
that he had a search warrant authorizing a search of the
"residence for the firearm and a warrant for [Marek's] arrest."
Marek let the officers inside, "without incident," and Officer
Perry asked him "where the gun was at." Marek told Perry that the
gun was "upstairs at the top of the stairs on the landing." Marek
then "opened the door of the staircase and pointed to a blue box
at the top of the stairs."
At that point, Officer Perry and his partner went upstairs
and found the .380 firearm where Marek had advised that it would
be. "Once [they] were at the top of the stairs and [they] had the
gun in possession," Officer Perry's partner noticed a box of .380
ammunition on a gun shelf, holding "numerous rifles." The
officers then walked to the gun shelf and seized the ammunition.
As they were standing at the shelf, Officer Perry observed "what
appeared to be a glass smoking device or pipe on an entertainment
center," as well as several bottles of Oxycontin, in a nearby
bedroom. The pipe appeared to have "burnt residue around both
ends of it." Based upon his experience as a police officer, Perry
believed the item to be a "crack pipe."
Officer Perry then retrieved the pipe and left the residence
to obtain an additional search warrant "for the narcotics
paraphernalia." After executing the second search warrant,
officers obtained approximately 30 empty bottles of Oxycontin and
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several full bottles of Oxycontin. Marek, who had already been
arrested on the charge of "discharging a firearm within the city
limits" was then charged with the remaining counts at issue on
this appeal. 2 Marek subsequently made incriminating statements to
police regarding these offenses.
Prior to trial, Marek filed a motion to suppress the evidence
against him contending, in part, that the officers "exceeded the
scope of the first search warrant," by continuing their search
after they had obtained the .380 caliber handgun, which was the
sole subject of the first search warrant. After hearing argument
on the motion, the trial court issued a written letter opinion
excluding "evidence derived from the officers' search beyond the
scope of the first warrant," finding:
There is little question that if the officer
was lawfully in a position to view the drug
paraphernalia, the items perceived would
qualify as contraband. Therefore the
inquiry must focus on whether the officer
was lawfully in position to view these
items.
* * * * * * *
2
The record on appeal reveals that, in circuit court,
Marek was subject to only three charges. Specifically, unlawful
possession of a controlled substance, simultaneous possession of
a firearm and a controlled substance and possession of cocaine.
However, the record demonstrates that, initially, Marek was also
subject to additional firearm and drug charges, including the
charge for discharging a firearm within the city limits of
Manassas. The record is silent as to the disposition of the
additional charges and because the disposition is not pertinent
to this appeal, we do not consider them further.
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. . . The officers in this instance had
discovered the subject of their search
warrant. That first warrant was limited to
a search for "a .380 caliber handgun." The
warrant did not authorize a search for
additional guns or ammunition. While the
gun rack may have been in plain view of the
officers from their lawful position at the
top of the stairs, the drug paraphernalia
that formed the basis of the second warrant
was not.
* * * * * * *
. . . To ensure that generalized
searches do not ensue, searches must be
limited to the scope specifically identified
in the warrant. Since the warrant here
specifically limited the search to "a .380
caliber handgun," the subsequent search for
ammunition was invalid. As a result, the
officer was not lawfully in the position
from which he viewed the crack pipe and
other drug paraphernalia. Those items are
derived from an illegal search and will be
excluded from evidence presented at trial
II.
On appeal, the Commonwealth contends the trial court erred in
excluding the evidence. Specifically, the Commonwealth argues
that the officers were not required to terminate the execution of
the first warrant "simply because they discovered a single .380
handgun," but were entitled, pursuant to the search warrant, to
search the home in order to find any additional .380 caliber
handguns which might have been used in the commission of the
crime. 3 In the alternative, the Commonwealth contends the
3
The validity of the warrant is not at issue in this
appeal.
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discovery and seizure of the .380 ammunition, as well as the crack
pipe, were lawful under the "plain view exception" to the search
warrant requirement. 4 While we disagree with the Commonwealth's
primary argument, we agree with the Commonwealth's alternative
argument. In reviewing a trial court's ruling on a motion to
suppress, "[t]his Court is '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.'" Davis v. Commonwealth, 37 Va. App. 421, 429, 559
S.E.2d 374, 378 (2002) (quoting Neal v. Commonwealth, 27 Va. App.
233, 237, 498 S.E.2d 422, 424 (1998)). However, we are bound to
review de novo the ultimate questions of reasonable suspicion and
probable cause. See Ornelas v. United States, 517 U.S. 690, 699
(1996). Furthermore, the burden is upon the Commonwealth here to
show, considering the evidence in a light most favorable to Marek,
and granting to him all inferences fairly deducible therefrom,
that the court's judgment constituted reversible error. Reynolds
v. Commonwealth, 9 Va. App. 430, 436, 388 S.E.2d 659, 664 (1990).
4
The Commonwealth also contends that, pursuant to Maryland
v. Buie, 494 U.S. 325, 333 (1990), the officers could have
lawfully conducted a "protective sweep" of the premises and that
the crack pipe would have been properly discovered within plain
view under such circumstances. However, the Commonwealth
conceded during oral argument that this argument was not raised
below. Accordingly, we do not address the argument as it was
not properly preserved for purposes of this appeal. See Rule
5A:18.
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We have long recognized that, pursuant to the Fourth
Amendment, "[t]he permissible scope of a search is limited by
the terms of the warrant pursuant to which it is conducted."
Kearney v. Commonwealth, 4 Va. App. 202, 204, 355 S.E.2d 897,
898 (1987) (citing Walter v. United States, 447 U.S. 649, 656
(1980) (explaining that "because 'indiscriminate searches and
seizures conducted under the authority of 'general warrants'
were the immediate evils that motivated the framing and adoption
of the Fourth Amendment,' Payton v. New York, 445 U.S. 573, 583
[(1980)], that Amendment requires that the scope of every
authorized search be particularly described")).
In the case at bar, it is undisputed that the first search
warrant obtained by Officer Perry authorized only a search for "a
.380 caliber handgun." (Emphasis added.) The warrant authorized
nothing further. We find it significant that the plain terms of
the warrant here limited the search to "a" gun. The word "a" is
typically used as a "function word before most singular nouns,"
and generally suggests a "limitation in number." Webster's Third
New International Dictionary 1 (1993). While the evidence here
may have supported a more broadly worded warrant, such as one
covering additional items related to the offense at issue (like
other .380 caliber weapons and ammunition) the issuing magistrate
and the officers obtaining the warrant elected instead, to phrase
the warrant narrowly, limiting the authorized search to only "a
.380 caliber handgun."
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Thus, once Officer Perry retrieved "a .380 caliber handgun,"
his search yielded the exact object of his investigation, and more
importantly, the exact object for which he was authorized to
search. Accordingly, the trial court properly determined that, at
that time, Officer Perry's authority to search pursuant to the
warrant ceased. Indeed, any further search based upon the first
warrant would have been unreasonable and unconstitutional as
outside the scope of the warrant, unless such additional search
was supported by a recognized exception to the warrant
requirement. See Horton v. California, 496 U.S. 128, 140 (1990)
("If the scope of the search exceeds that permitted by the terms
of a validly issued warrant or the character of the relevant
exception from the warrant requirement, the subsequent seizure is
unconstitutional without more.").
As the Commonwealth argues, the "plain view doctrine" is such
an exception to the general rule that warrantless searches and
seizures are presumptively unreasonable. Harris v. Commonwealth,
241 Va. 146, 152-53, 400 S.E.2d 191, 195 (1991).
The Supreme Court, in [Horton], stated the
predicates which must be established if the
government seeks to avail itself of the
plain view exception to the Fourth
Amendment:
"It is . . . an essential predicate to any
valid warrantless seizure of incriminating
evidence that the officer did not violate
the Fourth Amendment in arriving at the
place from which the evidence could be
plainly viewed. There are, moreover, two
additional conditions that must be satisfied
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to justify the warrantless seizure. First,
not only must the item be in plain view, its
incriminating character must also be
'immediately apparent.' Second, not only
must the officer be lawfully located in a
place from which the object can be plainly
seen, but he or she must also have a lawful
right of access to the object itself."
Id. at 2308 (citations and footnote
omitted); see also Blair v. Commonwealth,
225 Va. 483, 489, 303 S.E.2d 881, 886
(1983). Additionally, the police must have
probable cause to believe that the item in
question is evidence of a crime or is
contraband. Arizona v. Hicks, 480 U.S. 321,
326 (1987); see also Delong v. Commonwealth,
234 Va. 357, 365, 362 S.E.2d 669, 673
(1987), cert. denied, 485 U.S. 929 (1988)
(citing Hicks).
Id. "The plain view doctrine may not therefore be used only as
a pretext 'to extend a general exploratory search from one
object to another until something incriminating at last
emerges.'" Cantrell v. Commonwealth, 7 Va. App. 269, 283, 373
S.E.2d 328, 334 (1988) (quoting Coolidge [v. New Hampshire], 403
U.S. [443,] 466 [(1971))]. Indeed, "[g]eneral warrants are
proscribed by both the Fourth Amendment, Andresen v. Maryland,
427 U.S. 463, 480 (1976), and Code § 19.2-54. 5 "The purpose of
5
Code § 19.2-54 provides as follows, in relevant part:
No search warrant shall be issued until
there is filed with the officer authorized
to issue the same an affidavit of some
person reasonably describing the place,
thing, or person to be searched, the things
or persons to be searched for thereunder,
alleging briefly material facts,
constituting the probable cause for the
issuance of such warrant and alleging
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this proscription is to limit the discretion that police
officers may exercise when executing a search warrant and to
preclude them from engaging in a 'fishing expedition' or an
'exploratory rummaging in a person's belongings.'" Morke v.
Commonwealth, 14 Va. App. 496, 500, 419 S.E.2d 410, 413 (1992)
(quoting Coolidge, 403 U.S. at 467).
Thus, the issue to be determined in this context is whether
the trial court properly found that Officer Perry's discovery of
the crack pipe and prescription drugs, and subsequent seizure of
the crack pipe, fell outside the purview of the plain view
exception to the warrant requirement. We find no fault with the
trial court's determination that the crack pipe "would qualify
as contraband." Nevertheless, as the trial court recognized,
the plain view analysis requires an initial determination that
Officer Perry was in a "lawful position" to view the crack pipe
when he first observed it. Cantrell, 7 Va. App. at 282 n.1, 373
S.E.2d at 334 n.1 (noting that in Texas v. Brown, 460 U.S. 730(1983) (plurality), then Justice Rehnquist stated that "'[p]lain
substantially the offense in relation to
which such search is to be made and that the
object, thing, or person searched for
constitutes evidence of the commission of
such offense. . . . No such warrant shall
be issued on an affidavit omitting such
essentials, and no general warrant for the
search of a house, place, compartment,
vehicle or baggage shall be issued. The term
“affidavit” as used in this section, means
statements made under oath or affirmation
and preserved verbatim.
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view' is perhaps better understood . . . not as an independent
'exception' to the Warrant Clause, but simply as an extension of
whatever the prior justification for an officer's 'access to an
object' may be"). We find that he was.
In reaching this determination, we note that Marek concedes
that when Officer Perry and his partner seized the gun, they
were in a lawful position to view other items which, if they
constituted either contraband or evidence of a crime, fell
within the purview of the plain view exception. We also note
that the parties do not dispute the trial court's finding that
the box of ammunition was within the officers' plain view from
their vantage point in obtaining the gun.
Thus, the only remaining issue is a determination of
whether there existed probable cause that the box of .380
ammunition was contraband or evidence of criminal activity.
Given the totality of the information available to the officers
and the information they supplied in the affidavit for the
search warrant, we hold that probable cause existed as a matter
of law that the box of ammunition was evidence of the crime
being investigated– firing a gun within the city limits – and
therefore the box of ammunition was properly discovered and
seized pursuant to the plain view exception to the warrant
requirement. Indeed, we have recognized that:
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[P]robable cause is a flexible, common sense
standard. It merely requires that the facts
available to the officer would "warrant a
man of reasonable caution in the belief,"
that certain items may be contraband or
stolen property or useful as evidence of a
crime; it does not demand any showing that
such a belief be correct or more likely true
than false. A "practical, non-technical"
probability that incriminating evidence is
involved is all that is required . . . .
The process does not deal with hard
certainties, but with probabilities. Long
before the law of probabilities was
articulated as such, practical people
formulated certain common-sense conclusions
about human behavior; jurors as factfinders
are permitted to do the same — and so are
law enforcement officers. Finally, the
evidence thus collected must be seen and
weighed not in terms of library analysis by
scholars, but as understood by those versed
in the field of law enforcement.
Ruffin v. Commonwealth, 13 Va. App. 206, 209-10, 409 S.E.2d 177,
179 (1991) (quoting Brown, 460 U.S. at 742). Here, the
ammunition box was "not a facially innocent vessel" as it
clearly purported to contain evidence which was directly related
to the specific crime the officers were investigating. Id. at
211, 409 S.E.2d at 180. Accordingly, the circumstances
surrounding the discovery of the box, the nature of the search
warrant, and the items found at the scene indicating that a .380
caliber handgun had been fired, gave Officer Perry probable
cause to believe that the box was evidence of a crime, and
authorized its seizure.
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Because we find that Officer Perry and his partner lawfully
discovered and seized the box of ammunition, as stated above, we
thus find that Officer Perry was in a lawful position from that
location to view the crack pipe and the bottles of prescription
drugs. Therefore, he likewise lawfully seized the crack pipe,
upon which the second search warrant was based.
For these reasons, we reverse the decision of the trial court
suppressing evidence obtained beyond the scope of the first search
warrant, as we find the items were properly seized pursuant to the
plain view exception to the Fourth Amendment search warrant
requirement.
Reversed.
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