Charles Burbbick, Jr., etc. v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Annunziata
Argued at Richmond, Virginia
CHARLES BURBBICK, JR., A/K/A SHADUR A. BORDEN,
S/K/A CHARLES BURBICK
MEMORANDUM OPINION * BY
v. Record No. 0601-94-2 JUDGE LARRY G. ELDER
OCTOBER 3, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
John F. Daffron, Jr., Judge
Michael HuYoung (Jane Chittom; Shuford, Rubin &
Gibney, on brief), for appellant.
Margaret Ann B. Walker, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Charles Burbbick, Jr. (appellant) appeals his convictions
for five counts of statutory burglary in violation of Code
§ 18.2-91; one count of grand larceny in violation of Code
§ 18.2-95; and possession of burglary tools in violation of Code
§ 18.2-94. Appellant contends the police lacked probable cause
to search the vehicle in which he was riding, thereby rendering
the fruits of the search inadmissible. We hold that because the
police had probable cause to conduct a warrantless automobile
search, any evidence obtained therefrom was admissible. We
therefore affirm appellant's convictions.
On July 16, 1993, the Chesterfield Police Department
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
released an internal memorandum concerning a string of local
residential burglaries. The memo requested officers to be on the
lookout for an older silver Toyota with temporary tags. On
August 12, 1993, at approximately 11 a.m., Officer William
Kcraget spotted a silver Toyota with temporary tags on Beach Road
in Chesterfield County. Three people occupied the Toyota:
appellant (a white male), the driver (a black female), and a
juvenile (not described in testimony). Officer Kcraget observed
the female drop off appellant and the juvenile in the 7400 block
of Beach Road before they walked to the residence at 7401 Beach
Road. Another officer (Officer McCann, who did not testify) told
Officer Kcraget that he observed the two persons walk to the rear
of the house and enter the back yard. A short time later,
appellant and the juvenile re-appeared at the front of the
residence and returned to the Toyota.
Officer Kcraget immediately approached the back door of the
house, where he discovered that it was "slightly ajar" and that
there were pry marks on the frame, indicating a forced entry.
Officer Kcraget noticed the house was ransacked and that two
VCR's and a pair of binoculars were strewn in the bushes near the
back door. Officer Kcraget immediately radioed Officer Richard
Davis (who was assisting in the surveillance of the Toyota),
informed him that a burglary had just occurred at 7401 Beach
Road, and asked him to stop the Toyota. Officer Davis stopped
the vehicle, searched it, arrested appellant, and, without a
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warrant, confiscated assorted burglary tools from the vehicle,
including a vise and a screwdriver. Officer Davis did not
recover any possessions from the residence at 7401 Beach Road.
Appellant was given his Miranda warnings, executed a rights-
waiver form, and confessed to nine other burglaries, although he
did not confess to the Beach Road burglary.
Prior to his bench trial, appellant moved to suppress the
evidence seized by the police, including his confession, but the
trial court denied the motion. The trial court convicted
appellant on all counts.
Assuming without deciding that appellant had standing to
contest the search, we hold the trial court did not err in
finding probable cause existed for the police to conduct a
warrantless search of the Toyota. Under the automobile exception
to the fourth amendment's warrant requirement, an automobile may
undergo a warrantless search if there is probable cause to
believe that the vehicle contains evidence of a crime. United
States v. Ross, 456 U.S. 798, 806-08 (1982); see also Vass v.
Commonwealth, 214 Va. 740, 743-44, 204 S.E.2d 280, 283 (1974).
We will not disturb a trial court's refusal to suppress evidence
seized in a warrantless search of an automobile unless the
holding is plainly wrong or unsupported by the evidence, when
viewed in the light most favorable to the Commonwealth.
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,
48 (1991).
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A warrantless arrest and search are constitutionally
permissible if "at the moment of arrest [or search], the
arresting officer [has] knowledge of sufficient facts and
circumstances" to justify a reasonable belief that an offense has
been committed. Bryson v. Commonwealth, 211 Va. 85, 86, 175
S.E.2d 248, 250 (1970). Explained another way, probable cause is
more than "mere suspicion," DePriest v. Commonwealth, 4 Va. App.
577, 585, 359 S.E.2d 540, 544 (1987), cert. denied, 488 U.S. 985(1988), and it "deals with probabilities, . . . factual and
practical considerations in every day life on which reasonable
and prudent [persons], not legal technicians, act." Derr v.
Commonwealth, 242 Va. 413, 421, 410 S.E.2d 662, 666 (1991).
Based on the facts described above, we believe that a
"reasonable and prudent" person would have had cause to believe
that a burglary had just been committed, see Derr, 242 Va. at
421, 410 S.E.2d at 666, and that the fruits of the crime may have
been in the Toyota.
Accordingly, we affirm the convictions.
Affirmed.
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Benton, J., dissenting.
To justify the search of the vehicle, the evidence must
establish that the police had probable cause to believe the
vehicle contained evidence of a crime. United States v. Ross,
456 U.S. 798, 809 (1982). No evidence in this record supports
the trial judge's conclusion that probable cause existed.
"Probable cause . . . must be based on more than speculation,
suspicion, or surmise that [evidence of] a crime might be . . .
[found]." Alexander v. Commonwealth, 19 Va. App. 671, 674, 454
S.E.2d 39, 41 (1995).
The evidence proved that Burbbick and a juvenile left an
automobile and walked into the yard of a residence. The unfenced
yard was big, wooded, and traversed by a creek. Although the
evidence proved that a police officer was observing the rear of
the residence, that officer did not testify. No evidence proved
that Burbbick entered the residence, attempted to enter the
residence, or did any activity other than enter the rear yard.
No evidence proved the length of time Burbbick was in the yard.
When Burbbick and the juvenile left the yard, they re-
entered the vehicle. After the vehicle drove away, a police
officer who could not see the rear of the residence went to the
residence, saw a rear door slightly ajar, and saw some household
items in bushes five feet from the door. The officer's
observations and the evidence that led to the initial
surveillance of the vehicle provided the police with a basis to
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have a reasonable articulable suspicion that a crime may have
occurred sometime that day. Even if those facts would justify a
Terry stop, the evidence proved on this record did not provide
probable cause to believe Burbbick had broken into the residence.
Indeed, the officer who observed the opened door and the
items in the bushes testified that he did not know whether the
items were there before Burbbick entered the yard. The officer
who was in a position to see the rear of the residence when
Burbbick was in the yard did not testify that Burbbick put the
items in the bushes. Significantly, no evidence proved that
Burbbick was at the rear of the residence for a sufficient amount
of time to break and enter the residence and to remove items to
the bushes.
Furthermore, no testimony established that Burbbick or the
juvenile had in their hands or possessed any item, tool, or
equipment when they left the vehicle or re-entered the vehicle.
Any suspicion that the officer may have had that the vehicle
contained evidence of a crime is not manifested by any facts
proved on this record.
For these reasons, I would reverse the trial judge's failure
to suppress the evidence.
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