Crystal Estelle Baker v. Commonwealth of Virginia ( 2020 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Huff and Athey
UNPUBLISHED
Argued at Norfolk, Virginia
CRYSTAL ESTELLE BAKER
MEMORANDUM OPINION* BY
v. Record No. 1417-18-1 JUDGE CLIFFORD L. ATHEY, JR.
FEBRUARY 25, 2020
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Rufus A. Banks, Jr., Judge1
Daniel Hogan, Assistant Public Defender, for appellant.
Liam A. Curry, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Crystal Estelle Baker (“Baker”) appeals the decision of the Circuit Court for the City of
Chesapeake (“trial court”) denying her motion to suppress evidence recovered during a
warrantless search of a vehicle Baker was driving on February 11, 2018 in the City of
Chesapeake. Baker argues that the trial court erred in finding (1) the search was a valid search
incident to Baker’s arrest, (2) the search was valid based on the consent of the owner of the
vehicle, and (3) the Altoids tin would have been inevitably discovered.
The trial court also found that law enforcement lacked probable cause to search the
Altoids tin located in the vehicle. On brief, the Commonwealth now challenges the trial court’s
probable cause ruling and urges this Court to affirm the trial court’s decision to deny Baker’s
suppression motion pursuant to the “right-result different-reason” doctrine.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Judge Banks presided over the trial of this case and signed the final order. Judge
Randall D. Smith presided over the hearing on appellant’s motion to suppress.
I. BACKGROUND2
At approximately 2:30 a.m. on February 11, 2018, Chesapeake Police Officer Hudgens
(“Hudgens”) initiated a traffic stop based upon a defective headlight. As Hudgens followed the
car, he saw the driver “moving around a lot in the vehicle towards the [driver’s side] door and
the center console of the car.”
Following the stop, Hudgens identified Baker as the driver and Amanda Benton
(“Benton”), the vehicle’s owner, as a front seat passenger. Hudgens did not see either occupant
make any movements as he approached the car. Hudgens subsequently learned that Baker’s
driver’s license had been suspended. Both Baker and Benton explained to Hudgens that Baker
was driving that night because Benton was intoxicated. Hudgens performed a records check,
which revealed that Baker was the subject of an outstanding warrant for violating her probation.
As a result, Hudgens placed Baker under arrest and instructed her to exit the vehicle. Hudgens
next placed Baker into handcuffs, with her hands positioned behind her back. Benton remained
in the front passenger seat of her vehicle during Baker’s arrest. Hudgens then escorted Baker to
a location between the rear bumper of Benton’s vehicle and the front bumper of his police
cruiser. Hudgens then asked Baker whether she wanted him to retrieve her jacket from the
driver’s seat due to the cold weather, to which Baker replied, “yes.”
Hudgens returned to Benton’s vehicle and opened the driver’s side door to retrieve
Baker’s jacket. Hudgens later testified that “while opening the door,” he “heard like a metallic
rattling inside the door.” He saw a cigarette carton laying on Baker’s jacket and searched it
“[b]ecause she was going to jail . . . and couldn’t take them to jail.” After he “mess[ed] with the
cigarettes, [Hudgens also] observed a small Altoids [tin] inside the driver’s side door.”
2
Pursuant to familiar appellate principles, the evidence is summarized in the light most
favorable to the Commonwealth, the prevailing party at trial. Gerald v. Commonwealth, 295 Va.
469, 472-73 (2018).
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The location of the Altoids tin in the vehicle was consistent with the area Hudgens saw
Baker was moving toward prior to the traffic stop. Hudgens then removed the Altoids tin from
inside the driver’s door, opened it, and used his flashlight to view its contents. Hudgens
explained during trial that he searched the Altoids tin because he had seen them used as kits for
drugs before. The Altoids tin contained a “white powdery residue” and three razor blades, which
Hudgens testified, based on his experience, was serving as a heroin kit.
Although Baker was initially charged with one count of felony possession of heroin in
violation of Code § 18.2-250, the charge was later amended to possession of fentanyl and
cocaine, both in violation of Code § 18.2-250. Baker moved to suppress any evidence, including
the Altoids tin and its contents, which was obtained after Hudgens retrieved Baker’s jacket from
the vehicle.
During the suppression hearing, Hudgens testified that while performing the records
check, he learned that Baker was wanted for a probation violation, but was unsure whether the
violation related to a previous drug charge or a previous larceny charge. Hudgens also testified
that he was aware of Baker’s criminal history, which included her prior drug charges. Hudgens
further testified that he only arrested Baker for violating her probation on the previous larceny
conviction. Hudgens admitted that Benton witnessed the search of the Altoids tin prior to
consenting to the search of her vehicle. Finally, Hudgens acknowledged that no inventory search
of the car ever occurred.
The trial court ruled that Hudgens lacked probable cause to open and inspect the contents
of the Altoids tin but nevertheless denied the motion to suppress:
First, I don’t think the officer had probable cause. If I remember
the case, this was the Altoids container that was in the pocket for
the driver’s door.
....
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And I know the officer—if I remember, there was, like, a metallic
sound as opposed to what would be the sound of what the officer
was familiar with [sic] Altoids. But, I mean, it could have been
loose change. It could have been anything.
The trial court ruled that evidence recovered from the Altoids tin was admissible under two
exceptions to the Fourth Amendment warrant requirement.
In explaining its ruling, the trial court reasoned that the search incident to arrest exception
applied because Baker had been a “recent occupant” of the driver’s seat next to the driver’s side
door, which was where Hudgens had found the Altoids tin. The trial court also held that the
inevitable discovery exception applied because Benton, the registered owner of the car,
consented to Hudgens’s search of the Altoids tin, which meant that the eventual discovery of the
illegal drugs in the Altoids tin was inevitable. The trial court implied in its ruling that its
findings on consent and inevitable discovery may have been different had consent been procured
from Baker, the driver, as opposed to Benton, the owner and passenger:
[T]he passenger gave consent, and I know the consent cases that
were argued were . . . you know, can you really give consent if a
person is not of free will. But those cases involved whether the
defendant could give consent afterwards, where this was the
passenger who owned the automobile gave consent. So by giving
consent, there would have been inevitable discovery.
Baker subsequently entered conditional guilty pleas to both felony possession charges,
acknowledging that she was on probation at the time of the traffic stop. The trial court sentenced
Baker to ten (10) years of imprisonment with all but six (6) months of the sentence suspended.
Baker alleges on appeal that the trial court erred in denying her motion to suppress
because Hudgens lacked probable cause to search the vehicle and neither the search incident to
unlawful arrest exception nor the inevitable discovery exception apply. In this case, we agree
and therefore reverse and remand this case for further proceedings consistent with this opinion.
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II. STANDARD OF REVIEW
“In reviewing the denial of a motion to suppress evidence claiming a violation of a
person’s Fourth Amendment rights, we consider the facts in the light most favorable to the
Commonwealth, the prevailing party at trial.” Malbrough v. Commonwealth, 275 Va. 163, 168
(2008). To prevail, the accused must “show that the trial court committed reversible error.” Id.
In conducting our review, we are “bound by the trial court’s factual findings unless those
findings are plainly wrong or unsupported by the evidence”; however, we review “the trial
court’s application of the law de novo.” Id. at 168-69.
III. ANALYSIS
Under the Fourth Amendment, the government may not subject an individual to an
unreasonable search. U.S. Const. amend. IV. A search conducted without a warrant is
presumptively unreasonable unless the prosecution can prove that an exception to the warrant
requirement applied. See Abell v. Commonwealth, 221 Va. 607, 612 (1980) (emphasizing that
warrantless searches are “per se unreasonable, subject to a few well-defined exceptions”).
Because Hudgens did not obtain a warrant to search the Altoids tin, his search of that container is
presumptively unreasonable unless an exception to the warrant requirement applies.
A. Probable Cause and the Automobile Exception
On appeal, the Commonwealth contends that Hudgens had probable cause to search the
Altoids tin under the automobile exception and urges this Court to revisit the trial court’s
probable cause determination pursuant to the “right-result different-reason” doctrine.
The “automobile exception” provides one way for an officer to search a vehicle without
first obtaining a warrant authorizing the search. Maryland v. Dyson, 527 U.S. 465, 466-67
(1999). This exception applies when an officer has probable cause to believe that a vehicle
contains evidence of criminal activity. Id.
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Probable cause exists when “there is a fair probability that contraband or evidence of a
crime will be found in a particular place.” Curley v. Commonwealth, 295 Va. 616, 622 (2018)
(quoting Jones v. Commonwealth, 277 Va. 171, 178 (2009)). However, the Supreme Court of
Virginia has repeatedly held that probable cause cannot be established “solely on the observation
of material which can be used for legitimate purposes, even though the experience of an officer
indicates that such material is often used for illegitimate purposes.” Cauls v. Commonwealth, 55
Va. App. 90, 100 (2009) (quoting Grandison v. Commonwealth, 274 Va. 316, 321 (2007)). Even
when such an item is in plain view, its “incriminating character” must be “immediately apparent”
to justify a search and seizure of the item. Id. (quoting Minnesota v. Dickerson, 508 U.S. 366,
375 (1993)).
Here, the trial court correctly found that Hudgens had no probable cause to search the
Altoids tin. Although Hudgens testified that he observed Baker making movements toward the
center console and toward the door compartment where the Altoids tin was located, an Altoids
tin is an item that can be used for legitimate purposes. Hudgens testified that he retrieved the
Altoids tin from the driver’s side door compartment because, based on his experience, Altoids
tins can be used as heroin kits; however, no evidence indicates that it was immediately apparent
as a heroin kit. Even though Hudgens testified to “hear[ing] like a metallic rattling inside the
door” and testified to his experience in recovering Altoids tins used as drug kits, probable cause
does not follow from that when the container could have plausibly held legitimate items. As the
trial court noted, “[i]t could have [held] anything,” such as “loose change.”
Indeed, the evidence shows that the incriminating nature of the Altoids tin was not
revealed until after Hudgens seized the container from the door compartment, opened it, and
searched its contents with a flashlight. Only after Hudgens followed that series of steps did he
determine that the Altoids tin possibly contained heroin. We, therefore, find that the trial court
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did not err in ruling that Hudgens had no probable cause to search the Altoids tin. Neither the
automobile nor plain view exceptions justified Hudgens’s seizure and search of the Altoids tin.
B. The Search Incident to Arrest Exception
The search incident to arrest exception to the Fourth Amendment search warrant
requirement could also obviate the need for police to secure a warrant before searching a vehicle.
Arizona v. Gant, 556 U.S. 332, 346 (2009). In fact, the trial court ruled in this case that the
search of the Altoids tin was lawful under this exception.
Baker, however, challenges that ruling and argues that the search incident to arrest
exception in Gant did not authorize Hudgens’s warrantless search of the Altoids tin. In Gant, the
United States Supreme Court held that “[p]olice may search a vehicle incident to a recent
occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at
the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of
arrest.” Id. at 351. Baker specifically argues that the officer safety prong of the Gant test was
not satisfied when Hudgens searched the Altoids tin because she had been removed from the
vehicle and placed in restraints before the search. Baker also argues that the evidentiary prong of
the Gant test was not satisfied because the search of the Altoids tin was not related to evidence of
the crime for which she was arrested, namely a probation violation related to a prior larceny.
The trial court’s ruling that the search of the Altoids tin was a lawful search incident to
arrest was erroneous under Gant. It is undisputed that when Hudgens searched the Altoids tin, he
had already removed Baker from the vehicle, handcuffed her with her hands behind her back,
and escorted her away from the vehicle’s passenger compartment. Baker was therefore not
“within reaching distance of the passenger compartment at the time of the search.” Id.
Moreover, Hudgens did not testify that he was concerned for his safety. Thus, the need for
officer safety—as reflected in the first prong of the Gant test—did not apply.
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Similarly, the need to preserve evidence of the offense of arrest—as reflected in the
second prong of the Gant test—did not apply. Hudgens testified that he searched the Altoids tin
only because, in his experience, such items could be used to store drugs. Hudgens never testified
that he believed that the vehicle contained evidence of the offense of arrest—here, a probation
violation. Hudgens testified only that he heard a “metallic rattling,” saw the Altoids tin, and then
searched the vehicle. Because the facts in this case are wholly insufficient to invoke the search
incident to arrest exception to the warrant requirement, Hudgens’s warrantless search of the
Altoids tin was impermissible under Gant. On appeal, the Commonwealth correctly abandoned
this justification for the search.
C. The Inevitable Discovery Exception
Resolving Baker’s final challenge turns upon whether discovery of the contraband was
inevitable when Benton, the owner of the vehicle, consented to Hudgens’s request to search
where the Altoids tin was found. Because Benton’s consent was procured only after the illegal
search of the Altoids tin and after Hudgens confronted Benton with the tin’s illegal contents,
Baker assigns error to the trial court’s ruling that the Altoids tin would have inevitably been
discovered. We agree with Baker; Benton’s consent did not cure the preceding illegal search.
Evidence recovered from an illegal search is “subject to the exclusionary rule, which
prohibits the introduction of evidence, tangible or testimonial, acquired during an unlawful
search.” Carlson v. Commonwealth, 69 Va. App. 749, 758 (2019). The “[e]xclusion of evidence
is a last resort rather than the first impulse,” and is only justifiable when the exclusion would
“deter police misconduct.” Id. at 759.
Determining whether evidence should be excluded turns upon whether the discovery of
the evidence was “come at by exploitation of [the initial] illegality or instead by means
sufficiently distinguishable to be purged of the primary taint.” Id. (quoting Commonwealth v.
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Ealy, 12 Va. App. 744, 755 (1991)). “Evidence is sufficiently distinguishable from the initial
illegality” if an independent source existed or, relatedly, the evidence would have been
inevitably “gained without the unlawful action.” Id. Alternatively, the taint of the initial
illegality is purged when “the connection between the evidence and the illegality” is sufficiently
attenuated. Id.; Kyer v. Commonwealth, 45 Va. App. 473, 483 (2005) (en banc) (explaining the
case-specific nature of attenuation, but noting that courts consider factors like the “amount of
time between the illegal action and the acquisition of the evidence, the presence of intervening
circumstances like consent, and the purpose and flagrancy of the official misconduct”); see also
Brown v. Illinois, 422 U.S. 590, 599 (1975) (finding that voluntary consent may be an
intervening circumstance, but that it must be “sufficiently an act of free will” to purge the taint of
an illegal entry).
Here, the purported attenuation was Benton’s consent. Thus, we must determine whether
her consent was the product of her “free will,” and therefore sufficient to purge the taint of the
illegal search, or whether the consent itself “was obtained as a product of the illegal search.”
Wood v. Commonwealth, 27 Va. App. 21, 30 (1998) (en banc).
In this case, as in Wood, we conclude that “[t]he circumstances surrounding” the initial
search of the vehicle and the later request for Benton’s consent to search “manifestly
demonstrate” that her consent was “‘come at by exploitation of [the initial] illegality’ rather than
‘by means sufficiently distinguishable to be purged of the primary taint.’” Id. at 31 (quoting
Ealy, 12 Va. App. at 757).
Significantly, the search preceded the consent; Benton watched as Hudgens searched both
the vehicle and the Altoids tin. Hudgens subsequently confronted Benton with the contents of
the tin and the accusation that it contained contraband. Only after discovering the incriminating
evidence did Hudgens belatedly seek Benton’s consent. That belated request came too late. No
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intervening circumstances existed aside from consent, and Benton was not advised that she could
refuse consent. Finally, no time had passed between the illegal search and the acquisition of the
evidence. Based on this record, we find that Benton’s consent was procured through exploitation
of the initial illegal search, not by means sufficiently distinguishable from the illegal search to
purge the taint. Because Benton’s consent was tainted, we find that the inevitable discovery
exception does not apply.
D. Remedy
Although excluding evidence is a “last resort,” this remedy is proper when evidence is
the fruit of an illegal search and suppression will yield “appreciable deterrence” of police
misconduct. Herring v. United States, 555 U.S. 135, 140-41 (2009). In this matter, excluding
the Altoids tin is proper because Hudgens plainly violated the Fourth Amendment by searching
the tin without probable cause and suppression will likely deter such conduct in the future.
IV. CONCLUSION
For these reasons, we reverse the decision of the trial court and remand the matter for
further proceedings not inconsistent with this opinion.
Reversed and remanded.
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