Commonwealth v. Rodney Courtney Rogers ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Kelsey and Senior Judge Willis
Argued By teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 2308-02-1 JUDGE D. ARTHUR KELSEY
FEBRUARY 25, 2003
RODNEY COURTNEY ROGERS
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Charles E. Poston, Judge
Jennifer R. Franklin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellant.
David W. Bouchard for appellee.
The Commonwealth appeals the trial court's decision to
suppress evidence discovered during a warrantless search of a
vehicle recently occupied by Rodney Courtney Rogers. Though the
trial court found that the police officers had probable cause to
believe the vehicle contained narcotics, the court found the
search unlawful because no "exigent circumstances" existed. For
the following reasons, we reverse.
I.
On appeal from a denial of a suppression motion, we review
the evidence in the light most favorable to the Commonwealth,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
giving it the benefit of any reasonable inferences. Bass v.
Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000); see
also Bryant v. Commonwealth, 39 Va. App. 465, 470-71, 573 S.E.2d
332, 334-35 (2002).
In September 2001, Officer Robert Dickason of the Norfolk
Police Department began receiving information from three
confidential informants asserting that Rogers was engaged in
drug distribution. Dickason had worked with the informants in
the past and had made arrests based on information provided by
two of the informants. One of these informants had made
controlled buys for Dickason.
All three informants provided information that Rogers,
operating out of a "white van or a white BMW," would "sell
heroin and cocaine, mainly heroin." They informed Dickason that
Rogers would "keep heroin up his sleeve, his left sleeve in
particular." "Once he was finished dealing what he had up in
his sleeve, he would go back to his vehicle —— whether it be the
van or the BMW —— and recover more out of there and slip it up
his sleeve and then walk back to wherever he was going to be
selling at."
On February 25, 2002, a fourth informant approached
Dickason and agreed to make a controlled purchase from Rogers.
Although Dickason had never worked with this informant, the
informant corroborated what Dickason had been told about the
mode of drug distribution used by Rogers. This informant called
- 2 -
Rogers in Dickason's presence and set up a meeting with Rogers
(15 minutes after the call) at a McDonald's restaurant to
purchase heroin. As Officer Dickason and his partner arrived at
the restaurant, they observed Rogers "pull his van into the Taco
Bell lot which is just west of the McDonalds." They watched
Rogers exit the van and walk toward the McDonalds. The officers
pulled in behind the van, verified the license plates, and
observed Rogers returning to the van.
The officers confronted Rogers and identified themselves.
After his partner patted Rogers down, Officer Dickason "went
immediately to his left sleeve . . . grabbed his left sleeve"
and "felt something other than his clothing." Upon unrolling
the sleeve, Dickason found "three caps of suspected heroin" in a
yellow tissue. The officers arrested Rogers, advised him of his
Miranda rights, and asked for consent to search his van. Rogers
declined.
The officers called for a narcotics dog and waited "30 to
45 minutes" for the dog to arrive. After arriving at the scene,
Officer Maurice Joseph walked his trained narcotics dog, Ace,
around "the exterior of the vehicle." Ace "made an alert to the
passenger-side door seam." When the officers opened the van's
doors, Ace "alerted to a briefcase that was behind the driver's
seat in the rear passenger area." The officers seized the
briefcase which contained cocaine and heroin.
- 3 -
A grand jury indicted Rogers on one count of possession of
cocaine with intent to distribute and one count of possession of
heroin with intent to distribute. Rogers filed a motion to
suppress the evidence found during the officers' searches. The
trial court denied the motion to suppress the evidence found on
his person, but granted the motion to exclude any evidence of
the narcotics found in the van.
Despite finding that the officers had probable cause to
search the vehicle, the trial court suppressed the evidence
because "there were no exigent circumstances" justifying a
warrantless search. In particular, the court noted, there was
"no danger of flight," "no danger that the evidence would
disappear or be compromised in any way," and the officers had
"ample time to obtain a warrant."
The Commonwealth filed this interlocutory appeal pursuant
to Code § 19.2-398(A)(2) contending that the trial court erred
as a matter of law in requiring a showing of exigent
circumstances to justify the warrantless search of the vehicle.
II.
Though the ultimate question whether the officers violated
the Fourth Amendment triggers de novo scrutiny on appeal, the
trial court's findings of "historical fact" bind us due to the
weight we give "to the inferences drawn from those facts by
resident judges and local law enforcement officers." Davis v.
- 4 -
Commonwealth, 37 Va. App. 421, 429, 559 S.E.2d 374, 378 (2002)
(citing Neal v. Commonwealth, 27 Va. App. 233, 237, 498 S.E.2d
422, 424 (1998)).
For purposes of this appeal, however, the parties do not
dispute the historical facts. Rogers concedes that probable
cause existed to search the van for drugs. See generally
Alvarez v. Commonwealth, 24 Va. App. 768, 773-76, 485 S.E.2d
646, 648-50 (1997) (finding probable cause to search where dog
alerted on package in cargo bay of bus). 1 He also takes no issue
with the potential mobility of the parked van. Instead, Rogers
argues that the Fourth Amendment requires a separate showing of
exigent circumstances before the officers could conduct a
warrantless search of his vehicle. We disagree.
As the United States Supreme Court has held, "under our
established precedent, the 'automobile exception' has no
separate exigency requirement." Maryland v. Dyson, 527 U.S.
465, 467 (1999) (per curiam); see also Pennsylvania v. Labron,
518 U.S. 938, 940 (1996) (per curiam) ("If a car is readily
mobile and probable cause exists to believe it contains
contraband, the Fourth Amendment . . . permits police to search
the vehicle without more."). A vehicle search may be conducted
if based on "facts that would justify the issuance of a warrant,
1
Rogers contested probable cause in his brief, but
conceded the issue during oral argument.
- 5 -
'even though a warrant has not been actually obtained.'" Dyson,
527 U.S. at 467 (quoting United States v. Ross, 456 U.S. 798,
809 (1982)) (emphasis omitted). The exception rests on the
inherent mobility of vehicles, as well as the observation that
"the expectation of privacy with respect to one's automobile is
significantly less than that relating to one's home or office."
California v. Carney, 471 U.S. 386, 391 (1985) (quoting South
Dakota v. Opperman, 428 U.S. 364, 367 (1976)).
We acknowledge that the Virginia Supreme Court in McCary v.
Commonwealth, 228 Va. 219, 227, 321 S.E.2d 637, 641 (1984),
restated the automobile exception as requiring "both probable
cause to believe the car contains evidence of crime and exigent
circumstances." Despite this seemingly unqualified statement,
however, McCary went on to add this qualification:
An argument is sometimes made that the
United States Supreme Court no longer
requires exigent circumstances to justify a
warrantless automobile search but instead
requires only a showing of probable cause
. . . . We need not decide that issue in
the present case in view of our holding that
there were exigent circumstances.
Id. at 227 n.*, 321 S.E.2d at 641 n.* (citations omitted). In
other words, McCary did not hold that the Fourth Amendment
imposed a separate exigency requirement —— only that, if it did,
the facts of that case satisfied the requirement. Given the
clarity of Dyson on this point, the exigent circumstances dicta
in McCary (as well as our cases repeating it, see, e.g., Jackson
- 6 -
v. Commonwealth, 22 Va. App. 347, 355, 470 S.E.2d 138, 143
(1996)), have no continuing precedential weight. 2
In his suppression motion, Rogers also asserted that the
warrantless search of his van violated Virginia constitutional
law prohibiting "illegal searches and seizures." We again
disagree. "Our courts have consistently held that the
protections afforded under the Virginia Constitution are
co-extensive with those in the United States Constitution."
Sabo v. Commonwealth, 38 Va. App. 63, 77, 561 S.E.2d 761, 768
(2002) (quoting Henry v. Commonwealth, 32 Va. App. 547, 551, 529
S.E.2d 796, 798 (2000), and Bennefield v. Commonwealth, 21
Va. App. 729, 739-40, 467 S.E.2d 306, 311 (1996)).
For these reasons, the trial court erred as a matter of law
in holding that the automobile exception to the warrant
requirement requires a separate showing of exigent
circumstances. Concerns about "danger of flight," the
possibility that the "evidence would disappear," and the "ample
time" available to obtain a warrant do not figure into the
analysis. The Fourth Amendment permits a warrantless search of
2
In cases involving the application of federal
constitutional principles, the Supremacy Clause, U.S. Const.
art. VI, cl. 2, does not allow state court decisions to take
precedence over opinions of the United States Supreme Court.
See generally Reynoldsville Casket Co. v. Hyde, 514 U.S. 749,
750-51 (1995); Harper v. Virginia Dep't of Taxation, 509 U.S.
86, 100 (1993).
- 7 -
a readily mobile vehicle upon a showing of probable cause.
Dyson, 527 U.S. at 467. No further exigencies need be shown. 3
III.
In sum, the trial court erred in suppressing the evidence
seized from the van on the ground that "there were no exigent
circumstances in this case." We reverse the suppression order
and remand this matter for continued proceedings consistent with
this opinion.
Reversed.
3
Because the Commonwealth did not argue to the trial court
that the warrantless search of Rogers's van was incident to his
arrest, that argument has been waived on appeal. See Rule
5A:18. See generally Cason v. Commonwealth, 32 Va. App. 728,
736, 530 S.E.2d 920, 924 (2000) (The "only prerequisites to a
search of an automobile incident to arrest are that the search
is contemporaneous with the arrest and the arrestee is a recent
occupant of the vehicle."); Armstrong v. Commonwealth, 29
Va. App. 102, 112-13, 510 S.E.2d 247, 252 (1999); Glasco v.
Commonwealth, 26 Va. App. 763, 773, 497 S.E.2d 150, 154 (1998),
aff'd, 257 Va. 433, 513 S.E.2d 137 (1999).
- 8 -