Shawn Antonio Coles, etc. v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick
Argued at Richmond, Virginia
SHAWN ANTONIO COLES, s/k/a
SEAN COLES
MEMORANDUM OPINION * BY
v. Record No. 0693-95-2 JUDGE JOHANNA L. FITZPATRICK
MARCH 26, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Felipita Athanas for appellant.
John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Shawn Antonio Coles (appellant) was convicted in a bench
trial of possession of cocaine with intent to distribute. He
contends that the trial court erred in failing to suppress
evidence recovered during a warrantless search of his automobile.
Finding no error, we affirm.
On October 14, 1994, Officers Misiano and Ford of the
Richmond Police Department conducted a surveillance operation in
the 2500 block of Bradby Street in Richmond in response to
complaints of drug dealing. During this surveillance, at 10:00
p.m., Misiano saw appellant approach a parked car, open the
trunk, pull out a baggie with white powder, remove some of the
powder to give to another individual, place the baggie back in
*
Pursuant to Code § 17.116.010 this opinion is not
designated for publication.
the trunk, and close the trunk. Misiano believed that the baggie
contained cocaine. Misiano recognized appellant and knew that
there was an outstanding warrant for his arrest on an unrelated
charge. He did not arrest appellant at the time of the initial
observation, but chose to complete the surveillance operation.
Approximately three and one-half hours later, the officers
saw appellant walking a block and a half from the parked car
where they had earlier seen him involved in what they believed to
be a drug transaction. At that time, they arrested him on the
outstanding breaking and entering warrant. In a search incident
to the arrest, the officers found car keys and a beeper. The
officers returned appellant to the car where they had seen him
earlier, opened the trunk, and retrieved the baggie of white
powder. The car, which at that time was found to be inoperable,
was later towed to the police station. The baggie contained
20.56 grams of cocaine.
At the suppression hearing, Misiano testified that the
officers acted without obtaining a search warrant because: "[A]t
that time we didn't know if there were any other keys to that
vehicle floating around out there. We didn't want the vehicle to
leave the area. And, we had limited manpower at the time." The
trial court overruled the suppression motion, stating: "I think
the exigency of the circumstances of the automobile [justified
the search;] he could have had a buddy that saw him arrested, a
girlfriend, anybody could take the car away."
Searches conducted without prior
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judicial approval are per se unreasonable
under the Fourth Amendment, subject to
exceptions allowed when exigencies require
warrantless searches. Under the well-
established automobile exception to the
warrant requirement, an automobile may be
searched without a warrant where there are
both probable cause to believe the car
contains evidence of crime and exigent
circumstances.
McCary v. Commonwealth, 228 Va. 219, 227, 321 S.E.2d 637, 641
(1984) (citations omitted). "[P]robable cause exists when the
facts and circumstances within the officer's knowledge, and of
which he has reasonably trustworthy information, alone are
sufficient to warrant a person of reasonable caution to believe
that an offense has been or is being committed." Derr v.
Commonwealth, 6 Va. App. 215, 219-20, 368 S.E.2d 916, 918 (1988)
(quoting Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E.2d
833, 836 (1981), cert. denied, 456 U.S. 906 (1982)).
An automobile's mobility and the
likelihood that evidence will be lost or
destroyed if the automobile is permitted to
continue on its way present exigent
circumstances justifying an exception to the
warrant requirement. . . . Where police have
secured or seized an automobile to be
searched, . . . risk of removal of the car or
its contents may still exist and justify an
immediate warrantless search.
McCary, 228 Va. at 228, 321 S.E.2d at 641. "The exigency may
arise at any time and the fact that the police may have obtained
a warrant earlier does not negate the possibility of a current
situation's necessitating prompt police action." Patty v.
Commonwealth, 218 Va. 150, 156, 235 S.E.2d 437, 441 (1977)
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(quoting Cardwell v. Lewis, 417 U.S. 583, 595-96 (1974)), cert.
denied, 434 U.S. 1010 (1978).
In the instant case, both probable cause and exigent
circumstances were present. The officers' observations of
appellant's earlier behavior at the car provided ample probable
cause to believe a drug transaction had occurred. The decision
to continue their surveillance rather than immediately arrest
appellant does not dissipate this finding. Additionally, exigent
circumstances existed because the cocaine was in the automobile.
The Virginia Supreme Court has held that exigent circumstances
exist even when the police secure a vehicle on private property
and the vehicle is inoperative. See Patty, 218 Va. at 156-57,
235 S.E.2d at 441. This car was parked on a public street in an
area where drug transactions were being observed. The officers
had reason to believe that drugs were in the car's trunk and that
"there were other keys to that vehicle floating out there."
Thus, both the necessary probable cause and exigent circumstances
existed to support the search.
Lastly, even if the search had been flawed, the doctrine of
inevitable discovery would apply to this case. "Inevitable
discovery has long been recognized in Virginia as an exception to
the exclusionary rule." Walls v. Commonwealth, 2 Va. App. 639,
655, 347 S.E.2d 175, 184 (1986). For the inevitable discovery
doctrine to apply, the Commonwealth must show:
(1) a reasonable probability that the
evidence in question would have been
discovered by lawful means but for the police
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misconduct, (2) that the leads making the
discovery inevitable were possessed by the
police at the time of the misconduct, and (3)
that the police also prior to the misconduct
were actively pursuing the alternative line
of investigation.
Id. at 656, 347 S.E.2d at 185 (quoting United States v. Cherry,
759 F.2d 1196, 1204 (5th Cir. 1985)).
In the instant case, the requirements of the inevitable
discovery doctrine are clearly met. The police could have towed
the vehicle and conducted an inventory search because appellant
was already under arrest for the unrelated breaking and entering
charge. Thus, the officers had information that would have led
to the inevitable discovery of the cocaine, and they actively
pursued this alternative line of investigation.
Accordingly, we affirm the conviction.
Affirmed.
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