Trevor Tyron Adderly v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Overton
Argued by teleconference
TREVOR TYRON ADDERLY
MEMORANDUM OPINION * BY
v. Record No. 0785-01-1 JUDGE ROSEMARIE ANNUNZIATA
AUGUST 27, 2002
COMMONEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John C. Morrison, Jr., Judge
William P. Robinson, Jr. (Robinson, Neeley &
Anderson, on brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Trevor Tyron Adderly was indicted by a grand jury alleging
that he possessed more than one-half ounce, but less than five
pounds of marijuana with intent to distribute, in violation of
Code § 18.2-248.1. Adderly moved to suppress evidence found
during the search of his truck. The trial court denied the
motion, and Adderly pled guilty to the charge, conditioned upon
his ability to appeal that denial. The trial court convicted
Adderly and sentenced him to ten years in prison, with eight
years suspended. Adderly now appeals the trial court's denial
of his motion to suppress. For the reasons that follow, we
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
affirm the trial court's decision to deny his motion to suppress
and affirm his conviction.
Background
On August 12, 1998, Norfolk Police Investigator Todd
Sterling and two other plain-clothed officers stopped a vehicle
on Military Highway for a traffic violation. Sterling was
working with the Vice and Narcotics Division at the time.
The driver of the vehicle, who later proved to be Jermaine
Adderly, produced several different "identification-type
documents," in response to a request for his license. The
documents listed 1426 Picadilly Street, Apartment A, as the
holder's address. The officers concluded they "couldn't really
charge [the driver] until [they] found his true identity," and
went to the Picadilly Street address to verify the driver's name
and address.
When they arrived, Sterling noticed a 1996 "Chevy Tahoe"
parked at the apartment. He ran a DMV check on the license
plates, but they "didn't come back to anything." At Sterling's
request, a uniformed officer went to the door of the apartment.
Trevor Tyron Adderly, the defendant, answered the door, and
Sterling and the other uniformed officer walked up to the
doorway. Sterling detected the odor of marijuana coming from
the apartment. He asked Adderly if the truck in the front yard
belonged to him, and Adderly responded that it did. When
Sterling advised Adderly that the license plates did not "come
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back to his vehicle," Adderly responded that he did not know why
that would be the case.
Sterling continued his conversation with Adderly, advising
him that Jermaine Adderly had been arrested and some documents
in his possession linked him to the 1426 Picadilly address.
When Sterling explained that he was attempting to verify
Jermaine Adderly's identity so a summons could be issued,
Adderly acknowledged that Jermaine lived at the address.
Sterling asked Adderly if there were any guns or drugs in
the apartment. Adderly responded that he had a gun and a
permit, and directed Sterling to the bedroom to show it to him.
After examining the gun and permit, Sterling saw an ashtray that
contained marijuana. When asked, Adderly stated the drugs
belonged to him, explaining he had just finished smoking a
joint. After advising Adderly of his Miranda rights, Sterling
asked him if he could search the apartment for drugs. To
alleviate Adderly's expressed concern about the absence of a
search warrant, Sterling told him that he would not charge him
with any drug offense based on drugs he might find in the
apartment and that he would simply take the contraband and
"voucher it." Accepting the terms proffered, Adderly agreed to
the search of the apartment. Sterling found evidence of drug
offenses in the apartment, but assured Adderly he would not
bring any charges based on that evidence.
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He then asked if there were any drugs or guns in the "Chevy
Tahoe." Adderly responded in the negative. Sterling asked if
he could search the truck, and Adderly responded in the
affirmative and gave Sterling the keys. In the truck, Sterling
found 70 plastic baggies of marijuana. Adderly denied the drugs
belonged to him, and denied knowledge that they were in his
truck. Adderly was arrested based on the marijuana found in the
truck.
Analysis
Adderly contends the trial court erred in denying his
motion to suppress the evidence found in his truck on the ground
that his consent to the search of the truck was tainted by the
events preceding his consent. For the reasons that follow, we
disagree and affirm the decision of the trial court.
Subject to several well established exceptions, the Fourth
Amendment prohibits warrantless searches of any place or thing
in which a person has a reasonable expectation of privacy.
Mincey v. Arizona, 437 U.S. 385, 390 (1978). However, searches
made by the police pursuant to a valid consent do not implicate
the Fourth Amendment. Schneckloth v. Bustamonte, 412 U.S. 218,
222 (1973); Iglesias v. Commonwealth, 7 Va. App. 93, 99, 372
S.E.2d 170, 173 (1988) (en banc).
When relying upon consent as the justification for a
search, the Commonwealth must prove, given the totality of the
circumstances, that the consent was freely and voluntarily
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given. Bumper v. North Carolina, 391 U.S. 543, 548 (1968);
Hairston v. Commonwealth, 216 Va. 387, 388, 219 S.E.2d 668, 669
(1975); Commonwealth v. Rice, 28 Va. App. 374, 378, 504 S.E.2d
877, 879 (1998). "The voluntariness of the consent is a
question of fact to be determined by the trial court and must be
accepted on appeal unless clearly erroneous." Limonja v.
Commonwealth, 8 Va. App. 532, 540, 383 S.E.2d 476, 481 (1989)
(en banc). As such, the trial court's resolution of those
issues will not be reversed on appeal unless we find that the
decision was clearly erroneous. McGee v. Commonwealth, 25
Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (noting
that appellate courts are "bound by the trial court's findings
of historical fact unless 'plainly wrong' or without evidence to
support them and [this Court] give[s] due weight to the
inferences drawn from those facts by resident judges and local
law enforcement officers"); Satchell v. Commonwealth 20 Va. App.
641, 648, 640 S.E.2d 253, 256 (1995) (en banc) (great deference
is given the "peculiar fact finding capability of the trial
court" since it is "not limited to the stark, written record,"
but "has before it the living witnesses and can observe their
demeanors and inflections"). Therefore, Adderly must
demonstrate on appeal "that the [trial court's] denial of [his]
motion to suppress constitute[d] reversible error. Motley v.
Commonwealth, 17 Va. App. 439, 440-41, 437 S.E.2d 232, 233
(1993).
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Adderly contends that the police acted unlawfully before
obtaining his consent and deceived him as to their purpose. See
Commonwealth v. Ealy, 12 Va. App. 744, 757, 407 S.E.2d 681, 689
(1991) (upholding suppression of evidence obtained pursuant to
voluntary consent because it was tainted by previous unlawful
searches (citation omitted)); Limonja, 8 Va. App. at 540, 383
S.E.2d at 481 (noting that deception may invalidate a consent to
search). Specifically, Adderly claims that his express consent
was not freely and voluntarily given because: (1) the police did
not have a "legitimate basis" for appearing at his door; (2)
Sterling's questions about the possible presence of guns or
drugs in the apartment were improper; and (3) Sterling "bribed"
Adderly with the promise that any contraband found in the search
of the residence would not be used as a basis for criminal
charges. The evidence admitted at both the trial and
suppression hearings, viewed in the light most favorable to the
Commonwealth, Greene v. Commonwealth 17 Va. App. 606, 607, 440
S.E.2d 138, 139 (1994), does not support these contentions. 1
1
Although there is evidence to the contrary in the record,
we need not consider it. See McCary v. Commonwealth, 36 Va.
App. 27, 35, 548 S.E.2d 239, 243 (2001) (noting that it is the
trial court's role on a motion to suppress to evaluate and
resolve conflicts in the evidence). The trial court, in
concluding that Adderly voluntarily consented to the search,
credited the police officer's account of the events leading up
to and including Adderly's consent to the search of his truck
and resolved the conflicts between Sterling's testimony and that
of Adderly in favor of the former.
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First, we find that Sterling did not act unlawfully before
obtaining Adderly's consent to search his truck. The police may
approach a citizen's door and knock to seek his attention. See
Shaver v. Commonwealth, 30 Va. App. 789, 796, 520 S.E.2d 393,
396-97 (1999). Moreover, the record shows that the police went
to his apartment to verify the identity and address of an
individual whom they had stopped for a traffic infraction
because the suspect had produced one piece of identification
that listed Adderly's apartment as his address. The officers
needed the correct name and address to issue summonses and went
to the Adderlys' residence for that express purpose. Indeed,
during the visit, Sterling verified with Adderly that the
traffic offender lived at that address. Thus, the initial
encounter between Adderly and the police was consensual.
Second, Sterling's questions were proper and did not turn
the consensual encounter into a seizure. See Florida v.
Bostick, 501 U.S. 429, 434 (1991). Because Sterling smelled the
odor of marijuana coming from the defendant's apartment, he
asked Adderly if there were guns or drugs in the apartment.
Adderly voluntarily responded that he had a gun in his bedroom
for which he had a permit. He then asked Sterling if he wanted
to see it. Sterling accepted the offer and followed Adderly to
a bedroom in the rear of the apartment. After Sterling found
the evidence of drugs in Adderly's apartment, he asked Adderly
whether there were any drugs or guns inside the truck. Adderly
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responded that there was not. Adderly thus consensually engaged
in the encounter.
Third, Sterling's promise that he would not charge the
defendant with any drug offense based on drugs he found in the
apartment, pursuant to Adderly's consent, did not deceive
Adderly. Sterling honored his promise and did not charge
Adderly with any crimes based on the $8,615, two kilos of
marijuana, 86 plastic baggies of marijuana, two additional
weapons, and the digital scale he found in Adderly's apartment.
Adderly was charged based on evidence found during the search of
his truck, about which Sterling had made no promises.
In short, Adderly's contentions are without merit.
Moreover, the totality of the circumstances demonstrates that
Adderly's consent to the search of his truck was voluntary. See
Reynolds v. Commonwealth, 9 Va. App. 430, 439, 388 S.E.2d 659,
665 (1990) (noting that whether an accused's consent to search
was voluntary requires a review of the totality of the
circumstances). As noted above, the conversation between the
officer and Adderly prior to his consent to search his truck was
not coercive. In addition, Sterling was open and honest with
Adderly throughout the encounter. He told Adderly he did not
have a search warrant. He said he could apply for one, but he
was not sure that he could get one. He told Adderly he would
not charge him with any drug crimes based on evidence found
during the search of his apartment, and he remained true to his
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word. He never lied to or deceived Adderly. Moreover, when the
officer asked him whether he could search the truck, he said,
"[g]o ahead," gave the officer the keys, and added that there
was "nothing in there." Given these circumstances, the trial
court correctly found that the officer's actions were
objectively reasonable and that the defendant freely and
voluntarily consented to the search of the truck. See Ohio v.
Robinette, 519 U.S. 33, 39 (1996) (holding that the
voluntariness of consent is determined by an objective test).
Accordingly, we affirm the trial court's decision to deny
Adderly's motion to suppress the evidence found in his truck.
Affirmed.
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