Abell v. Com.

• Decision Date: 26 November 1980
• Docket Number: Nos. 800354,800355,s. 800354
• Citation: 272 S.E.2d 204,221 Va. 607
• Parties: James Ray ABELL v. COMMONWEALTH of Virginia. Fredrick Lee HOLSHOUSER v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 204

272 S.E.2d 204

221 Va. 607

James Ray ABELL v. COMMONWEALTH of Virginia.

Fredrick Lee HOLSHOUSER v. COMMONWEALTH of Virginia.

Record Nos. 800354, 800355.

Supreme Court of Virginia.

Nov. 26, 1980.

Michael Morchower, Richmond (John W. Luxton, Morchower & Associates, Richmond, on brief), for appellants.

James E. Kulp, Deputy Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ.

COCHRAN, Justice.

James Ray Abell and Fredrick Lee Holshouser were indicted for possession of cocaine on or about September 1, 1978, with intent to distribute the controlled drug. Each filed a motion to suppress the contraband as the product of an unlawful search and seizure. After conducting a joint hearing on June 7, 1979, the trial court overruled the motions. Abell and Holshouser pleaded not guilty and were tried by the court, sitting without a jury, on the evidence presented at the suppression hearing, subject to their continuing objection to the admissibility of the contraband. The court, finding both guilty as charged, entered judgment orders on December 5, 1979, sentencing each to serve 20 years in the penitentiary, with 10 years suspended.

On appeal, Abell and Holshouser challenge the validity of the warrantless search by the police of a locked attachEe case in the trunk of an automobile and the seizure of cocaine discovered therein. They also contend that the evidence was insufficient as a matter of law to prove that they had knowledge of the contraband.

At the suppression hearing, only two witnesses testified, L. C. Foster, Jr., and Lloyd O. Gwaltney, both employed by the Department of State Police in the investigation of narcotics cases, Foster for six years, Gwaltney for one year. About August 15, 1978, both were ordered with other investigators to maintain a continuing 24-hour surveillance of James Steinman, a Richmond resident who was suspected of being a drug dealer. An informant had reported that he had purchased quantities of drugs from one of Steinman's lieutenants, but had been unable to make contact with Steinman. Pursuant to a court order, the police were intercepting Steinman's telephone calls.

On September 1, 1978, the officers learned, through an intercepted telephone conversation, that Steinman was leaving his apartment to meet someone at another location. Members of the investigating team followed him and a female companion, Debra Barrack, to Apartment 703-D of the Sturbrook Village Apartments. Foster parked where he could keep the parking lot of the apartment complex under observation, and Gwaltney stationed himself where he could observe the apartment that Steinman and the woman entered. Gwaltney told Foster that he had been informed a year and a half or two years previously that "a right good-size drug dealer" named Abell, whom police had never been able "to get", lived in one of the apartments.

Foster testified that about 1:15 p. m. he observed a green Mercury, driven by a man later identified as Holshouser, pull into the parking lot. Checking the license number, Foster ascertained that the vehicle was owned by Abell, whose address was listed as Apartment 703-D, Sturbrook Village Apartments. Although Foster could not see where the driver went, he received a radio message that the man entered Apartment 703-D. About 1:20 p. m., a Mercedes arrived in the parking lot. The driver remained in the car for as long as 30 seconds looking in all directions, got out, looked over the parking lot, and, as Gwaltney reported to Foster, went into Apartment 703-D. A license check revealed that the Mercedes belonged to a man named Traina, who another officer said was "supposed to be" an associate of one Robert Ring. Foster concluded that the driver of the Mercedes was probably Ring.

At 1:23 p. m., Gwaltney radioed Foster that Ring and a man later identified as Abell had left the apartment. They came into Foster's view as they walked to the rear of the Mercedes. Opening the trunk of the car, Ring removed a brown 8 X 11 manila envelope and handed it to Abell. After opening the envelope and peering inside, Abell returned it to Ring. Both men turned towards the apartment, where Steinman was looking out the window, and waved. Foster saw no sign given by Steinman acknowledging these gestures. Ring removed from the trunk a brown attachEe case which he delivered to Abell before driving the Mercedes from the premises. Abell, case in hand, walked towards the apartment.

At 1:45 p. m., Foster saw Holshouser return to the Mercury with what appeared to be the same brown attachEe case. Holshouser placed the case in the trunk of the car, removed an unidentified black object, shut the trunk, and walked in the direction of the apartment. Five minutes later, Steinman and his girlfriend departed in a blue Plymouth.

Abell and Holshouser departed in the Mercury at 2:20 p. m., with Holshouser driving and Abell riding in the passenger seat beside him. Having decided to stop and search the vehicle, the investigating team arranged to have troopers stationed on Route 60 to give whatever assistance might be required. Foster, Gwaltney, and Investigator Barrett of the State Police followed the car as it proceeded to Route 60, continued a short distance on that highway, turned into an intersecting street, and parked in a private driveway at Holshouser's residence on Robious Road. The investigators stopped behind the Mercury, informed Holshouser that they believed he was transporting narcotics, and requested permission to search the vehicle. Although both Holshouser and Abell refused to consent to a search, Barrett removed the keys from the ignition and unlocked the trunk. He discovered that the brown attachEe case inside the trunk was locked. When neither Holshouser nor Abell would disclose the combination to the lock, Barrett used a screwdriver to force open the case, which contained cocaine in manila envelopes. Seizing the contraband, the officers arrested both men.

Trooper Gwaltney corroborated Foster's testimony. He observed Steinman and his girlfriend enter Apartment 703-D. He watched as Abell and Ring looked into the trunk of the Mercedes, turned towards the apartment, and raised their hands in the air. He saw Abell carry a brown attachEe case into the apartment, and, looking through the apartment window, he saw Abell and Steinman make several telephone calls. After Steinman and his female companion departed, Gwaltney saw Holshouser, accompanied by Abell, carry the brown attachEe case from the apartment, place it in the trunk of the Mercury, and drive away in that vehicle.

We will assume, without deciding, that the officers had probable cause to believe that Abell and Holshouser were transporting controlled drugs. Such probable cause, however, must necessarily have been based upon the officers' observation of the handling of the attachEe case; otherwise there was no reason for them to decide to follow the Mercury rather than the Mercedes or the Plymouth. Indeed, the wiretap, which required court approval after at least a minimal showing of probable cause under Code § 19.2-68, was directed at Steinman. Warrantless searches, of course, are per se unreasonable, subject to a few well-defined exceptions. Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973). However, with probable cause to believe that the attachEe case contained narcotic drugs, the officers could lawfully stop the Mercury, search it, and seize the case without a warrant. Arkansas v. Sanders, 442 U.S. 753, 761, 99 S.Ct. 2586, 2591, 61 L.Ed.2d 235 (1979).

In Sanders, the officers stopped a taxi occupied by the defendant, searched the trunk, seized his unlocked suitcase, which they had probable cause to believe contained marijuana, opened it on the spot without consent and without a warrant, and found marijuana inside. The Supreme Court held that the search of the taxi and seizure of the suitcase were valid, but, in the absence of exigent circumstances, the warrantless search of the case was unreasonable. When the officers assumed exclusive control of the piece of luggage they eliminated any danger that it or the contraband could have been removed before a search warrant could be obtained. The majority opinion stated that "as a general rule there is no greater need for warrantless searches of luggage taken from automobiles than of luggage taken from other places." 442 U.S. at 763-64, 99 S.Ct. at 2592-93.

The majority, concurring, and dissenting opinions in Sanders referred to United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), where police officers had probable cause to believe that a two hundred pound footlocker contained marijuana. After the defendant and his companions had lifted the footlocker into a parked car, the officers arrested them, seized the trunk, searched it an hour and a half later without a warrant, and found marijuana. It was conceded that this was not a search within the automobile exception to the warrant requirement approved in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). The Court declined, absent exigent circumstances, to extend the rationale of the automobile exception to luggage such as the footlocker, when held within the exclusive control of the police, and invalidated the search. ¹ Recognizing that the diminished expectation of privacy in an automobile also provides a basis for the automobile exception, the Court held that the expectation of privacy in personal luggage, being substantially greater, does not justify the exception. 433 U.S. at 12-13, 97 S.Ct. at 2484-2485.

Abell and Holshouser contend, as they did in the court below, that under Sanders and Chadwick the search of the attachEe case was invalid. They say that these cases require reversal of their convictions. The Commonwealth contends on appeal for the first time that neither Abell nor...