Albert v. Com.

• Decision Date: 19 August 1986
• Docket Number: No. 0184-85,0184-85
• Citation: 347 S.E.2d 534,2 Va.App. 734
• Parties: Alphonso ALBERT v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 534

347 S.E.2d 534

2 Va.App. 734

Alphonso ALBERT v. COMMONWEALTH of Virginia.

Record No. 0184-85.

Court of Appeals of Virginia.

Aug. 19, 1986.

William P. Robinson, Jr. (Robinson, Eichler, Zaleski & Mason, Norfolk, on brief), for appellant.

John H. McLees, Jr., Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Present: KEENAN, BENTON and HODGES, JJ.

HODGES, Judge.

While Alphonso Albert was being arrested on unrelated charges, drugs and drug paraphernalia spilled from a briefcase kicked over by one of the arresting officers. Based on the seizure of the contraband, Albert was indicted for possession of cocaine with the intent to distribute. After the Commonwealth rested its case, the trial court granted the defendant's motion to strike the evidence as to possession with intent to distribute and the jury found Albert guilty of possession of cocaine. In this appeal, Albert contends that the court erred in refusing to suppress the seized evidence, that the evidence at trial was insufficient to sustain his conviction of possession of cocaine and that the court erred in failing to grant a mistrial because of prejudicial remarks made by the prosecutor in his opening statement. He further argues that even if he was not entitled to a mistrial as a matter of right, the trial court erred in not permitting him to voir dire the jury to determine the effect of the prosecutor's statement. We find the court did not err and affirm.

The evidence shows that, acting on information received from a reliable informant, Investigator V.M. Boykin of the Norfolk Police Department and two fellow officers went to a Norfolk address to arrest Albert on a capias for failing to appear in the circuit court on a felony charge. A young boy answered the officers' knock on the door and, when their purpose was stated, pointed to the room where Albert was found. The officers were aware that Albert had previously been convicted of manslaughter and malicious wounding. Two of them wore bullet proof vests and one was armed with a shotgun. When they entered the room they found Albert in bed asleep in the nude. With their weapons drawn, the officers ordered Albert to bring his hands out slowly where they could see them. A cursory search of the bed was made for weapons and, while doing so, Investigator Boykin observed an attache case close enough to the bed that Albert could reach it. The case was open and covered by a book or magazine. Boykin kicked it over to make sure there were no weapons inside. Some of the contents spilled out, but he paid little attention to them at that time.

Albert was then ordered out of the bed. He was handed some of his clothes and permitted, under supervision, to go to the bathroom where he dressed. When Albert returned to the bedroom, Boykin noticed him stare at the briefcase. Without touching the case, Boykin observed what he believed to be drugs and drug paraphernalia. He had been a narcotics investigator for six years. The briefcase and contents were seized. In the case, the officers found Albert's wallet, prescription medicine bearing his name, glassine envelopes, a strainer, a measuring spoon and white powder. At the time of his arrest, Albert requested the return of his identification card found in the bag. Subsequently, a white substance found in one of the glassine envelopes tested positively as cocaine and Albert was indicted for possession of cocaine with intent to distribute.

Upon the conclusion of the Commonwealth's evidence, the court granted Albert's motion to strike the evidence as to possession of cocaine with intent to distribute and submitted the matter to the jury on the lesser offense of possession of cocaine. Albert presented no evidence. The jury found him guilty and fixed his punishment at confinement in the state penitentiary for five years.

I

Albert moved to suppress the evidence seized from the attache case at the time of his arrest. At the suppression hearing Albert testified that his hands were visible when the officers entered his bedroom; that the briefcase was positioned about three feet from the bed, was closed and latched; that he was permitted to go to the bathroom and the briefcase was first opened by the police when he returned to the bedroom; and that it was impossible for the briefcase to fall open in the manner described by the police officer.

Investigator Boykin testified that when he entered the bedroom Albert was covered and he ordered him to bring his hands from under the covers where they could be seen; that the attache case was in an open position covered by a book or magazine; that the attache case was right up against the bed; and that its contents were first divulged when he kicked it over to determine if it contained any weapons.

Albert called for the production of the briefcase and Investigator Boykin demonstrated how the bag was positioned and how the contents spilled when it was kicked.

The court found that the briefcase was in close proximity of the accused and could have contained a weapon. The court further found that the contents that spilled as a result of the kicking were in plain view and admissible into evidence.

The measure of the burden of proof with respect to factual questions underlying the admissibility of evidence is proof by a preponderance of the evidence.... In determining whether the Commonwealth has met its burden, the trial court, acting as a fact finder, must evaluate the credibility of the witnesses, resolve the conflicts in their testimony and weigh the evidence as a whole. Its factual finding "is to be given the same weight by the appellate court as is accorded the finding of fact by a jury."

Witt v. Commonwealth, 215 Va. 670, 674, 212 S.E.2d 293, 296-297 (1975) (citation omitted).

Albert concedes that the general rule is that when a person is placed under lawful arrest, the area subject to his immediate control is subject to a lawful search. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Albert argues, however, that at the time of the seizure of the drugs he was being held at gun point by three police officers. Since he was not a potential danger to the officers, the briefcase was effectively under their dominion and control and, therefore, no search or seizure was justified. He relies on United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).

Chadwick is distinguishable from this case. In Chadwick, drug enforcement agents in San Diego observed talcum powder spilling from a footlocker at a railroad station. The agents suspected that the locker contained drugs because they knew that powder of that type was used to mask the odor of marijuana and other drugs. This information was communicated to authorities in Boston which was the footlocker's destination. The agents in Boston observed Chadwick and two companions load the locker into Chadwick's automobile. Both the automobile and the footlocker were seized at the time of Chadwick's arrest and taken to the Federal Building. One and one/half hours after the arrest the agents searched the footlocker. Approximately two hundred pounds of marijuana was found. The Court held the search to be invalid because the drug agent had gained exclusive control of the locker and the accused was securely in custody. Id. at 15, 97 S.Ct. at 2485. The Court concluded that the search was not incidental to an arrest nor was it justified by any other exigency. Id.

In the present case, however, we have a search made contemporaneously with Albert's arrest. The trial court found that there was a potential danger to the police, that the briefcase could have contained weapons and was properly kicked over to make that determination.

In New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the Supreme Court rejected the argument that property seized incident to a lawful arrest cannot be subjected to a warrantless search because it is in the exclusive control of the police. The court said: "[U]nder this fallacious theory no search or seizure incident to a lawful custodial arrest would ever be valid; by seizing an article even on the arrestee's person, an officer may be said to have reduced that article to his 'exclusive control.' " Id. at 461-62 n. 5, 101 S.Ct. at 2865 n. 5.

The Fourth Circuit in United States v. Silva, 745 F.2d 840 (4th Cir.1984), cert. denied, 470 U.S. 1031, 105 S.Ct. 1404...