Allen v. Com.

• Decision Date: 17 February 1987
• Docket Number: No. 0846-85,0846-85
• Citation: 3 Va.App. 657,353 S.E.2d 162
• Parties: Deborah Plaster ALLEN and James McKinley Allen v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 162

353 S.E.2d 162

3 Va.App. 657

Deborah Plaster ALLEN and James McKinley Allen v. COMMONWEALTH of Virginia.

Record No. 0846-85.

Court of Appeals of Virginia.

Feb. 17, 1987.

John W. Drescher (Pickett, Lyle, Siegal, Drescher & Croshaw, Virginia Beach, on brief), for appellants.

Leah A. Darron, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BAKER, BARROW and HODGES, JJ.

JOSEPH E. BAKER, Judge.

Deborah Plaster Allen and James McKinley Allen (appellants) appeal from judgments of the Circuit Court of the City of Chesapeake (trial court) which convicted Deborah of possession of marijuana, possession of cocaine, and possession of methamphetamine, and James of possessing a concealed weapon (a .38 caliber revolver), after having been convicted of a felony involving the use of a firearm, possession of cocaine, and possession of marijuana with intent to distribute as an accommodation. All counts of the indictments of each appellant were tried together.

In their petition for appeal appellants assigned several errors; however, the appeal was granted limited to issues of: (1) whether appellant James McKinley Allen was unlawfully detained and unreasonably searched by law enforcement personnel without probable cause in violation of the Fourth Amendment to the Constitution of the United States; and (2) whether, contrary to the provisions of Code § 19.2-187, the trial court erroneously admitted three certificates of analysis prepared by the Bureau of Forensic Science into evidence against each appellant, as proof of the composition of certain substances taken from the person of James Allen and from the residence of both appellants.

On October 27, 1984, an informant advised Chesapeake police officer W.H. Barber that a motorcycle gang known as the "Southern Riders" (gang) had a clubhouse in the home of appellants. The informant further told Barber that he previously observed illegal drugs in the house; that he saw members of the gang selling the drugs from the house to various Tidewater area customers; and that several members of the gang discussed with him the manufacture of methamphetamines. On that same day the informant told Suffolk police officer C.E. Lilly that there was a "party" at appellants' home during which stolen guns, motorcycle parts and marijuana were being swapped.

Pursuant to the information furnished them, Officers Barber and Lilly surveyed appellants' residence for three to four hours. During that time they observed eighteen vehicles parked in the yard and thirty people on the premises dressed in colored shirts of the type known to be worn by the gang. A number of these people were seen walking between appellants' house and silos located on the property. Four people removed shotguns or long-barreled guns from one of the vehicles and stood guard outside the house.

Following their lengthy surveillance of activities on appellants' property, the officers procured a search warrant, assembled a team of approximately twenty police officers and returned to appellants' house. As Lilly's vehicle approached appellants' house on the single lane driveway leading from the house to the public highway, it encountered a van coming from the direction of the house. The vehicles stopped, facing each other, on the driveway. Lilly, intending to "check out" the occupants of the van, approached the driver's side with his gun drawn and visible. He identified himself and informed the van's occupants that he had a search warrant for the residence of appellant "Jim Allen." When the occupants were directed to vacate the van, the driver identified himself as Jim Allen and voluntarily advised Lilly that he was carrying a concealed pistol, whereupon Lilly proceeded to search him. Allen offered no resistance. The search of Allen's person produced a .38 caliber handgun, a razor blade, a film canister containing substances believed to be cocaine and marijuana, other drug paraphernalia, and $1,785 in cash. Allen was handcuffed and detained in a police car while the search of the premises progressed. The search warrant was executed and various items appearing to be illegal drugs and paraphernalia were found along with evidence that the premises was the residence of appellants.

At trial, the Commonwealth sought to prove the identity of the substances found on appellant James Allen and in the premises occupied by both appellants, by the introduction of certificates of analysis without the presence of the scientist who prepared the certificates. The certificates were admitted over appellants' objection that the Commonwealth had not first proved compliance with the seven day provision of Code § 19.2-187.

When the Commonwealth rested, James Allen moved to strike the Commonwealth's evidence obtained in the search of his person on the ground that when he was detained he was effectively arrested without probable cause and searched in violation of the Fourth Amendment. The motion to strike was overruled. Various other motions were made on behalf of each appellant concerning the sufficiency of the evidence found in the house. Some were sustained, others overruled; whereupon, the defense rested and appellants were convicted.

I. THE SEARCH OF JAMES McKINLEY ALLEN

On information that illegal activity was abounding at or around appellants' residence the police conducted a surveillance for several hours during which time they observed conduct on the premises which reasonably led them to believe the information they were given was accurate. Immediately following the surveillance they obtained a search warrant authorizing a search for illegal drugs and associated paraphernalia, records, and papers showing the legal occupants of the dwelling. The premises to be searched was described as follows:

Two story, single family dwelling with white siding and dark colored roof to include the curtilage ¹ of this property which is approximately 4 metal silos and a two story barn in the same area as the silos, known as 3937 Cornland Road, Chesapeake, Va.

As the police entered the premises, they were aware from their previous surveillance that a van near the house contained shot guns and long-barreled guns which were openly displayed by four men who appeared to stand guard. The van driven by appellant James Allen traveled along a single lane driveway which led from the house where the guns were seen by the police. The police vehicle was driven along the same driveway toward the house. Each vehicle stopped as it approached the other. When Officer Lilly left the police vehicle and approached Allen's van it was reasonable that he arm himself as he did. Lilly informed Allen that he had a search warrant and directed Allen to get out of the van. The record does not indicate that Lilly threatened or questioned Allen before Allen stated that he was carrying a concealed gun, a loaded .38 caliber pistol. Lilly then searched Allen. ²

In Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), the Court approved the detention of a defendant who was leaving his house as the police approached with a warrant to search the house. The Court stated that the existence of a search warrant provided an objective justification for the detention. Id. at 703. Viewed in the light most favorable to the Commonwealth the evidence before us compels a decision consistent with Summers. We find no distinction between an owner descending the front steps of his house where a search warrant is about to be executed, and an owner leaving his house by the driveway in a motor vehicle.

At the moment of the detention appellant James Allen's statement that he was carrying a concealed weapon furnished...