Archer v. Com.

• Citation: 492 S.E.2d 826,26 Va.App. 1
• Decision Date: 10 November 1997
• Docket Number: No. 1726-96-1,1726-96-1
• Parties: Jarrod R. ARCHER v. COMMONWEALTH of Virginia. Record
• Court: Court of Appeals of Virginia

Page 826

492 S.E.2d 826

26 Va.App. 1

Jarrod R. ARCHER v. COMMONWEALTH of Virginia.

Record No. 1726-96-1.

Court of Appeals of Virginia,

Norfolk.

Nov. 10, 1997.

Theresa B. Berry, Virginia Beach (Samford & Berry, P.C., on brief), for appellant.

John K. Byrum, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: BAKER, BRAY and OVERTON, JJ.

BAKER, Judge.

Jarrod R. Archer (appellant) appeals from his bench trial conviction by the Circuit Court of the City of Virginia Beach (trial court) for grand larceny and possession of a firearm by a convicted felon. Appellant contends that the trial court erred when it (1) failed to grant his motion to suppress evidence of a stolen gun found with his knife and (2) held that the evidence was sufficient, as a matter of law, to prove he possessed that gun. Finding no error, we affirm the convictions.

On July 22, 1995, Officers Colley, Phillips, and Robertson of the Virginia Beach Police Department responded to the dispatcher's report of an anonymous phone call advising that "a wanted person," appellant, was in room 114 at the Lakeside Motel on Virginia Beach Boulevard. The dispatcher advised that appellant was wanted by police for a probation violation and petit larceny. The caller had described appellant as a white male, approximately eighteen years old, about six feet tall, with red hair worn in a ponytail, and driving a light green GEO Storm. The caller further reported that appellant "would be armed with a knife and a gun and would fight police."

The officers arrived at the motel and saw a light green GEO Storm in front of room 114. Colley inspected the motel register and discovered that room 114 was registered to Kerry Maloney, who had been staying there with another person since July 19, a period of three days. Colley ran a check on the GEO Storm and discovered that it was also registered to Maloney.

Colley, Phillips, and Robertson approached the door to room 114 and Phillips knocked. Phillips stood to the right of the door and Colley and Robertson stood to the left. Receiving no response, Phillips knocked on the door again, "pretty hard this time." The door "apparently [was not] secure," and it slowly "eased open" to reveal a room about twelve feet by twelve feet in size.

Through the open door, Colley and Phillips saw a woman standing by one of two beds. The officers asked her if appellant was in the room. The woman, later determined to be Maloney, merely looked across the room to the area left of the door. Phillips then saw appellant, who matched the informant's description, standing to the left of the door. Phillips drew his gun, pointed it at appellant, and ordered appellant to step away from the window and show his hands. Appellant complied. Believing appellant to be armed, the officers entered the room, placed appellant on the bed and handcuffed his hands behind his back. When the officers asked, appellant said he was Richard Berryman. Subsequently, when he was taken outside, appellant admitted that he was Jarrod Archer, and he was arrested.

Colley remained inside with Maloney. Colley asked Maloney if any guns or knives were in the room. As she was replying that weapons were under a mattress, appellant was giving Phillips the same information. A gun and knife were found at the place each had advised that they would be found. Appellant admitted that the knife was his but disclaimed ownership of the gun. The uncontradicted evidence at trial proved the gun was stolen property that had been discovered missing by its owner only twenty-four hours earlier.

Prior to trial, appellant moved to suppress the gun on the ground that the warrantless entry and search of the motel room violated his constitutional rights. His motion was denied.

At trial, the Commonwealth introduced appellant's criminal record, which proved appellant previously had been convicted of a felony. When the Commonwealth rested and the trial court overruled appellant's motion to

strike, appellant rested without testifying or offering any evidence in his behalf.

MOTION TO SUPPRESS: WARRANTLESS ENTRY AND SEARCH

In reviewing the trial court's denial of a motion to suppress, "[t]he burden is upon [appellant] to show that th[e] ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error." Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980). Questions of reasonable suspicion and probable cause to make a warrantless search are subject to de novo review on appeal. See McGee v. Commonwealth, 25 Va.App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc ). "In performing such analysis, we are bound by the trial court's findings of historical fact unless 'plainly wrong' or without evidence to support them[,] and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers." Id. at 198, 487 S.E.2d at 261.

" 'The [F]ourth [A]mendment rights of a guest in a motel room are equivalent to those of the rightful occupants of a house.' " Alexander v. Commonwealth, 19 Va.App. 671, 674, 454 S.E.2d 39, 41 (1995) (quoting Servis v. Commonwealth, 6 Va.App. 507, 514, 371 S.E.2d 156, 159 (1988)). Ordinarily, therefore, the warrantless entry into a person's motel room is presumed unreasonable and violative of the Fourth Amendment. See id. Under Code § 19.2-81, however, a police officer "may arrest, without a warrant, for an alleged misdemeanor not committed in his presence when the officer receives a radio message from his department or other law enforcement agency within the Commonwealth that a warrant for such offense is on file." Moreover,

anonymous information that has been sufficiently corroborated may furnish reasonable suspicion justifying an investigative [encounter]. Every detail mentioned by an anonymous informer need not be verified to establish reasonable suspicion, [as long as] ... [s]ignificant aspects of the informer's information [are] independently corroborated [in order] ... to give "some degree of reliability to the other allegation" of the informant.

Bulatko v. Commonwealth, 16 Va.App. 135, 137, 428 S.E.2d 306, 307 (1993) (quoting Alabama v. White, 496 U.S. 325, 332, 110 S.Ct. 2412, 2417, 110 L.Ed.2d 301 (1990)) (citations omitted).

Once the officer confirms that the suspect detained pursuant to the investigative encounter is the person named in the arrest warrant, Code § 19.2-81 permits completion of the arrest without the warrant itself. That lawful arrest

justifies a contemporaneous warrantless search of the individual arrested and of the immediately surrounding area. "Such searches have long been considered valid because of the need 'to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape' and the need to prevent the concealment or destruction of evidence."

White v. Commonwealth, 24 Va.App. 446, 450, 482 S.E.2d 876, 877-78 (1997) (quoting New York v. Belton, 453 U.S. 454, 457, 101 S.Ct. 2860, 2862, 69 L.Ed.2d 768 (1981) (quoting Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969))); see also Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 1098, 108 L.Ed.2d 276 (1990). These principles apply even to searches conducted after the arrestee has been restrained, as long as the search is contemporaneous with the arrest. See White, 24 Va.App. at 450-51, 482 S.E.2d at 878; see also United States v. Silva, 745 F.2d 840, 847 (4th Cir.1984), cited with approval in Albert v. Commonwealth, 2 Va.App. 734, 739, 347 S.E.2d 534, 537 (1986) (upholding validity of search in motel room of locked zipped bag in possession of accused who had already been handcuffed and was being held at gunpoint).

The record here discloses that the police (1) were armed with information that a wanted person, appellant, described as an eighteen-year-old white male, approximately six feet tall, with red hair fashioned in a ponytail, was driving a green GEO Storm and could be found in a designated motel room, and (2) corroborated a substantial portion of the information, including the existence The police then had reason to believe that appellant was the wanted person named in the misdemeanor warrants, and they properly entered the room and took appellant into custody. See Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 1388, 63 L.Ed.2d 639 (1980) (in case involving warrantless felony arrest, holding that, "for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which a suspect lives when there is reason to believe the suspect is within"); United States v. Spencer, 684 F.2d 220, 222-24 (2d Cir.1982) (in case involving bench warrant issued for failure to appear on misdemeanor warrants, holding that Payton is not limited to felony warrants and applies to any arrest warrant issued by a neutral magistrate), cert. denied, 459 U.S. 1109, 103 S.Ct. 738, 74 L.Ed.2d 960 (1983). Upon confirming that appellant was, in fact, the wanted person, they arrested him on the outstanding misdemeanor warrants as permitted by Code § 19.2-81. After simultaneously being told by Maloney, in the room, and appellant, three feet outside the room, that a gun and knife were under a bed mattress, the police located a stolen gun and knife that support both verdicts. Forewarned that the wanted person would have a gun and knife and would "fight" the police, after verifying the other facts that had been reported to them by the dispatcher, the police properly made inquiry and conducted a follow-up search for the weapons contemporaneous with appellant's arrest.

of outstanding misdemeanor arrest warrants for appellant. Upon arrival at the motel, the police sighted the GEO Storm in front of the designated room, and they knocked on the door to conduct further inquiry. After the door had opened and before the officers...