Bellamy v. Commonwealth
Decision Date | 01 May 2012 |
Docket Number | Record No. 0199–11–1. |
Citation | 60 Va.App. 125,724 S.E.2d 232 |
Parties | Michael Junior BELLAMY v. COMMONWEALTH of Virginia. |
Court | Virginia Court of Appeals |
OPINION TEXT STARTS HERE
J. Barry McCracken, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Katherine Quinlan Adelfio, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Present: FELTON, C.J., and PETTY and BEALES, JJ.
Michael Junior Bellamy (“appellant”) was convicted by the Circuit Court of the City of Norfolk (“trial court”) of possession of ammunition by a convicted felon in violation of Code § 18.2–308.2. On appeal, appellant contends that the trial court erred in denying his motion to suppress evidence found during a search incident to his arrest, arguing that he was unlawfully arrested based on erroneous information supplied to the arresting officer by a police dispatcher. For the following reasons, we affirm the judgment of the trial court.
On March 15, 2010, Norfolk Police Officer J.L. Hall was dispatched to answer a 911 domestic violence call at appellant's residence “between a father and a son.” When he arrived at the residence, Officer Hall met appellant's adult stepson standing at the front door. After speaking with appellant and appellant's adult stepson, Officer Hall testified that there appeared to be no ongoing dispute between the two men. Immediately after Officer Hall left the residence and walked toward his vehicle, the two men came to the door of the residence, yelling at each other and wrestling over a lamp as each was trying to strike the other with it. Officer Hall separated the two men and obtained their full names, dates of birth, and social security numbers which he relayed to a police dispatcher. The dispatcher informed Officer Hall that there was an outstanding arrest warrant for appellant, but did not provide any further information concerning the warrant.
On receipt of this information, Officer Hall “placed [appellant] into custody” pursuant to the reported outstanding arrest warrant. Prior to searching appellant incident to the arrest, Officer Hall testified that he 1 Officer Hall removed the marijuana from appellant's pocket. He also recovered an unused .22 caliber bullet from appellant's pocket.
After Officer Hall placed appellant in the rear of the police car, he radioed the Norfolk Police Warrant Office to verify the contents of the arrest warrant.2 A warrant office staff member advised Officer Hall that the arrest warrant reported by the police dispatcher had previously been served on appellant.
The Commonwealth indicted appellant for possession of ammunition by a convicted felon in violation of Code § 18.2–308.2(D). After a hearing on appellant's suppression motion, the trial court denied the motion relying on Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009):
I think this is controlled by Herring. And the danger I can see in adopting [appellant's] position ... which I don't think it's constitutional, but rather of police policy, if the policeman is there on his radio and he gets back from [the] dispatcher that there's a warrant on file and he doesn't do anything, then he has to double check with a warrant office, there's a chance, not this defendant in particular, but a defendant may escape. A defendant may get violent when he finds out there's a warrant on file and attacks [sic] the officer.
Appellant was thereafter convicted by a jury of possession of ammunition by a felon. This appeal followed.3 For the following reasons, we affirm appellant's conviction.
On appeal, appellant argues that the trial court erred in denying his motion to suppress evidence of the bullet found in his pocket. Specifically, he asserts that Officer Hall violated his Fourth Amendment right against unlawful search and seizure by arresting him and searching him incident to that arrest based on erroneous information received from the police dispatcher. He argues Officer Hall should have first contacted the warrant office to verify the existence of the arrest warrant prior to arresting and searching him.4 He asserts that the evidence found by Officer Hall pursuant to that search must be excluded as evidence at trial under the Fourth Amendment exclusionary rule.
“In reviewing the denial of a motion to suppress evidence claiming a violation of a person's Fourth Amendment rights, we consider the facts in the light most favorable to the Commonwealth, the prevailing party at trial.” Malbrough v. Commonwealth, 275 Va. 163, 168–69, 655 S.E.2d 1, 3 (2008). An appellate court should “ ‘give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.’ ” Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27 (2000) (quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). “[A] defendant's claim that evidence was seized in violation of the Fourth Amendment presents a mixed question of law and fact that we review de novo on appeal.” King v. Commonwealth, 49 Va.App. 717, 720, 644 S.E.2d 391, 392 (2007) (citing Ornelas, 517 U.S. at 691, 116 S.Ct. at 1659).
The Fourth Amendment protects “ ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ ” Arizona v. Evans, 514 U.S. 1, 10, 115 S.Ct. 1185, 1191, 131 L.Ed.2d 34 (1995) ). “Local law enforcement personnel are subject to the requirements of the Fourth Amendment under the due process clause of the Fourteenth Amendment.” Lowe v. Commonwealth, 230 Va. 346, 348 n. 1, 337 S.E.2d 273, 274 n. 1 (1985) (citing Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961)).
The Fourth Amendment exclusionary rule “ ‘prevents evidence obtained in violation of the [F]ourth [A]mendment from being used against an accused.’ ” Redmond v. Commonwealth, 57 Va.App. 254, 261, 701 S.E.2d 81, 84 (2010) (quoting Commonwealth v. Ealy, 12 Va.App. 744, 750, 407 S.E.2d 681, 685 (1991)).
The Fourth Amendment exclusionary rule was first announced by the Supreme Court in Weeks v. United States, 232 U.S. 383 [34 S.Ct. 341, 58 L.Ed. 652] (1914). It was applied to the States in Mapp v. Ohio, 367 U.S. 643 [81 S.Ct. 1684, 6 L.Ed.2d 1081] (1961). Mapp described the exclusionary rule as a judicially implied, yet constitutionally required, “deterrent safeguard without insistence upon which the Fourth Amendment would have been reduced to ‘a form of words.’ ” Id. at 648 (quoting Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 [40 S.Ct. 182, 183, 64 L.Ed. 319] (1920) (Holmes, J.)).... [T]he deterrence ground ... is now firmly established as the primary, if not sole reason, for the exclusionary rule. See Stone v. Powell, 428 U.S. 465 [96 S.Ct. 3037, 49 L.Ed.2d 1067] (1976); United States v. Janis, 428 U.S. 433 [96 S.Ct. 3021, 49 L.Ed.2d 1046] (1976); United States v. Calandra, 414 U.S. 338 [94 S.Ct. 613, 38 L.Ed.2d 561] (1974).
County of Henrico v. Ehlers, 237 Va. 594, 602, 379 S.E.2d 457, 461 (1989).
The exclusionary rule only applies where it “ ‘result[s] in appreciable deterrence’ ” of unlawful police conduct. United States v. Leon, 468 U.S. 897, 909, 104 S.Ct. 3405, 3413, 82 L.Ed.2d 677 (1984) (quoting Janis, 428 U.S. at 454, 96 S.Ct. at 3032).
United States v. Peltier, 422 U.S. 531, 539, 95 S.Ct. 2313, 2318, 45 L.Ed.2d 374 (1975) (quoting Michigan v. Tucker, 417 U.S. 433, 447, 94 S.Ct. 2357, 2365, 41 L.Ed.2d 182 (1974)). The United States Supreme Court has repeatedly reiterated the deterrent element of the exclusionary rule.
” Leon, [468 U.S. at] 919–20 (quoting Stone, [428 U.S.] at 539–40 (White, J., dissenting)).
Evans, 514 U.S. at 11–12, 115 S.Ct. at 1191–92. Most recently in Herring, the Supreme Court further discussed the deterrent element of the exclusionary rule.
To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.
Herring, 555 U.S. at 144, 129 S.Ct. at 702.
Here, the exclusionary rule does not require suppression of the evidence found during the search incident to arrest of appellant. Officer Hall was objectively reasonable in relying on the dispatcher's report that there was an outstanding warrant for appellant.5 Once Officer Hall received information from the dispatcher that there was an outstanding warrant for appellant's arrest, he was objectively reasonable in...
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...States v. Peltier, 422 U.S. 531, 542, 95 S.Ct. 2313, 2320, 45 L.Ed.2d 374 (1975)). As this Court recently held in Bellamy v. Commonwealth, 60 Va.App. 125, 724 S.E.2d 232 (2012), “[w]hen police err in the manner presented in this record, which is not ‘systemic error or reckless disregard of ......
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...at 1687–88 ; see also, e.g., County of Henrico v. Ehlers, 237 Va. 594, 602, 379 S.E.2d 457, 461 (1989) ; Bellamy v. Commonwealth, 60 Va.App. 125, 130, 724 S.E.2d 232, 235 (2012). Nowhere in appellant's “Motion, Memorandum and Notice to Suppress Pursuant to Va.Code § 19.2–266.2 ” did appella......