Beverly v. Commonwealth
| Decision Date | 12 April 2022 |
| Docket Number | 0725-21-3 |
| Parties | CHARITY ELIZABETH BEVERLY v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY Christopher B Russell, Judge
Tyler M. Jerrell, Assistant Public Defender, for appellant.
Leanna C. Minix, Assistant Attorney General (Mark R. Herring [1] Attorney General, on brief), for appellee.
Present: Judges Huff, Athey and Friedman Argued by videoconference
Charity Elizabeth Beverly ("Ms. Beverly") appeals the circuit court's denial of her motion to suppress evidence. She also appeals the sufficiency of the evidence supporting her conviction under Code § 18.2-250 . We conclude that the warrant authorizing the search of Ms Beverly's home was defective and the "protective sweep" initiated by the officers prior to obtaining the warrant was improper. However, upon reviewing the record and briefs of the parties, we determine that we are required to affirm the circuit court's denial of Ms. Beverly's motion to suppress. We also find that the evidence was sufficient to support her conviction.
We review the facts in the light most favorable to the prevailing party below. Long v. Commonwealth, 72 Va.App. 700, 705 (2021); Bryant v. Commonwealth, 7 2 Va.App. 179, 182 (2020).
Detective Buzzard received information that a wanted person, Paul Price, was located at a house in Buena Vista. Mr. Price was known by police officers for his methamphetamine use and distribution. Five officers arrived at the house. Detective Buzzard, Deputy Wade, and Sergeant Sorrells went to the back door of the home and knocked, at which point another individual, Jose Colazo, opened the back door. Detective Buzzard spoke with Mr. Colazo in the doorway about why the officers were there, and testified that "while speaking to [Mr. Colazo, ] there was a strong odor of burnt marijuana coming from his person." Detective Buzzard asked Mr Colazo to come out onto the porch. Mr. Colazo complied without incident. Mr. Colazo was detained.
Detective Buzzard then yelled into the house f or Mr. Price to come out. Mr. Price yelled that he was coming out, and he then exited through the back door to meet the detective. He was put into "custody after he exited the residence." Detective Buzzard advised Mr. Colazo that the officers would be obtaining a search warrant because of the "odor of marijuana."
Detective Buzzard was the only officer to testify for the Commonwealth regarding the events surrounding the search. Detective Buzzard repeatedly testified that the odor of marijuana he smelled came from Mr. Colazo's person, rather than from inside the home. Detective Buzzard stated on five separate occasions that the scent of burnt marijuana came from Mr. Colazo's person. At no time did the Commonwealth's only witness from the scene of the search, Detective Buzzard, state that he smelled marijuana emanating from the residence itself.
At this point, there were at least five officers on the scene. Mr. Price had been apprehended, and both he and Mr. Colazo were cooperating:
Three officers, including Detective Buzzard, then entered the home to perform what Detective Buzzard called a "protective sweep" of the house, explaining the officers were checking to make sure there were not more people in the residence before two of the five officers left the scene to obtain a search warrant.[2]
Detective Buzzard, Deputy Wade and Sergeant Sorrells were the officers who entered the home to perform the "protective sweep." Detective Buzzard announced himself and asked anyone there to come out. As they went through the kitchen, Detective Buzzard observed the appellant, Ms. Beverly, coming down the stairs from her home's second floor. When she reached the ground level, Detective Buzzard smelled the strong odor of burnt marijuana on her person. She was then detained, though not yet arrested, and held outside the residence.
After about thirty minutes of keeping Ms. Beverly outside, the warrant was obtained. Detective Buzzard stated that he apprised Detective Smith of the basis for the affidavit seeking a warrant.
Detective Buzzard also indicated that he believed that Smith had left to get the warrant before the sweep was completed.
The affidavit for the search warrant stated:
Ms. Beverly contends the affidavit relies on information obtained during the "protective sweep" including her name and residence, as well as reference to alleged odors emanating from "within" the house.
After obtaining the warrant, Detective Buzzard, Detective Smith, and Investigator Flint searched the home. In the first bedroom they searched, they discovered a marijuana cigarette and a syringe. In the second bedroom, they found a glass smoking device under the bed, a glass smoking device in a black eyeglasses case on top of a dresser, and a clear baggie of a crystal-like substance (later confirmed to be methamphetamine) sitting on top of a space heater, in plain view. In the same room, they observed court papers, bills, and envelopes with Ms. Beverly's name on them. In the basement they found a glass smoking device and a plastic container with a clear plastic baggie holding three pills. They then put Ms. Beverly and Mr. Colazo under arrest.
Ms Beverly moved to suppress the evidence obtained, arguing that the initial search associated with the "protective sweep" was illegal and the incriminating evidence was discovered because of the illegal search. The parties presented the issue of suppression before the circuit court; the only witness from the scene to testify was Detective Buzzard.
The circuit court ruled that the search warrant was defective and explained that the affidavit the officers used to obtain the warrant stated the smell of marijuana was coming from the home (rather than from the person of Mr. Colazo or Ms. Beverly) which was contrary to the evidence presented. In deciding the warrant was defective the circuit court also questioned how the officers knew Ms. Beverly's name before putting it on the affidavit, and how or when the officers learned she owned the residence.
The circuit court also found that there were no exigent circumstances permitting a protective sweep. However, the court still found that exclusion of the evidence was not required because the officers had a right to act in "good faith" in objectively reasonable reliance on the warrant. The court concluded that "when a judicial officer, in this case a magistrate, issues a warrant, police are entitled to rely on it" unless the factors set out in United States v. Leon, 468 U.S. 897 (1984), and McCary v. Commonwealth, 228 Va. 219 (1984), are met. The court made specific findings that these factors were not met in this case.
Of particular relevance, the court made the findings that the magistrate was not intentionally misled by information the affiant knew or should have known was false, and it further concluded that the affiant did not exhibit reckless disregard for the truth. The court further found that the misunderstanding as to whether the odor of marijuana came from Mr. Colazo's person or emanated from the residence was explained by the fact that Mr. Colazo was in the doorway of the home when police encountered him. Thus, the court found the information in the affidavit derived from the initial contact with Mr. Colazo-not the subsequent "sweep." The court concluded: "notwithstanding a defective search warrant" the evidence found by police in their search...
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