Blair v. Com.

• Decision Date: 17 June 1983
• Docket Number: No. 821011,821011
• Citation: 225 Va. 483,303 S.E.2d 881
• Parties: William Edward BLAIR v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 881

303 S.E.2d 881

225 Va. 483

William Edward BLAIR v. COMMONWEALTH of Virginia.

Record No. 821011.

Supreme Court of Virginia.

June 17, 1983.

Ralph E. Main, Jr., Charlottesville, for appellant.

Robert H. Anderson, III, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON and RUSSELL, JJ.

COCHRAN, Justice.

In a jury trial under indictments charging grand larceny and breaking and entering with the intent to commit larceny, William Edward Blair was found guilty as charged. The jury fixed his punishment at confinement in the penitentiary for seven years for each offense and the trial court entered judgment on the verdict. On appeal, the question presented is whether the trial court erred in admitting in evidence, over Blair's objection, a certain gold necklace or chain. ¹

Blair challenges the admissibility of the chain on two grounds. He says the trial court erred in overruling his motion to suppress the chain as the product of an unconstitutional search that exceeded the scope of the search warrant. Furthermore, he argues that the Commonwealth failed to identify the chain as a fruit of the Madison County crimes with which he was charged.

Details of the search were described at the pretrial hearing conducted by the trial court on Blair's motion to suppress evidence. A search warrant was issued by a magistrate in the City of Roanoke on September 18, 1980, at 8:45 p.m. to search "1601 9th St., S.E. also known as Blair's Auto Sales," for one "partial sheet of U.S. Dimes." J.R. Treynor, an investigator in the Sheriff's Department of Botetourt County, had executed the affidavit supporting the search warrant. The affiant based his belief that the coin collection could be found on the described premises upon information furnished by an informer who reported he was present when the burglary was committed and saw the collection "placed in the building" to be searched. The affidavit stated that the search was related to offenses of statutory burglary and grand larceny committed in Giles County on August 17, 1980, when the coin collection was stolen by the informer and others. During the hearing, the informer was identified as Charles Hunnell, a co-defendant. The affiant testified that before executing the affidavit he viewed the building, saw a business sign on the side of it, was unaware that the structure contained an apartment, and intended to obtain a warrant to search the entire building. He further testified that Hunnell said there was much stolen property in the building but could specify only the place from which the coin collection had been taken.

Approximately six to eight police officers from various jurisdictions proceeded to carry out the search on the evening of September 18. The building was a free-standing two-story brick structure located at the corner of 9th Street and Morehead Avenue. The officers entered through a door on 9th Street next to a garage bay door. There were three large rooms, the first being the garage area in which a car was parked. Behind this area was an office; behind the office and up one or two steps was a storage room. Search of the office failed to reveal the sheet of coins. However, in a trash can in the office the officers found what appeared to be the plastic cover off a sheet of coins. Investigator B.R. Kelly testified that he remembered the "clear, plastic cover" in the trash can, that there "may well have been a holder there for coins," but there "weren't any coins there." Accordingly, the officers continued their search.

They found in the parked vehicle a "C.B. radio," a "walkie-talkie," two crowbars, wirecutters, gloves, a screwdriver, and .38 caliber ammunition. In a pillowcase in the trunk of the car were sterling silver articles, including salt and pepper shakers, a candelabra, two candle holders, and a candy dish. Two pillowcases were in the office; one contained many lapel pins, tie tacks, rings, cufflinks, and similar items, and military identification tags of an individual in Danville named Robertson. The officers, concluding that all this personal property had probably been stolen, seized it.

Having completed their search on the ground floor without finding the dimes, the officers decided, after discussion, that the warrant authorized them to search the entire building, including the upstairs. Having observed that an inside stairway leading to the second floor had been sealed off, they went around the corner and saw a large Blair's Auto Sales sign, similar to the one on 9th Street, no more than a foot to the left of an entrance door on Morehead Avenue. There were garage bay doors on either side of the entrance door; the officers did not see any street number. Carl Wells, Sheriff of Bedford County, recalled that "it was all one building as far as we could determine." Blair, testifying in support of his motion to suppress, said that the sign on the Morehead Avenue side was made of plywood, was four feet by four feet in size, had painted on it "Blair's Auto Sales, 1601 9th Street," and was nailed to the brick wall.

After prying open the side door, the officers went upstairs into what appeared to be an apartment and continued their search. They found and seized a "quantity of sterling silver," a collection of pocket knives, a set of scales, weapons, coins, jewelry, rings, and necklaces. They did not find the sheet of coins. Upon securing the entrance door at the conclusion of their search, the officers for the first time saw over the door a metal street number painted the same color as the "facing and everything else." There was evidence that the apartment was Blair's, that he used it occasionally, but resided with his wife at another location, that other male business associates, including Hunnell, had access to and used it, that the telephone number was the same as the business telephone on the first floor, and that the city directory listed the address, 813 Morehead Avenue, as Blair's Auto Sales. Utility services for the apartment were billed in the name of Blair's Auto Sales.

The articles seized during the search, 622 in number, were inventoried at the time of seizure and subsequently displayed at the Botetourt County Sheriff's office, where victims of larcenies were given the opportunity to examine them and establish claims to ownership. A gold chain found in the search was identified as belonging to Linda Hawkins, of Madison County. The officers could not say whether this jewelry had been discovered downstairs or upstairs during their search of Blair's building.

At trial, Mrs. Hawkins testified that her home had been broken into on Easter Sunday, April 6, 1980, while she and her family were at church. Personal property of a value estimated at $5,300 to $8,600 was stolen. One missing article was a gold chain necklace of hers which had been removed from her jewelry box. She testified that the gold chain seized in the search was "exactly like" that one, having the identical serpentine design and also being broken, as hers was at the time it was taken.

Hunnell, testifying as a witness for the Commonwealth, said that in early 1980 he, Blair, and Blair's brother, Lynn Walker, agreed that they would break into residences, steal valuables, and convert them into cash with which they would buy used cars to repair and resell as if they were engaged in a legitimate profitable business enterprise. Pursuant to this agreement, according to Hunnell, later that year the three of them left Roanoke early on Easter morning, broke into houses in Culpeper, Madison, and Greene Counties, including the Hawkins's residence, stole jewelry and other personal property, and returned with their loot to Blair's Auto Sales.

Blair contends that the officers had no authority to search the upstairs apartment. He says that since the evidence does not show whether the gold chain was found in the lower or upper level of the building the search of both areas must be considered. Relying on Manley v. Commonwealth, 211 Va. 146, 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S.Ct. 2245, 29 L.Ed.2d 716 (1971), Blair argues that the description in the warrant of the premises to be searched precluded search of the second floor of the building.

In Manley, we acknowledged that under the Constitution of the United States and our statutory law a search warrant must describe with specificity the premises to be searched. "All that is required, however, is that the description be such that the officer ... can, with reasonable effort, ascertain and identify the place intended." Id. 211 Va. at 151, 176 S.E.2d at 314. We held valid the search warrant giving the address of the apartment building and the name of the occupant whose apartment was to be searched. Id. at 152, 176 S.E.2d at 314. See also Robinson v. Commonwealth, 219 Va. 520, 248 S.E.2d 786 (1978).

In ruling the search to be valid in the present case, the trial judge stated that from the evidence "everything about the building indicated it was Blair's Auto Sales and ... this was one building in the eyes of the officers and reasonably so." We cannot say as a matter of law that this ruling was incorrect. The entire building was Blair's; the street number on Morehead Avenue, which was not seen by the officers prior to the search, was painted over in a manner suggesting that it was not in use; a business sign was immediately adjacent to the Morehead Avenue entrance; there were garage doors on each side of that entrance; both levels of the building had the same telephone number; utility services for both levels were billed to the business; and the city directory listed the Morehead Avenue address as...