Brown v. Com.

• Decision Date: 01 September 1992
• Docket Number: No. 0627-89-2,0627-89-2
• Citation: 421 S.E.2d 877,15 Va.App. 1
• Parties: William Edward BROWN v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 877

421 S.E.2d 877

15 Va.App. 1

William Edward BROWN v. COMMONWEALTH of Virginia.

Record No. 0627-89-2.

Court of Appeals of Virginia.

Sept. 1, 1992.

Thomas H. Tomlin, Heathsville, for appellant.

Michael T. Judge, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., David A. Rosenberg, Asst. Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., BAKER, BARROW, BENTON, COLEMAN, DUFF, MOON, WILLIS, ELDER and BRAY, JJ.

UPON REHEARING EN BANC OPINION

JOSEPH E. BAKER, Judge.

A rehearing en banc was granted in this appeal from a decision of a panel in which there was a dissent.

William Edward Brown (appellant) appealed from his bench trial convictions by the Circuit Court of Westmoreland County for possession of cocaine with the intent to distribute and for possession of drug paraphernalia. In his petition for appeal, he argued that: (1) probable cause did not exist for the warrantless search of the automobile he used; and (2) he did not knowingly and intentionally possess cocaine with the intent to distribute or possess drug paraphernalia. He was granted an appeal based on those issues and a divided panel of three members of this Court reversed his conviction, holding that the evidence failed to prove that he knowingly possessed the cocaine and drug paraphernalia. ¹ The majority did not decide the warrantless search issue. The Commonwealth's petition for a rehearing en banc was granted upon the same issues presented in appellant's original petition and brief before the panel.

In his brief filed in response to the Commonwealth's en banc brief, appellant raises the identical issues contained in his petition for appeal. He also argues in his brief that a rehearing en banc, granted at the request of the Commonwealth, constitutes an appeal by the Commonwealth prohibited by the Virginia Constitution. Finding no error, we affirm the judgment of the trial court.

On appeal, whether on the initial appeal or on rehearing from that initial appeal, we view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). "The inferences to be drawn from [the] proved facts are within the province of the [trial] court trying the case without a jury, so long as the inferences are reasonable and justified." Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963). When the matter is heard by the trial judge sitting without a jury, "the judgment ... is entitled to the same weight as a jury verdict and will not be disturbed [on appeal] unless plainly wrong or without evidence to support it." Evans v. Commonwealth, 215 Va. 609, 613, 212 S.E.2d 268, 271 (1975); Code § 8.01-680.

The investigation out of which appellant's arrest was made resulted from an ongoing effort on the part of state and county police officers to detect and prosecute persons involved in illegal drug activities at a place known as Burton's Disco located in Westmoreland County. As a result of information concerning those activities, supplied to the police by a reliable informant, state and county officers, over a period of several months, made arrests at Burton's of persons engaged in the illegal sale of drugs.

Immediately prior to appellant's arrest on October 27, 1988, the informant supplied the officers with further information concerning continued illegal drug activity at Burton's. Because the informant's information had proved reliable in the past, on the night of October 27, 1988, Virginia State Police Special Agent Baines and several Westmoreland County Sheriff's Deputies assembled in Warsaw for the purpose of making controlled purchases and a raid at Burton's. The informant advised them that three "target vehicles" would be on Burton's parking lot and described them as a red pickup truck, a red and white Nova and a brown Pinto.

Before the police raiding party moved to Burton's, the informant agreed to participate in attempts to make controlled purchases of drugs. He was wired with a body transmitter and assigned to work with an undercover agent. The police proceeded to Burton's parking lot and made several arrests. The raiding party brought with them Officer Vernon Jones, an experienced dog handler, and a narcotics dog trained to "sniff out" drugs such as cocaine, heroin and marijuana.

Westmoreland County Chief Deputy Sheriff Larry Thrift was the first officer to confront appellant. Thrift referred to the action being taken as a drug raid. Prior to confronting appellant, Thrift was concentrating more on people than on vehicles. He had heard appellant's name mentioned over a state police radio, and apparently knew appellant by the nickname "Sonny." Thrift went to the location of the Pinto and saw appellant walking toward that vehicle from the direction of Burton's. Thrift knew that a number of people had been arrested that night in the raid and that "appellant was one of the ones that could be implicated." The brown Pinto was parked about thirty feet from where Thrift first sighted appellant walking toward it. The driver's door was open and the motor was running. Appellant asked Thrift if he could enter the Pinto and turn off the motor. Thrift told him that he would prefer that appellant wait for the investigating officer, apparently meaning Special Agent Baines.

When Officer Sydnor arrived at the Pinto, Thrift told him what had transpired to that point. Sydnor passed information to Baines that appellant wanted to go "to his car," meaning the Pinto.

Baines had a receiver that enabled him to hear part of a conversation taking place between the informant and an undercover agent. Baines heard the informant say, "Be sure to check on the brown Pinto." Baines knew this to be one of the "target vehicles" and he then "centered" on that car. When Baines reached the Pinto, he advised appellant of the purpose of the police investigation and asked permission to search the Pinto. When permission was not given, he called for Officer Jones and the trained canine.

Jones testified that normally the dog handler and the dog circle the item to be searched and then the dog moves to the location of the drugs, if any are present. In this case, the dog and its handler started at the front of the vehicle but when the dog arrived at the open door it leaped inside and alerted on a section under the driver's seat. The dog was removed from the car, rewarded with praise and released to inquire further. The dog then alerted on a change purse on the dashboard. Baines then entered the car and discovered drug paraphernalia and drugs under the driver's seat where the dog had first alerted. Baines then looked inside the change purse and found sixteen grams of cocaine. He also found a black zippered bag on the back floorboard which contained fourteen plastic bags with cocaine residue. Baines arrested appellant, searched him and found a total of $1,070.69 cash located in three different places on appellant's person.

Appellant stated he had been at the lot approximately one hour before the police arrived, and that he had driven the Pinto to the lot with a couple of friends whom he refused to name. Appellant further stated that the Pinto belonged to his "old lady" with whom he was living. Appellant also stated that "the dope ain't mine," that no one else had driven the car that night, and that he could not explain the presence of the items in the car. He acknowledged that he had used cocaine "once" but that had been "a while" ago and that he knew the appearance of cocaine.

I. Search of the Automobile ²

The Fourth Amendment "protects people from unreasonable government intrusions [of] their legitimate expectations of privacy." United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977). A reasonable expectation of privacy did not extend to the airspace surrounding appellant's vehicle, and reasonable and articulable suspicion is not required before the police may use a canine trained in drug detection to sniff the air about an enclosure believed to contain drugs. See United States v. Lovell, 849 F.2d 910, 913 (5th Cir.1988). Nothing in the Fourth Amendment prohibits a law enforcement officer from using trained canines to augment the sensory faculties bestowed on the officer at birth. United States v. Lewis, 708 F.2d 1078, 1080 (6th Cir.1983) (citations omitted). In Lewis, the Court rejected Lewis' contention that probable cause must be shown and a warrant procured as a condition precedent to trained canine sniffing:

The odor emanating from even a closed object is accessible to the public foreclosing an expectation of privacy even though the owner has taken steps to shield his property within the closed container from perception by other senses, such as sight.

Id. In People v. Mayberry, 31 Cal.3d 335, 342, 644 P.2d 810, 814, 182 Cal.Rptr. 617, 621 (1982), the California Supreme Court observed:

In our view, the escaping smell of contraband from luggage may be likened to the emanation of a fluid leaking from a container. The odor is detectable by the nose, as the leak is visible to the eye. We discern no constitutionally significant difference in the manner of escape, and conclude that any privacy right is lost when either escapes into the surrounding area.

In Mayberry, the police had no specific information concerning the defendant when the dog sniffed her luggage which was in the baggage area. See also People v. Dunn, 155 A.D.2d 75, 553 N.Y.S.2d 257 (1990), cert. denied, 501 U.S. 1219, 111 S.Ct. 2830, 115 L.Ed.2d 1000 (1991) (holding that a narcotics dog's sniff of drugs in the hallway outside defendant's apartment did not constitute a search within the meaning of the Fourth Amendment). The New York Court quoted with approval the following from Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967):

What a person knowingly exposes to the public, even in his own home or...