Carlson v. Commonwealth

• Citation: 823 S.E.2d 28,69 Va.App. 749
• Decision Date: 12 February 2019
• Docket Number: Record No. 2058-17-1
• Court: Court of Appeals of Virginia
• Parties: Ian Christian CARLSON v. COMMONWEALTH of Virginia

69 Va.App. 749

823 S.E.2d 28

Ian Christian CARLSON

v.COMMONWEALTH of Virginia

Record No. 2058-17-1

Court of Appeals of Virginia, Norfolk.

FEBRUARY 12, 2019

Erik A. Mussoni, Assistant Public Defender, for appellant.

A. Anne Lloyd, Assistant Attorney General (Mark R. Herring, Attorney General; Elizabeth Kiernan Fitzgerald, Assistant Attorney General, on brief), for appellee.

Present: Judges Huff,^* AtLee and Senior Judge Frank

OPINION BY JUDGE RICHARD Y. ATLEE, JR.

Ian Christian Carlson appeals his convictions for manufacturing marijuana in violation of Code § 18.2-248.1 and misdemeanor obstruction of justice for using a police radio during the commission of a crime in violation of Code § 18.2-462.1. Carlson argues that the trial court erred in denying his motion to suppress evidence obtained as a result of an unlawful search of his residence. He also argues that the evidence was insufficient to convict him of manufacturing marijuana. We agree the trial court should have granted Carlson's motion to suppress, and we now reverse the trial court.

I. BACKGROUND

Officers Matt Elliot and Aaron Gosnell responded to a call at a trailer park on the 2700 block of Ike Street in Chesapeake. When the officers parked and got out of their vehicles at the scene, they immediately noticed a strong odor of marijuana. The officers responded to the original, unrelated call and then attempted to locate the source of the marijuana smell. The officers walked around each trailer, sniffing at the doors and windows, in an attempt to localize the odor to a particular trailer. Each trailer was situated approximately ten to fifteen feet apart. As the officers walked towards trailer 65, Carlson's residence, the officers noticed that the smell was getting stronger.

Carlson's trailer is located at a T-intersection. The officers walked around a van parked at the curb in front of the trailer and onto Carlson's property. Carlson's trailer is set twenty-two feet from the curb, and the front door is thirty-six feet from the curb. As they had done at each of the other trailers, the officers sniffed the doors and windows. After sniffing the doors and windows, "it became obvious" to the officers that the odor was coming from Carlson's trailer.

The officers notified their sergeant and then contacted Vice and Narcotics. The sergeant ordered the officers to "make contact" with the trailer. Accordingly, the officers knocked on the door and announced themselves as police officers. No one answered the door, but the officers heard a radio or television turn off. At some point, the blinds flickered up and down. The officers secured the premises and waited for backup to arrive.

In response to the officers' call, Detective Cusumano from Vice and Narcotics arrived approximately one hour later. At trial, Detective Cusumano testified that he was called to assist with a trailer that smelled of marijuana. When he arrived, he saw other police units on scene. The detective walked up to the main entrance of Carlson's trailer and smelled raw marijuana emanating from the edges of the door. He did not go anywhere else on the property before he left to obtain a warrant. The affidavit attached to the warrant indicated that uniform patrol was on scene, but contained only the detective's observations.²

When the police executed the search warrant, Carlson refused to come out of the trailer and a lengthy standoff ensued. Eventually, a SWAT team made entry, and Carlson ran out the back of the trailer before ultimately being arrested.

Inside the trailer, law enforcement discovered a grow operation. The trailer was outfitted with ventilation, heat lamps, and other equipment necessary to grow marijuana. Officers found approximately 176 marijuana plants at various stages of growth and a garbage bag of marijuana apparently trimmed off of the plants. In the bathroom, officers discovered marijuana leaves in and around the toilet and an envelope full of cash in various denominations. Elsewhere in the trailer, officers discovered an AK-47, various boxes of ammunition, a digital scale, and a device used to smoke marijuana. Additionally, officers discovered a police scanner that was tuned to the same channel the police were using to communicate during the investigation, and the officers inside could hear radio communication from officers still outside.

Carlson filed a pretrial motion to suppress the evidence from the trailer arguing that the officers' initial entry onto his property was unlawful. Carlson did not challenge the warrant itself, rather he argued that Detective Cusumano's presence on the property was a direct result of the officers' unlawful search. At the suppression hearing, both Officers Elliot and Gosnell testified and openly admitted to sniffing around the windows and doors of the trailers, including Carlson's. Officer Elliot testified that that when they "got to 65" they could tell the marijuana odor was coming from that particular trailer.

When asked if "got to 65" meant "sniffing the doors and windows" of trailer 65, Officer Elliot said yes. He also agreed that it was when they "walked up to the door" that they "were able to centralize the odor." Officer Gosnell testified that the marijuana smell got stronger as they walked towards trailer 65, "but [they] had still not centralized it to that trailer itself." Further, Gosnell testified it was "while in the curtilage of the property ... it became increasingly strong," and only then were they "beginning to believe that this may be it." The trial court requested supplemental briefing on the issue.

Carlson argued that the search was unlawful and that the search pursuant to the warrant, based upon Detective Cusumano's observations, was not sufficiently attenuated from the unlawful search. Carlson also argued that Detective Cusumano was not an independent source. The Commonwealth responded that the officers' search was lawful, Detective Cusumano was an independent source, and, regardless, Carlson failed to challenge the warrant.

At a second hearing on the issue, the trial court determined the officers had "overstepped their boundary" and that the search was unlawful. After further argument on the independent source doctrine, the trial court determined it was a "close call" but overruled the motion because "[w]e did have a warrant." The trial court denied Carlson's motion to reconsider.

At trial, the Commonwealth's expert, Detective Barlow, testified that the amount of marijuana found was inconsistent with personal use. He estimated that the potential yield (under optimal conditions) was forty-four pounds of marijuana. Even if not all of the plants would bud or mature, Detective Barlow estimated a low yield street value of $20,000. He further testified that those involved in the drug trade often carry firearms to protect themselves from robbery.

Carlson moved to strike, arguing that the Commonwealth had not provided sufficient evidence that the marijuana was manufactured for distribution rather than his own personal use. The trial court denied the motion.

Carlson then testified on his own behalf. He testified that he used the marijuana for pain management of his sleep apnea and scoliosis and that he needed such a large quantity of plants because he was not sure how many would survive and produce buds. Further, he explained that the AK-47 was for personal protection, and the cash, which was found in a bank envelope, was used to pay his bills since, in his condition, he was unable to drive to his bank when necessary. He also testified that the digital scale was for his coin collection. After his testimony, Carlson renewed his motion to strike, which the trial court denied. Ultimately, Carlson was convicted and sentenced. Carlson timely noted his appeal to this Court.

II. ANALYSIS

A. Motion to Suppress

Carlson argues on appeal that the trial court erred in denying his motion to suppress evidence. He argues that the evidence obtained pursuant to the search warrant was tainted by the officers' initial unlawful entry onto the curtilage of his property.³ We agree.

"On appeal of the denial of a motion to suppress, we view the evidence in the light most favorable to the Commonwealth."

McCracken v. Commonwealth, 39 Va. App. 254, 258, 572 S.E.2d 493 (2002). Our review includes "evidence adduced at both the trial and the suppression hearing." Greene v. Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138 (1994). We give deference to the trial court's factual findings and review de novo the application of law to those facts. Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836 (2002). Carlson has the burden to show that the denial of his suppression motion was reversible error. Commonwealth v. Robertson, 275 Va. 559, 564, 659 S.E.2d 321 (2008).

The Fourth Amendment protects individuals against unreasonable searches and seizures. U.S. Const. amend. IV. If, as here, the trial court determines a search was conducted in violation of the Fourth Amendment,⁴ the evidence is subject to the exclusionary rule, which prohibits the introduction of evidence, tangible or testimonial, acquired during an unlawful search. Murray v. United States, 487 U.S. 533, 536, 108 S.Ct. 2529, 2533, 101 L.Ed.2d 472 (1988). The exclusionary rule also prohibits "derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search." Id. at 536-37, 108 S.Ct. at 2533 (quoting Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939) ). The "prohibition of derivative evidence is the essence of the ‘fruit of the poisonous tree’ doctrine." Commonwealth v. Ealy, 12 Va. App. 744, 754, 407 S.E.2d 681 (1991).

Nevertheless, "simply because [evidence] would not have come to light but for the illegal actions of the police" does not mean that the evidence is automatically excluded. Fitchett v. Commonwealth, 56 Va. App. 741, 746, 697 S.E.2d 28 (2010) (quoting Wong Sun v....