Cherry v. Com.

• Citation: 605 S.E.2d 297,44 Va. App. 347
• Decision Date: 23 November 2004
• Docket Number: Record No. 2439-03-1.
• Court: Court of Appeals of Virginia
• Parties: Carlton Harden CHERRY v. COMMONWEALTH of Virginia.

605 S.E.2d 297

44 Va. App. 347

Carlton Harden CHERRY v. COMMONWEALTH of Virginia.

Record No. 2439-03-1.

Court of Appeals of Virginia, Chesapeake.

November 23, 2004.

Joseph R. Winston, Special Appellate Counsel (Felipita Athanas; Indigent Defense Commission, on briefs), for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., ELDER and ANNUNZIATA, JJ.

LARRY G. ELDER, Judge.

Carlton Harden Cherry (appellant) appeals from his bench trial conviction for possession of cocaine. On appeal, he contends the trial court erroneously admitted into evidence the cocaine providing the basis for his arrest and conviction because it was discovered pursuant to a warrantless entry of his residence. We hold that when an officer comes to the door of a residence to investigate a non-drug-related crime, smells the odor of burning marijuana when an occupant voluntarily answers the door, and hears significant movement inside the house after the occupant calls out to those inside that the police are at the door, probable cause and exigent circumstances exist to permit a warrantless entry of the residence to prevent the destruction of evidence and to effect a seizure of that evidence.¹ Thus, we affirm the conviction.

I. BACKGROUND

On March 19, 2003, while on routine patrol, Officer P. Lipscomb passed the house at 706 Confederate Avenue. Officer Lipscomb knew appellant resided there, but no evidence established who actually owned the residence. Officer Lipscomb had "not receive[d] a call to go to the house," but testified that, "from knowing [appellant] and knowing the past of his house, the problems with that house," he was "just riding by." Officer Lipscomb saw a Ford truck in the driveway. Lipscomb "ran the tags on the [truck]," which "[c]ame back stolen." The record does not make clear whether the information Lipscomb received indicated that only the tags were stolen or that both the tags and the truck were stolen. However, after receiving information that at least the tags were stolen, Lipscomb got out of his vehicle, approached the truck, and noticed, based on his experience, that the ignition was "popped" or "missing," which he testified was "a common way to start [a car] without [a] key[ ]."

Officer Lipscomb related the subsequent events as follows:

I walked up to the porch ... [and] knocked on the door to see if I could get a response, try to figure out whose truck it was or if they even knew anything about the truck. A female... answered [the door]. As soon as she did, I could smell marijuana coming from inside the house.

Officer Lipscomb testified that, based on his training and experience, he was familiar with the odor of both burning and unburned marijuana and that the odor he detected was the distinctive odor of burning marijuana.

As soon as the woman opened the door and Officer Lipscomb smelled burning marijuana,

[the woman] immediately yelled back into the back, turned around and stated that the police were at the door.

There was like a blanket or sheet or something that was hanging from the ceiling ... off to the right [of the door] ... so [Officer Lipscomb] couldn't see what was on the other side.... [W]hen [the woman] yelled back the police were there, [Officer Lipscomb] could hear people in there beg[in] to move around.

At that point, Officer Lipscomb entered the house, pushed the sheet aside, and saw appellant and numerous other people sitting around a table and on a couch. On the table, Officer Lipscomb saw "several crack pipes, cocaine residue, razor blades, just drug paraphernalia of that sort." Appellant was holding what appeared to be a crack pipe and, in response to Officer Lipscomb's questions, admitted he had "a couple of rocks" in his pocket, which he relinquished to Officer Lipscomb. Subsequent laboratory analysis determined the rocks were 0.36 grams of cocaine.

Appellant was arrested and indicted for possession of cocaine, and he moved to suppress the cocaine as the product of an illegal warrantless entry of his residence. He specifically argued only that the officer lacked exigent circumstances to support the entry, but he also cited a case in which the Court of Appeals concluded "there was no probable cause and exigent circumstances," which he argued was comparable to his case. The Commonwealth argued that the existence of the stolen license plates and "popped" ignition, coupled with the officer's detection of the odor of marijuana, gave him reason to believe that both thieves and marijuana might be in the house and that the people behind the sheet might be armed. It also argued that the odor of burning marijuana was a sufficient exigent circumstance for entry because, "[b]y its very nature, marijuana is the type of thing that if it's being burned, it's being destroyed."

The trial court noted the federal district court decision in Pineda v. City of Houston, 124 F.Supp.2d 1057 (S.D.Tex.2001), in which the court held that the odor of burned marijuana, standing alone, was insufficient to provide probable cause and exigent circumstances to enter a private residence. The court said the decision in Pineda recognized the existence of cases holding the odor of burning marijuana "itself proves that evidence of criminal conduct is being destroyed." However, the court in Pineda reasoned that those cases failed to recognize two United States Supreme Court decisions, Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), and Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). The court in Pineda opined that "`the smell of burning narcotics (marijuana) does not evidence an offense that is sufficiently grave to justify the entry and search of a private residence without a warrant.'" 124 F.Supp.2d at 1075. The court in Pineda went on to cite Welsh, where the offense suspected was a DUI in which the defendant had fled the scene and the Court stated that "although no exigency is created simply because there is probable cause to believe that a serious crime has been committed, application of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense ... has been committed." Welsh, 466 U.S. at 753,104 S.Ct. at 2099.

In denying appellant's motion to suppress, the court observed further:

The Virginia Supreme Court does not appear to have spoken on the matter....

* * * * * *

[I]n the [United States] Supreme Court analysis [in Welsh,] the gravity of the underlying offense seems to be particularly important.

* * * * * *

It seems to me that if I'm a police officer and I go to the front door of someone's home having, for whatever reason, noticed this vehicle there, the plates have been stolen, and then I notice that the ignition is popped and then I go up to the front door and someone then turns around and says, "The police are here," and I can't see what's behind that blanket or whatever it is that's obstructing my view, and at the same time I smell marijuana, frankly, I'm going to be quite nervous if I'm the police officer, and I think that the reasonable police officer probably would. I think this passes ... the [United States] Supreme Court's test.

.... I'm going to [deny] the motion to suppress.

Following a bench trial, the trial court convicted appellant of the charged offense, and appellant noted this appeal.

II. ANALYSIS

On appeal of a ruling on a motion to suppress, we view the evidence in the light most favorable to the prevailing party, here the Commonwealth, granting to the evidence all reasonable inferences deducible therefrom. Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991). "[W]e are bound by the trial court's findings of historical fact unless `plainly wrong' or without evidence to support them," McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc), but we review de novo the trial court's application of defined legal standards such as probable cause and reasonable suspicion to the particular facts of the case, Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996).

The United States Supreme Court has held that, "absent probable cause and exigent circumstances, warrantless [entries and] arrests in the home are prohibited by the Fourth Amendment." Welsh, 466 U.S. at 741, 104 S.Ct. at 2093; Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639 (1980). "Exigent circumstances justify a warrantless entry ... only when the police have probable cause to obtain a search warrant." Alexander v. Commonwealth, 19 Va.App. 671, 674, 454 S.E.2d 39, 41 (1995). "[W]arrantless entries into dwellings, followed by searches, seizures, and arrests therein ... are presumed to be unreasonable, in Fourth Amendment terms, casting upon the police a heavy burden of proving justification by exigent circumstances." Verez v. Commonwealth, 230 Va. 405, 410, 337 S.E.2d 749, 752-53 (1985); see Welsh, 466 U.S. at 750, 104 S.Ct. 2091.

In each such case, the court must determine "whether the law enforcement officers had probable cause at the time of their warrantless entry to believe that cognizable exigent circumstances were present." Keeter v. Commonwealth, 222 Va. 134, 141, 278 S.E.2d 841, 846 (1981) (entry to prevent destruction of evidence). We evaluate the existence of probable cause under a standard of objective reasonableness. See, e.g., Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996). "The officers are not required to possess either the gift of prophecy or the infallible wisdom that comes only with hindsight. They must be judged by their reaction to circumstances as they reasonably appeared to trained law enforcement officers to exist when the decision to enter was made." Keeter, 222 Va. at 141,278 S.E.2d at 846.

A. PROBABLE...