Com. v. Grimstead

Decision Date05 August 1991
Docket NumberNo. 0507-91-1,0507-91-1
Citation407 S.E.2d 47,12 Va.App. 1066
PartiesCOMMONWEALTH of Virginia, v. John Joseph GRIMSTEAD. Record
CourtVirginia Court of Appeals

Linwood T. Wells, Jr., Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Eugene Murphy, Asst. Atty. Gen., on brief), for appellant.

Roger S. Fraley, for appellee.

Present: BAKER, BENTON, and WILLIS, JJ.

BENTON, Judge.

John Joseph Grimstead was indicted for possessing a sawed-off shotgun. The trial judge granted Grimstead's pre-trial motion to suppress the shotgun, which was discovered during a police officer's search of Grimstead's car. The Commonwealth appeals, see Code § 19.2-398 et seq., and raises the issue whether the presence of a hemostat in a car provides probable cause justifying an officer's seizure of the hemostat as evidence of a crime and search of the car for contraband. We affirm the trial judge's ruling.

We view the evidence in a light most favorable to Grimstead, the prevailing party below, and we grant all reasonable inferences fairly deducible from that evidence. Commonwealth v. Holloway, 9 Va.App. 11, 20, 384 S.E.2d 99, 104 (1989). We will not reverse the trial judge's decision unless it is plainly wrong. Code § 8.01-680. Under these standards, the evidence established that Officer Ronald M. Goss stopped Grimstead's car in the early morning hours for speeding. During the encounter, the officer saw a hemostat in the ashtray, and he removed Grimstead from the car. The officer's intention at that moment was

[t]o examine them to see if they had any residue or anything about them.

* * * * * *

I had looked at the hemostats in the ashtray. However, I needed in my mind to make an observation as to whether or not they had been used as any illegal use, anything other than their intended lawful use; and to do so, I needed to examine them. To examine them, I needed to retrieve them and take a closer look at them.

* * * * * *

I hadn't seized them to hold them as evidence because I didn't know if they were contraband.

The officer further testified that he would not have searched the car if the hemostat was free of any contraband.

It was only after I observed the residue and was confident that it had been used for [an illegal] purpose that I conducted a search at all. I have seen hemostats in other vehicles hanging from the rearview mirror and such that contained no residue, and I did not do a search.

During his examination of the seized hemostat, he observed, though, what he believed to be burnt marijuana residue on the tips of the hemostat. He then searched the car and found the sawed-off shotgun.

The Commonwealth contends that the "plain view" doctrine justifies the search and seizure. We disagree. "[I]n order to invoke the 'plain view' doctrine, the police must have had probable cause to believe that the evidence seized was a seizable item, i.e., contraband, the fruit or tools of a crime, or other evidence of crime." Delong v. Commonwealth, 234 Va. 357, 365, 362 S.E.2d 669, 673 (1987), cert. denied, 485 U.S. 929, 108 S.Ct. 1100, 99 L.Ed.2d 263 (1988) (citing Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987)). The Supreme Court in Hicks held that an object may be moved for closer investigation "only if the 'plain view' doctrine would have sustained a seizure of the equipment." 480 U.S. at 326, 107 S.Ct. at 1153. Probable cause is required at the outset before an officer may seize an item in plain view. Id.

The officer knew only that the hemostat was in Grimstead's ashtray. The officer did not notice either ashes or hand-rolled cigarette butts in the ashtray. He reported no evidence that marijuana seeds or particles were present. From his vantage point outside the car he could see no marijuana or other illegal drugs in the car. He also could not see whether there was residue on the hemostat before he seized and inspected it more closely. The officer acknowledged several legal uses for hemostats and admitted that he would not have searched Grimstead's car had there been no residue on the hemostat.

On this evidence, the officer did not have probable cause to seize the hemostat as evidence of a crime.

'[P]robable cause exists when the facts and circumstances within the officer's knowledge ... alone are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed.' ... However, 'suspicion, or even strong reason to suspect' is not an...

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