Com. v. Grimstead, 0507-91-1

• Docket Nº: No. 0507-91-1
• Citation: 407 S.E.2d 47, 12 Va.App. 1066
• Case Date: August 05, 1991
• Court: Court of Appeals of Virginia

Page 47

407 S.E.2d 47 12 Va.App. 1066 COMMONWEALTH of Virginia,
v.
John Joseph GRIMSTEAD. Record No. 0507-91-1. Court of Appeals of Virginia. Aug. 5, 1991.

Page 48

[12 Va.App. 1067] 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.

* * * * * *

[12 Va.App. 1068] 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...