Commonwealth v. Williams
| Decision Date | 06 July 2018 |
| Docket Number | Docket No.: CR17-2836 |
| Court | Circuit Court of Virginia |
| Parties | Re: Commonwealth of Virginia v. Lionel Williams, Jr. |
Michelle Newkirk, Esquire
Office of the Commonwealth's Attorney
City of Norfolk
800 East City Hall Avenue, Suite 600
Norfolk, Virginia 23510
Daymen Robinson, Esquire
5900 East Virginia Beach Boulevard, Suite 416
Norfolk, Virginia 23502
Dear Counsel:
Today the Court rules on the Motion to Suppress (the "Motion") filed by Defendant Lionel Williams, Jr., in which he seeks to suppress any evidence "seized in violation of his freedom from unreasonable search and seizure." The specific issue before the Court is whether a handgun recovered from the living room of Williams's house by a police officer after Williams consented to a search of only two other rooms in the house should be suppressed. Because the officer was not conducting a protective sweep when he discovered the firearm and the handgun was not in plain view, as the officer was not in a constitutionally permissible position when he discovered it, the Court finds that the search of Williams's living room and subsequent seizure of the firearm were unlawful. The Court therefore GRANTS Williams's motion to suppress the handgun recovered from his house.
Officers Yelen and Rieke of the Norfolk Police Department responded to a report of gunshots fired in the vicinity of a residence on Somme Avenue in the city of Norfolk. The officers went to the backyard of the residence, the direction from which the shots apparently were heard. While there, they heard the sound of a handgun slide being racked in a neighboring backyard on Vimy Ridge Avenue (the "Vimy Ridge Yard"), which was separated from the yard they were in by a chain-link fence, and subsequently saw two men in that yard. One was holding a box and the other appeared to be holding a handgun. Officer Yelen instructed the two individuals to not move while Officer Rieke proceeded around both houses to the Vimy Ridge Yard. The individual who appeared to be holding a handgun—who allegedly was Williams—fled the scene.1 One of the officers called for backup. Rieke detained the individual holding the box once he arrived at the Vimy Ridge Yard, and Yelen then went around the houses and joined Rieke. A few minutes later, with both officers now in the Vimy Ridge Yard, Williams was seen through a window in the Vimy Ridge house and then emerged into the backyard where the officers were.
An officer handcuffed Williams after a scuffle that left Williams on the ground. A handgun magazine was discovered on the ground under Williams, and four shell casings were discovered elsewhere in the Vimy Ridge Yard. At some point, additional officers reported to the scene. One of the officers confronted Williams and questioned him about the alleged handgun, commenting that he had seen Williams through the window and implying that Williams might have hidden the handgun in that room (the "First Room").2 Williams admitted that he lived in the Vimy Ridge house. Rieke asked Williams for consent to search the First Room, and Williams consented. Officer Rieke and another officer followed Williams from the backyard, through the backdoor, across the kitchen and dining room, and into the First Room. Officer Yelen followed the same path a short time later to assist in the search. No contraband was found in the First Room. One of the officers then asked Williams for consent to search his bedroom (the "Bedroom"), and Williams consented. No contraband was found in the Bedroom. While the others were in the Bedroom, Yelen wandered outside the Bedroom approximately four steps into the adjoining dining room, placing him at the opposite end of the room from where the group had entered from the backdoor. He shined his flashlight around the unlit adjacent living room3 and spotted a handgun in plain view near the front door.
Williams subsequently filed a motion to suppress introduction of the discovered handgun at trial. A hearing (the "Hearing") on the motion was held on June 20, 2018. At the conclusion of the Hearing, the Court took the matter under advisement and allowed the parties to file post-hearing briefs. Williams filed a post-hearing brief, but the Commonwealth did not.
Williams admits that he consented to a search of the First Room and the Bedroom, rooms in which no contraband was found. He argues that "[d]uring the search of the bedroom by all of the officers present, Officer Yelen, without announcement, abandoned his individual search, and with his flashlight on, [went] into the darkened areas of the dining room." (Def.'s Memo. in Supp. of Mot. to Suppress 2.) He asserts that Yelen then "took several steps to his right—the opposite direction from where he entered the home—and shined his flashlight into the darkened living room, which illuminated a firearm laying on the floor, next to the front door." (Id.) Williams argues that "[n]othing [Williams] said can be construed . . . to allow entry or search of the room closest to the front door." (Id. at 3.)
Williams contends that the plain view exception to the warrant requirement is inapplicable. (Id. at 3-5.) He argues that Officer Yelen "had left the area where [Williams had] given consent to search" and that Williams "was in another area of the house, handcuffed, with two other Officers" when the handgun was discovered. (Id. at 4.) Williams therefore asserts that "Yelen had no legal justification to be in the place he was when he viewed the firearm laying on the floor of [Williams's] home." (Id. at 5.)
The Commonwealth's argument is twofold. First, it asserts that Officer Yelen was in Williams's home pursuant to Williams's consent, and the handgun was seized while in the officer's plain view. Second, the Commonwealth asserts that Yelen was permitted to go beyond the two rooms Williams consented to be searched—and the pathway Williams led them on to and from those rooms—in order to conduct a protective sweep of the premises, and the handgun was in plain view during the protective sweep.
A defendant seeking to suppress evidence bears the burden of proving factual circumstances giving rise to a reasonable expectation of privacy, which is the burden of persuasion. Testa v. Commonwealth, 55 Va. App. 275, 282 n.3, 685 S.E.2d 213, 216 n.3 (2009). In response, the Commonwealth has the burden to prove admissibility of the seized evidence by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168 (1986). For a warrantless search, the Commonwealth also has the burden of establishing an exception to the warrant requirement. Walls v. Commonwealth, 2 Va. App. 639, 645, 347 S.E.2d 175, 178 (1986).
The Fourth Amendment of the Constitution of the United States ensures "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." As such, warrantless searches are considered per se unreasonable, subject to "a few well-defined exceptions" including (1) consent, (2) search incident to lawful arrest, (3) plain view, and (4) exigent circumstances. Collins v. Commonwealth, 292 Va. 486, 497, 790 S.E.2d 611, 616 (2016) (quoting Abell v. Commonwealth, 221 Va. 607, 612, 272 S.E.2d 204, 207 (1980), rev'd on other grounds, 2018 U.S. LEXIS 3210 (May 29, 2018)).
Generally, "[t]he plain view doctrine provides that no reasonable expectation of privacy attaches to objects exposed to plain view." Gibson v. Commonwealth, 50 Va. App. 744, 749, 653 S.E.2d 626, 628 (2007). "Thus, police observation of objects in plain view does not implicate the Fourth Amendment so long as the police are legitimately in the place where they viewed the objects." Id.
In order for a seizure to be permissible under the plain view doctrine, two requirements must be met: "(a) the officer must be lawfully in a position to view and seize the item, [and] (b) it must be immediately apparent to the officer that the item is evidence of a crime, contraband, or otherwise subject to seizure."
Hamlin v. Commonwealth, 33 Va. App. 494, 502, 534 S.E.2d 363, 367 (2000) (quoting Conway v. Commonwealth, 12 Va. App. 711, 718, 407 S.E.2d 310, 314 (1991)).
"[S]earches made by the police pursuant to a valid consent do not implicate the Fourth Amendment." McNair v. Commonwealth, 31 Va. App. 76, 82, 521 S.E.2d 303, 306 (1999). However, "[t]he government may not exceed the boundaries of the consent, and any evidence gathered beyond those boundaries must be excluded." Bolda v. Commonwealth, 15 Va. App. 315, 319, 423 S.E.2d 204, 207 (1992) (quoting United States v. Martinez, 949 F.2d 1117, 1119 (11th Cir. 1992)). "When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given." Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968). "This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority." Id.
Another recognized exception to the warrantless search prohibition is a protective sweep, which "permits the police to conduct a limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief, based on specific and articulable facts, that the area to be swept harbors an individual posing a danger to those on the arrest scene." Commonwealth v. Robertson, 275 Va. 559, 564, 659 S.E.2d 321, 324 (2008) (citing Maryland v. Buie, 494 U.S. 325, 337 (1990); Megel v. Commonwealth, 262 Va. 531, 536, 551 S.E.2d 638 (2001)). This "reasonableness determination" is analyzed "from an objective, rather than subjective, perspective." Commonwealth v. Marzuq, 2000 Va. App. LEXIS 489, at *7 n.4 (June 29, 2000) (citing Whren v. United States, 517 U.S. 806, 817 (1996)).4 "The rationale for the protective sweep exception is that a dangerous person could...
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