Daniels v. Commonwealth

• Decision Date: 06 November 2018
• Docket Number: Record No. 1351-17-1
• Citation: 819 S.E.2d 870,69 Va.App. 422
• Court: Virginia Court of Appeals
• Parties: Anthony Marquis DANIELS v. COMMONWEALTH of Virginia

69 Va.App. 422

819 S.E.2d 870

Anthony Marquis DANIELS

v.COMMONWEALTH of Virginia

Record No. 1351-17-1

Court of Appeals of Virginia, Norfolk.

NOVEMBER 6, 2018

Ivan D. Fehrenbach (D.R. Dansby, Ltd., on briefs), for appellant.

Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellee.

Present: Judges Humphreys, Malveaux and Senior Judge Annunziata

OPINION BY JUDGE ROBERT J. HUMPHREYS

Following a conditional guilty plea, appellant Anthony Marquis Daniels ("Daniels") was convicted in the Circuit Court of the City of Williamsburg and County of James City (the "circuit court") of manufacturing or selling a controlled substance, in violation of Code § 18.2-248, and possession of marijuana, second or subsequent offense, in violation of Code § 18.2-250.1. The circuit court sentenced Daniels to serve ten years and thirty days in prison, with five years suspended. On appeal, Daniels alleges the following assignments of error resulting from the circuit court’s denial of his two motions to suppress:

1. The [circuit] court erred when it denied Daniels’ Motions to Suppress the Evidence in the apartment because the search of the apartment violated Virginia Code Section 19.2-54.

2. The [circuit] court erred when it denied Daniels’ Motions to Suppress the Evidence in the Toyota Avalon vehicle because the court’s reliance on the plain view exception to the warrant requirement was clearly erroneous.

3. The [circuit] court erred when it denied Daniels’ Motions to Suppress the search of the vehicle, thereby also denying Daniels’ Motions to Suppress his inculpatory statements as derivative from an illegal search.

I. BACKGROUND

On May 27, 2016, Investigator David Rochard ("Investigator Rochard") of the James City County Police Department and a member of the Tri-Rivers Drug Task Force (the "task force") was investigating a heroin overdose. The overdose occurred two days earlier on May 25, 2017. Specifically, the task force was investigating heroin packaged in wax paper bags stamped with the word "Miracle" in red ink. This specific packaging was found at the scene of the overdose.

An informant advised police that Daniels was the supplier of the distinctively marked heroin. The informant also described the apartment complex where Daniels resided and sold heroin and mentioned that Daniels drove a "blue-green sedan ... probably a Toyota." The informant had previously purchased heroin from Daniels behind the apartment complex. Based upon this information, the task force determined that Daniels resided at the "Regency at Longhill" apartment complex.

Investigator Rochard and the task force subsequently conducted surveillance on the apartment complex. At some point, the task force "located a vehicle that possibly matched the description based upon the [informant’s] observations[.]" As Investigator Rochard and Investigator John Graca ("Investigator Graca") passed the vehicle, Investigator Rochard "positively identified [Daniels] from a photograph that [he] had pulled after having spoken with the witness" and based upon information in a police database. Investigators Rochard and Graca then observed the vehicle park in front of 5405 Lane Place Drive, Apartment G. Daniels was riding in the passenger seat of the vehicle with an unknown female driving. The vehicle was registered to a female living at 5405 Lane Place Drive, Apartment G.

Around 8:21 p.m., Investigator Rochard applied for and obtained a search warrant permitting a search of "the residence, curtilage, outbuilding and vehicle[.]" However, the search warrant that Investigator Rochard received did not include the vehicle within its scope. After witnessing Daniels and the unknown female enter the apartment, a police SWAT team executed the search warrant. Daniels attempted to flee from the top window of the apartment after the SWAT team knocked on the front door. The SWAT team then made a forced entry into the apartment and detained Daniels and the unknown female. Inside, officers found a small amount of marijuana, a digital scale, and approximately $1,000 in cash. The unknown female occupant was later identified as Valerie Kramer Burton ("Burton"), Daniels’ fiancée. Burton was not arrested.

While the vehicle was being secured, Investigator Rochard received a radio transmission from another officer that there was a suspicious item, in plain view, inside the vehicle. Investigator Rochard approached the vehicle and observed through the car window, "from the passenger side looking down[,]" that the door handle contained "a bundle of wax paper bag[s] ... secured by a rubber band." According to Investigator Rochard, "[i]n that bundle you could see what appeared to be a red stamp. I couldn’t make out what it said but it was a red stamp."¹ Investigator Rochard believed that the bundle was packaged heroin based upon his training and experience.

After opening the vehicle door and retrieving the bundle, Investigator Rochard observed that the various packages contained in the bundle were stamped with the word "Miracle" in red. However, before he could see the word "Miracle" clearly, Investigator Rochard needed to remove the rubber band from the bundle and observe the packages "a little more closely." Investigator Rochard photographed the evidence and subsequently discovered four additional bundles of heroin packaged in the center console and trunk of the vehicle, totaling over one hundred bags. At that point, Investigator Rochard informed Daniels of his Miranda rights and explained what items were discovered in the vehicle. Daniels admitted that the heroin belonged to him, not his fiancée, and agreed to cooperate. Daniels was interrogated a second time by Investigators Rochard and Graca at the James City County Police Department.

Daniels filed two motions to suppress. The first motion challenged the vehicle search and Daniels’ inculpatory statements. The second motion to suppress relied upon Code § 19.2-54 to argue for the suppression of "all evidence found pursuant to the searches conducted in the instant case, and to suppress all statements [Daniels] made to law enforcement officers[.]"

The hearing on Daniels’ motions to suppress took place on April 17, 2017. There, Daniels argued that the magistrate’s failure to file a copy of the affidavit as required by Code § 19.2-54 rendered the search invalid and required the exclusion of evidence obtained by the task force. Daniels also argued that the good faith exception to the warrant requirement could not apply in this case because of this Court’s decision in Campbell v. Commonwealth, 66 Va. App. 677, 791 S.E.2d 351 (2016), and because Code § 19.2-54 provides for a statutory remedy.

During the hearing, the Commonwealth called Investigator Rochard as its first witness. After describing the events leading up to Daniels’ arrest, Investigator Rochard noted that over the course of his career, he had come into contact with heroin over one hundred times and that he had attended classes specifically addressing the packaging and distribution of heroin. Further, Investigator Rochard testified that heroin is often packaged in wax paper bags with rubber bands securing bundles together. He added that, "[t]ypically, heroin does have a marking or it’s a stamp or some sort of marking identifying as, if you will, a product from specific origin[.]" Investigator Rochard testified that, based upon his training and experience, he believed that the bundle observed in the passenger side door handle was packaged heroin, which he subsequently retrieved and confirmed.

Investigator Rochard also addressed the search warrant issue during his testimony. Investigator Rochard confirmed that on June 1, 2016, he filed a search warrant affidavit with the circuit court. Investigator Rochard also had a copy of the search warrant and supporting affidavit during the hearing.

Investigator Rochard testified that the affidavit was complete and that he was aware of the magistrate’s failure to file a copy of the affidavit. Investigator Rochard testified that he was present before the magistrate when the search warrant was issued and asked the magistrate to base the issuance of the search warrant on the information contained in the affidavit.

The circuit court also heard testimony from Investigator Graca and Burton. Notably, Burton testified that she was the owner of the vehicle searched by Investigator Rochard, a 1999 Toyota Avalon. Burton also confirmed that she makes the car payments on the vehicle. She noted, however, that Daniels frequently drove the vehicle, performed all the required maintenance, and stored items inside the vehicle.

After hearing arguments from counsel, the circuit court denied both motions to suppress. Explaining its decision with respect to the Code § 19.2-54 issue, the circuit court found that the purpose of the statute is to "provide notice to the defendant." The circuit court also found that it was conjecture that Investigator Rochard could have filed a different affidavit than what the magistrate had reviewed when the magistrate made the probable cause determination. Further, the circuit court found that Code § 19.2-54 served a notice function and was not designed as a check and balance system, as argued by Daniels.

Turning to the warrantless vehicle search, the circuit court determined that Investigator Rochard could observe the bundle of heroin in plain view and that Investigator Rochard was able to determine that the bundle and packaging contained narcotics based upon his training and experience. Finally, the circuit court found that Daniels made the inculpatory statements at issue after receiving and understanding his Miranda rights, which Daniels waived. On April 26, 2017, the circuit court entered a denial order reflecting its decision.

On June 13, 2017, Daniels entered into a plea agreement with the Commonwealth, which permitted him to enter a conditional plea of guilty pursuant to Code § 19.2-254. Following a hearing on August 2, 2017...