Daye v. Commonwealth

• Decision Date: 22 November 2022
• Docket Number: 0925-21-3
• Parties: MI' SHAEL ELIJAH DAYE v. COMMONWEALTH OF VIRGINIA
• Court: Court of Appeals of Virginia

MI' SHAEL ELIJAH DAYE v. COMMONWEALTH OF VIRGINIA

No. 0925-21-3

Court of Appeals of Virginia

November 22, 2022

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Michael R Doucette, Judge

(Thomas S. Leebrick; Thomas S. Leebrick, P.C., on brief), for appellant. Appellant submitting on brief.

Lucille M. Wall, Assistant Attorney General (Jason S Miyares, Attorney General, on brief), for appellee.

Present: Judges AtLee, Friedman and Raphael

MEMORANDUM OPINION ^[*]

FRANK K. FRIEDMAN, JUDGE

The trial court convicted appellant of possession with intent to distribute five or more pounds of marijuana, possession of a firearm by a convicted non-violent felon, and possession of a firearm while distributing or possessing with intent to distribute more than one pound of marijuana.^[1]Appellant argues that the trial court erred in denying his motions to suppress. He also challenges the sufficiency of the evidence to sustain his convictions. For the following reasons, we affirm the rulings of the trial court.

BACKGROUND

"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial." Poole v. Commonwealth, 73 Va.App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). In doing so, we discard any of appellant's conflicting evidence and regard as true all credible evidence favorable to the Commonwealth and all inferences that may reasonably be drawn from that evidence. Gerald, 295 Va. at 473.

The Incidents Surrounding Appellant's Arrest

On November 17, 2018, Lynchburg Police Officer Sawyer and Detective Scott responded to a disorderly conduct call for a fight near appellant's apartment. The officers parked in appellant's driveway because it was the only available area on that side of the street to park out of the way of traffic. Upon exiting their vehicles, the officers immediately smelled a strong odor of fresh marijuana. The officers did not hear any noises indicating an ongoing disorder, and so they approached appellant's door to investigate both the disorderly conduct call and the marijuana odor.

As Officer Sawyer approached appellant's front door, the marijuana odor became stronger and more defined, and he saw what he believed at the time to be a smoking device in the window. Officer Sawyer knocked and kicked on the door and shouted for the door to be opened. Appellant then opened the door and walked onto the porch to show the officers where the alleged fight happened. Officer Sawyer asked appellant if they could go into the apartment and investigate the marijuana scent; appellant denied that there was marijuana inside. When Officer Sawyer asked if he could confirm there was "no weed," appellant asked whether the officers had a search warrant. The officers told appellant that they had probable cause, and when appellant did not immediately allow them to go inside, they added, "Okay, let's put it this way. We can either detain you and put you in cuffs and sit you on these steps for five hours while we go ahead and get [a warrant]." Appellant then said "go ahead" and sat on the steps. He stood a short time later and admitted that he had "smoked a little blunt."

One of the officers responded, "Is that it? That's all it is? So let me just-I'm gonna walk through and make sure." The officers then entered the apartment and saw a baseball-sized bag of marijuana in plain view on a coffee table in the first bedroom. They also saw marijuana "shake" and a trash bag containing suspected marijuana in a hallway. In the "back" bedroom, which belonged to Nashiem Clark, a firearm was found protruding from under the bed in plain view. In appellant's bedroom, they found a large amount of cash on the floor, the television stand, and in an open dresser drawer. They also saw a digital scale in the basement.

Officer Sawyer believed he needed a supervisor's approval to obtain a search warrant, but Detective Scott testified that he did not believe any such requirement existed. Detective Scott "locked down" the apartment while Officer Sawyer, who had received permission from a supervisor, obtained a search warrant. While executing the search warrant that same night, the police entered Clark's bedroom and found a Glock handgun under the covers of the bed with a thirty-round magazine, another Glock handgun in a dresser drawer with various ammunitions and magazines, and multiple bags matching the bags eventually found in the basement. In appellant's bedroom, police found cash totaling $3,423, marijuana shake on the television stand, burnt "roaches," and a backpack containing small, empty baggies and more marijuana shake. In a shared hallway, police found multiple trash bags filled with empty packaging and marijuana shake. In the basement, they found a large amount of marijuana individually packaged in various sizes, clear plastic baggies, a third Glock handgun, and a backpack filled with ammunition. Appellant told Officer Sawyer that he and his girlfriend had the cash for a trip they were taking.

Appellant's Motion to Suppress and the Circuit Court's Ruling

Appellant moved to suppress any evidence found within his apartment as the product of an unconstitutional search. After a hearing on his motions, the trial court found that appellant did not consent to the initial search, the officers' initial entry into the apartment was unlawful, and a protective sweep of the apartment was not justified.^[2] However, the court also found that both Officer Sawyer and Detective Scott detected "the strong smell of" marijuana as soon as they got out of their car and that they localized the smell to appellant's residence before he even opened the door. When appellant did open the door, the police smelled marijuana coming from inside his home. The court concluded that the evidence should not be suppressed, despite the unlawful entry into appellant's home, because it "inevitably would have been discovered by lawful means."

The court held that "the leads making the discovery inevitable were possessed by the police at the time of the misconduct," noting that a strong odor of marijuana had been localized to the interior of the residence, and that "there was a reasonable probability that [the evidence] would have been discovered by lawful means but for the police misconduct ...." In a written ruling, the court noted that Sawyer's "decision to pursue the search warrant was independent of what he saw during the unlawful search." The trial court noted Sawyer's testimony that he believed he had appellant's consent to enter the apartment-even writing in the search warrant affidavit that appellant had given consent-and his testimony that he believed the search of appellant's residence to be justified as a protective sweep.^[3] The court reasoned that

[w]hile [Sawyer's] subjective beliefs alone could never legitimize the search, his beliefs are relevant to show the inevitability of his actions. In spite of his belief that his search was already justified and lawful as both a consent search and a protective sweep, he still went before the magistrate to obtain a search warrant.

The court also concluded that the magistrate would have issued the search warrant based solely on the evidence the officers obtained before the unlawful entry into the apartment. Accordingly, the trial court denied the motions to suppress.

The Trial Proceedings

At trial, Clark testified that he sold marijuana and appellant was his supplier. Clark stated that he was at the apartment when the police arrived and fled through the basement, but appellant later called and told him to return to the apartment to claim the firearms because appellant was a felon. Clark testified that the backpack and firearm found in the basement belonged to him, but he did not put either item there. Clark stated that one of the firearms found in his bedroom belonged to appellant; Clark did not know how it ended up in his bedroom but testified that appellant usually carried it when he was selling marijuana. Clark stated that appellant split the marijuana up into pounds and gave a portion to Clark to sell. He testified that three pounds of the marijuana found in the house belonged to him and that the rest-well over five pounds-belonged to appellant.

Appellant moved to strike the Commonwealth's evidence, arguing that Clark's testimony was not credible because he "had every incentive in the world" to testify against appellant and, without that testimony, the Commonwealth could not prove that appellant possessed the guns and marijuana. The trial court denied the motion and convicted appellant of possession with intent to distribute five or more pounds of marijuana, possession of a firearm by a convicted non-violent felon, and possession of a firearm while distributing or possessing with intent to distribute more than one pound of marijuana.

ANALYSIS

I. Motions to Suppress

Appellant argues that the trial court erred in denying his motions to suppress. He asserts that the inevitable discovery doctrine was not applicable because Officer Sawyer's ability to obtain a search warrant hinged on the approval of a supervisor and too many variables existed that could have impacted a supervisor's determination to authorize a warrant.

A. Standard of Review

"When reviewing the denial of a motion to suppress, 'we view the evidence in the light most favorable to the Commonwealth.'" Ray v. Commonwealth, 74 Va.App. 291, 302 (2022) (quoting Jones v Commonwealth, 71 Va.App. 375, 380 (2019)). "Our review includes 'evidence adduced at both the trial and the suppression hearing.'" Id. (quoting Carlson v. Commonwealth, 69 Va.App. 749, 758 (2019)). "We give deference to the trial court's factual findings and review ...