Derr v. Com.

• Decision Date: 03 May 1988
• Docket Number: No. 0750-86-2,0750-86-2
• Citation: 6 Va.App. 215,368 S.E.2d 916
• Court: Virginia Court of Appeals
• Parties: Norman B. DERR v. COMMONWEALTH of Virginia. Record

Page 916

368 S.E.2d 916

6 Va.App. 215

Norman B. DERR v. COMMONWEALTH of Virginia.

Record No. 0750-86-2.

Court of Appeals of Virginia.

May 3, 1988.

Benjamin H. Woodbridge, Jr. (M.R. Reamy, Woodbridge & Reamy, Fredericksburg on brief), for appellant.

Thomas C. Daniel, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and BAKER and BENTON, JJ.

BENTON, Judge.

Norman B. Derr was acquitted of attempted rape but convicted by a jury of robbery and sentenced to ten years' imprisonment. On appeal, he contends that his fourth amendment rights were violated by the admission into evidence of items seized from his motor vehicle. We conclude that the admission of some of the evidence of which he complains was violative of his fourth amendment rights; therefore, we reverse the conviction and remand for a new trial.

At the hearing on the motion to suppress, Deputy Hatch, of the Spotsylvania County Sheriff's Department, testified that at 7:40 p.m. on October 31, 1985, he observed an unoccupied 1973 Cadillac parked in front of a partially completed house on a cul-de-sac. The cul-de-sac, which was located in a newly developed subdivision in Spotsylvania County, had not yet been designated as a public road and was not then marked by street signs. Hatch stated that no signs prohibiting trespassing had been posted in the area and that he observed no activity in the area surrounding the vehicle. The vehicle displayed current registration and inspection stickers and did not appear to be in violation of the motor vehicle laws.

Hatch attempted to obtain a check of the vehicle's license plates through the Division of Motor Vehicles. Unable to get a response from his dispatcher, Hatch called his supervisor, Sergeant Smith, and requested that he join him at the scene. Before Smith arrived, Hatch examined the vehicle's interior using his flashlight. Hatch testified that he was able to discern "the butt of what appeared to be a pistol protruding from under the driver's ... seat," a wallet and a nylon stocking protruding from under the fold-down divider between the driver's and front passenger's seats, and an electric drill lying on the front seat.

Hatch entered the vehicle through the unlocked door on the driver's side and found in the glove compartment the vehicle's registration, a tape recorder, and a small paring knife. He looked inside the wallet and found a union card and a Virginia operator's license, both issued to Derr, and a five dollar bill. Upon further examination, he determined that the pistol was a pellet gun. He noticed for the first time that the nylon stocking, which he had initially seen from the exterior, was approximately ten inches in length and apparently cut from a pantyhose. Hatch also saw two headcovers fashioned from handkerchiefs and noticed keys in the ignition.

When his supervisor arrived, Hatch showed him what he found in the vehicle and then replaced all the items where he found them. Hatch, his supervisor, and Deputy Frazier began a search of the area; however, Hatch was called away on an unrelated matter but subsequently returned to the Cadillac at about 8:20 p.m. When Hatch returned, the three officers left the vehicle unattended and again searched for suspicious activity in the nearby area. At approximately 8:43 p.m., while Hatch was still in the vicinity, he heard a radio alert pertaining to a robbery occurring at a beauty shop located on Route 3, approximately 75-100 yards from where the vehicle was discovered. Hatch proceeded to the shop where he met with its owner, Teresa Manfre, and Detective Samuels. No surveillance was maintained on the vehicle during that time. Although Hatch did not return to the location of the vehicle, he advised other officers by radio "to be on the lookout for that vehicle and stop [it] if they could find it."

Hatch obtained a search warrant after the vehicle was stopped and Derr was in custody. The affidavit which he executed in support of the issuance of the search warrant states in pertinent part:

Approximately 5 minutes prior to the offense your affiant observed the described vehicle parked approximately 100 (One Hundred) yards from the scene of the crime. The doors were unlocked and the keys were in the ignition. Upon examination of the inside of the auto to find a registration card the affiant located a wallet containing, an operators license issued to Norman Derr of Tappahannock Va. and a five dollar bill. Also in the front seat were a homemade mask from a pair of nylon pantyhose. Two head coverings fashioned from hankerchiefs and an electric drill. The vehicle was parked in front of a home under construction and the affiant felt a further investigation was in order due to thefts and a previous rape in the immediate area. A further examination of the interior of the auto disclosed a pellet pistol under the front seat.

Based on your affiants experience as a law enforcement officer it was suspected criminal activity was occurring in the area and would be linked to this auto. A license check of the owner disclosed he matched the physical description of a rape suspect at Kinder Kare Nursery which was located near where the auto was located.

* * *

* * *

... later the suspect vehicle was located near Fredericksburg on Lafayette Blvd. From the outside of the vehicle the affiant could observe a roll of U.S. currency stuffed between the seats in the front seat also a quantity of loose coins on the floor board. These items were not in the car when the affiant first investigated the suspicious vehicle.

The judge overruled the motion to suppress all items seized pursuant to the warrant and Hatch's statements pertaining to his observations of the vehicle.

In this appeal from the robbery conviction, Derr contends that Hatch's initial entry into the vehicle was violative of the fourth amendment and that the subsequent search conducted pursuant to a warrant issued upon information obtained through the initial intrusion was likewise invalid. He, thus, asserts that it was error for the trial court to admit into evidence the items seized during the search of his vehicle. Although Hatch testified that the vehicle was not on a public street, Derr has not raised any issues concerning the nature of the site and we do not decide whether the location of the vehicle affects the propriety of the search. The precise issue raised in this case requires us to determine whether Hatch had probable cause to conduct the warrantless search.

Generally, searches conducted without a warrant are per se unreasonable and, therefore, unlawful under the fourth amendment. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Vass v. Commonwealth, 214 Va. 740, 743, 204 S.E.2d 280, 283 (1974). The general rule is subject to defined exceptions. Under the "automobile exception" to the fourth amendment's warrant requirement, a vehicle may be searched without a warrant if there is probable cause to believe that the vehicle contains evidence of crime. United States v. Ross, 456 U.S. 798, 806-08, 102 S.Ct. 2157, 2163-64, 72 L.Ed.2d 572 (1982); see also Vass v. Commonwealth, 214 Va. at 743-44, 204 S.E.2d at 283.

In determining whether probable cause to search exists, no hard and fast rule exists which may be rigidly applied to yield a certain result in each case. "Rather, probable cause exists when the facts and circumstances within the officer's knowledge, and of which he has reasonably trustworthy information, alone are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed." Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E.2d 833, 836 (1981), cert. denied, 456 U.S. 906, 102 S.Ct. 1753, 72 L.Ed.2d 163 (1982). Although we are required to "test what the totality of circumstances meant to police officers trained in analyzing the observed conduct for purposes of crime control," Hollis v. Commonwealth, 216 Va. 874, 877, 223 S.E.2d 887, 889 (1976), we must also consider that "the probable-cause determination must be based on objective facts that could justify the issuance of a warrant by a magistrate." Ross, 456 U.S. at 808, 102 S.Ct. at 2164.

Hatch observed the vehicle, at night, parked on a cul-de-sac in an area in which there were only uncompleted, unoccupied houses. Although it was Halloween night and there was a great deal of minor nuisance activity, Hatch knew of no criminal activity that evening which he associated with the immediate area. Although he testified at the suppression hearing that he was aware of "a number of larcenies and burglaries, at least one sexual assault in the area, all within ... a couple-months period," he did not articulate a nexus between that awareness and his reason for entering the vehicle.

Upon illuminating the interior of the vehicle with his flashlight from the exterior an action which implicates no fourth amendment concerns, see, e.g., United States v. Dunn, 480 U.S. ----, ----, 107 S.Ct. 1134, 1141, 94 L.Ed.2d 326 (1987); Texas v. Brown, 460 U.S. 730, 739-40, 103 S.Ct. 1535, 1541-42, 75 L.Ed.2d 502 (1983), Hatch testified that he observed a portion of a nylon hose and a wallet protruding from under a movable divider on the front seat, an electric drill lying on the...