Evans v. Commonwealth, Record No. 141206.

• Docket Nº: Record No. 141206.
• Citation: 776 S.E.2d 760, 290 Va. 277
• Case Date: September 17, 2015
• Court: Supreme Court of Virginia

290 Va. 277
776 S.E.2d 760

Tevin Gary EVANS
v.
COMMONWEALTH of Virginia.

Record No. 141206.

Supreme Court of Virginia.

Sept. 17, 2015.

776 S.E.2d 761

J. Barry McCracken, Assistant Public Defender, for appellant.

Susan Baumgartner, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: LEMONS, C.J., GOODWYN, MIMS, McCLANAHAN, POWELL, and KELSEY, JJ., and MILLETTE, S.J.

Opinion

Opinion by Justice D. ARTHUR KELSEY.

290 Va. 280

In this criminal case, Tevin Gary Evans entered a conditional guilty plea after the trial court denied his motion to suppress. In his motion, Evans claimed that police officers unlawfully entered his apartment and seized his weapons and drugs. The Court of Appeals denied his petition for appeal. Holding that the officers did not violate the Fourth Amendment, we affirm.

I.

We restate the facts “in the light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.” Glenn v. Commonwealth, 49 Va.App. 413, 416, 642 S.E.2d 282, 283 (2007) (en banc) (citation omitted), aff'd, 275 Va. 123, 654 S.E.2d 910 (2008). This standard requires us “to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” Jones v. Commonwealth, 279 Va. 521, 528, 690 S.E.2d 95, 99 (2010) (citation omitted).

While on bicycle patrol, three uniformed police officers smelled a heavy and extremely strong odor of marijuana coming from an apartment window. A police detective, who later arrived on the scene, testified at trial that the officers reported smelling “burnt” marijuana. On brief, Evans concedes that “[i]n the instant case, it was undisputed that the officers smelled the odor of burning marijuana” emanating from his apartment. See Appellant's Br. at 10.¹

The officers knocked on the apartment door three times, and Evans' mother answered each time. During the first encounter, the officers asked “questions about someone smoking” and explained

290 Va. 281

to her the “heavy odor of marijuana” that they smelled. During the second encounter, Evans' mother appeared to be “shaking” and “nervous.” She exclaimed, “Ain't nobody smoking weed in here,” and then “slammed” the door in the “face” of one of the officers. During this brief episode, the officers smelled the odor of marijuana “like a gust of wind” coming from inside the apartment.

When knocking on the door the third time, the officers “announced out loud it was the police.” No one answered the door for about five minutes. During this period, the officers heard unspecified movement inside the apartment. After Evans' mother finally opened the door, she quickly tried to close it again. Another strong marijuana odor wafted through the doorway.

Concluding that exigent circumstances existed at this point, one of the officers put his hand on the door to prevent it from closing, and as he did so, he told Evans' mother that he was coming in to investigate. The officer then entered the apartment and observed in plain view “a burnt marijuana blunt” and marijuana residue. When asked by the officers if there was marijuana in the apartment, Evans' mother admitted, “My son was smoking a blunt,” and offered, “I'll get it for you.”

Shortly thereafter, an investigator asked for and received written consent from Evans and his mother to search the apartment. In their subsequent search, investigators found cocaine, morphine, a loaded Glock handgun previously reported as stolen, a loaded Taurus handgun, three boxes containing a total of 119 rounds of ammunition, and a revolver in a container along with 6 rounds of ammunition. They also discovered plastic sandwich bags and over $1,000 in cash.

776 S.E.2d 762

At the suppression hearing, Evans conceded that the officers had probable cause to believe that marijuana was in the apartment. Id. at 103.² He argued, however, that his consent, as well as his mother's, should be deemed invalid because the officers entered their apartment without a proper showing of exigent circumstances.

290 Va. 282

According to Evans, the police, by announcing their presence and their awareness of a heavy odor of marijuana, created the exigency wholly by police action. Evans concluded the suppression argument with the assertion that the police officers “wholly set up” the circumstances in which “foreseeable evidence would be destroyed.”³

Evans cited United States v. Mowatt, 513 F.3d 395 (4th Cir.2008), as authority for his position. Evans failed to mention, however, that the United States Supreme Court in Kentucky v. King, 563 U.S. 452, ––––, 131 S.Ct. 1849, 1859–62, 179 L.Ed.2d 865 (2011), expressly rejected Mowatt , along with a host of other lower court opinions that adopted the so-called “police-created exigency doctrine” and expanded the exceptions to exigent circumstances beyond “actual or threatened violation[s] of the Fourth Amendment” by police. Neither the Commonwealth nor the trial court corrected Evans on this point.

The trial court denied Evans' motion to suppress, holding that his consent, as well as his mother's, was voluntarily and freely given. Evans then made a conditional plea of guilty to charges of cocaine distribution and unlawful possession of a firearm while in possession of cocaine. The guilty pleas were conditioned upon the preservation of Evans' right to appeal the trial court's adverse ruling on his motion to suppress.

In a per curiam order, a judge of the Court of Appeals denied Evans' petition for appeal, stating that “on this record, we cannot say the trial court's factual finding that appellant voluntarily consented to the search was plainly wrong.”Evans v. Commonwealth, Record No. 1965–13–1, slip op. at 4 (Apr. 24, 2014) (unpublished). Upon further review, a three-judge panel of the Court of Appeals agreed that the petition for appeal should be denied. Evans v. Commonwealth, Record No. 1965–13–1, slip op. at 1 (July 22, 2014) (unpublished). Evans now appeals to us, claiming both the trial court and the Court of Appeals erred.

290 Va. 283

II.

We see no need to address the attenuation principle as it relates to consensual searches. See generally Warlick v. Commonwealth, 215 Va. 263, 267, 208 S.E.2d 746, 749 (1974) (finding connection between the illegality and consensual confession “so attenuated ... as to dissipate the taint”). In this case, there was no predicate illegality. Probable cause and exigent circumstances authorized the warrantless entry by the officers into the apartment—thus undermining the essential first premise of Evans' challenge to the validity of the later consensual search.⁴

776 S.E.2d 763

A.

No fixed legal definition fully captures the meaning of exigent circumstances. Police officers find themselves in a myriad of situations with varied fact patterns. No court could provide an exhaustive enumeration of factors that would distinguish circumstances that qualify as exigent from those that would not.⁵ The best that we can do is to consider a few commonalities and then make a practical, commonsense judgment.

One rather obvious commonality is that someone with illegal drugs would prefer not to be caught with them. That desire is at its apogee when the police are right on the verge of doing just that. Scores of cases have observed that one possessing illegal drugs in an apartment or home would quite likely try to get rid of them upon

290 Va. 284

realizing that the police are at the front door inquiring about the distinct odor of the drugs coming from inside.⁶

The Fourth Circuit Court of Appeals has twice addressed this exact scenario. In United States v. Grissett, 925 F.2d 776 (4th Cir.1991), uniformed police officers knocked on a door of a motel room and identified themselves as police. When the door opened, they “smelled the odor of marijuana wafting through the open doorway” of the motel room. Id. at 778. Because it was obvious that everyone in the room now knew the police were aware of the marijuana, it was equally obvious to the officers that the moment they closed the door, those in the room would do whatever they could to get rid of any illegal drugs they possessed. The officers then entered the motel room and discovered marijuana and cocaine.

In response to the assertion that exigent circumstances did not justify the warrantless entry, the Fourth Circuit flatly disagreed. “Exigent circumstances can arise when the evidence might be destroyed before a search warrant could be obtained.” Id. Because the “police had identified themselves” to the occupants of the room, “an officer could reasonably conclude that the occupants of the room would attempt to dispose of the evidence before the police could return with a warrant. This is especially true in the case of an easily disposable substance like drugs.” Id. After all, Grissett emphasized, police officers need not “produce...