Gibson v. Com.

• Decision Date: 18 December 2007
• Docket Number: Record No. 0564-06-1.
• Citation: 50 Va. App. 744,653 S.E.2d 626
• Parties: Alonzo GIBSON, Jr. v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

653 S.E.2d 626

50 Va. App. 744

Alonzo GIBSON, Jr. v. COMMONWEALTH of Virginia.

Record No. 0564-06-1.

Court of Appeals of Virginia, Chesapeake.

December 18, 2007.

Charles E. Haden, for appellant.

Joshua M. Didlake, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: KELSEY, HALEY and BEALES, JJ.

JAMES W. HALEY, JR., Judge.

I. Introduction

Alonzo Gibson, Jr., appeals his convictions from the Circuit Court for the City of Newport News for distribution of or possession with intent to distribute controlled substances on or near a school in violation of Code § 18.2-255.2 and possession of marijuana with intent to distribute in violation of Code § 18.2-248.1(a)(2). Gibson contends the police violated his constitutional rights by using a flashlight to illuminate contraband in his pocket during night hours. Finding no error, we affirm.

II. Facts

On October 1, 2004, Officer Hahn of the Newport News Police Department and a state police trooper were patrolling high crime areas. When the officers reached the 200 block of Orcutt Avenue, they looked at a parking lot behind a public housing unit. The time was around 8:00 p.m., and it was dark. Although the parking lot had poor lighting, the officers saw a group of people standing behind the apartment building. The building had a "No Trespassing" sign on it. The officers drove near the group of persons to investigate. As they did so, the group began to disperse.

Officer Hahn stepped out of the car and asked Gibson, who was walking away, how he was. Gibson briefly stopped. Officer Hahn then inquired whether Gibson lived in the apartment complex. Gibson responded affirmatively. Officer Hahn asked Gibson where he lived in the building. In response, Gibson turned his back to point to an apartment over his shoulder. As he did this, Officer Hahn scanned Gibson's body with a flashlight. Gibson's right front pocket had a bulge so that the pocket remained open. Officer Hahn was able to shine the flashlight into the pocket and see a green leafy substance he suspected was marijuana based on his experience. Officer Hahn then detained Gibson and retrieved the bag from Gibson's pocket. Eight smaller bags were then discovered. Officer Hahn did not touch Gibson until he detained him. At trial, Officer Hahn acknowledged he had no reasonable suspicion of criminal activity before the flashlight search.

A grand jury indicted Gibson for distribution of or possession with intent to distribute controlled substances on or near a school in violation of Code § 18.2-255.2 and possession of marijuana with intent to distribute in violation of Code § 18.2-248.1(a)(2) on September 12, 2005. Gibson filed a motion to suppress on October 12, 2005.¹ The motion to suppress was heard as part of a bench trial on December 13, 2005. The circuit court denied the motion and convicted Gibson on both charges.

III. Analysis

Gibson argues the use of a flashlight by a police officer constitutes an unconstitutional search when that light renders contraband in a pocket that is in plain view during daylight hours visible during night hours.² We disagree.

In reviewing the circuit court's denial of Gibson's motion to suppress, this Court views the facts in the light most favorable to the Commonwealth. Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980). The Court is "`bound by the trial court's findings of historical fact unless `plainly wrong' or without evidence to support them.'" King v. Commonwealth, 49 Va.App. 717, 720, 644 S.E.2d 391, 392-93 (2007) (quoting McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc)). However, since the constitutional validity of a search involves both factual and legal questions, we "independently determine whether the manner in which the evidence was obtained meets the requirements of the Fourth Amendment." Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002). Gibson has the burden of showing reversible error on appeal. Bolden v. Commonwealth, 263 Va. 465, 470, 561 S.E.2d 701, 704 (2002).

The Fourth Amendment of the United States Constitution provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. The key inquiry regarding whether the Amendment affords protection is "whether a person has a `constitutionally protected reasonable expectation of privacy.'" Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 1740-41, 80 L.Ed.2d 214 (1984) (quoting Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). The plain view doctrine provides that no reasonable expectation of privacy attaches to objects exposed to plain view. Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301, 2306, 110 L.Ed.2d 112 (1990). 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. Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 2136-37, 124 L.Ed.2d 334 (1993).

Case law concerning whether police use of artificial light to bring objects into plain view constitutes a search under the Fourth Amendment has a long history. In United States v. Lee, 274 U.S. 559, 560, 47 S.Ct. 746, 747, 71 L.Ed. 1202 (1927), a Coast Guard vessel followed a boat suspected of illegal activity. The Coast Guard boat aimed a searchlight at the boat and ordered the men aboard to surrender. Id. at 561, 47 S.Ct. at 747. In an opinion by Justice Brandeis, the Court held the use of a searchlight to search the boat did not constitute a search for constitutional purposes. Id. at 563, 47 S.Ct. at 748. The Court stated: "[N]o search on the high seas is shown. The testimony of the boatswain shows that he used a searchlight. . . . Such use of a searchlight is comparable to the use of a marine glass or a field glass. It is not prohibited by the Constitution." Id.

The Supreme Court next addressed the use of a flashlight to aid an officer's vision in Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality opinion). In that case, a police officer named Tom Maples was working at a routine checkpoint in Fort Worth, Texas. Id. at 733, 103 S.Ct. at 1539. Maples stopped a car driven by Brown and asked for his driver's license. Id. Maples looked into the car with the aid of a flashlight and saw an opaque balloon tied near the top. Id. He suspected the balloon contained narcotics. Id. at 734, 103 S.Ct. at 1539. Maples altered his position to the car to gain a better view of the glove compartment, which Brown had opened to look for his driver's license. Id. Maples saw an open bag of balloons, loose white powder, and several plastic vials. Id. Maples and another officer arrested Brown and seized the suspected drugs, which later tested as heroin. Id. at 734-35, 103 S.Ct. at 1539. The Supreme Court cited Lee and stated that "[i]t is likewise beyond dispute that Maples' action in shining his flashlight to illuminate the interior of Brown's car trenched upon no right secured to the latter by the Fourth Amendment." Id. at 739-40, 103 S.Ct. at 1542.

Another relevant case from the United States Supreme Court is United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). Law enforcement agents there shined a flashlight through netting covering a barn gate and discovered a narcotics laboratory. Id. at 298, 107 S.Ct. at 1138. A majority of the Court cited Brown and Lee to find no Fourth Amendment violation. Id. at 305, 107 S.Ct. at 1141. The Court stated that "the officers' use of the beam of a flashlight, directed through the essentially open front of respondent's barn, did not transform their observations into an unreasonable search within the meaning of the Fourth Amendment." Id.

This Court has briefly considered police use of flashlights in the context of automobile searches. In Derr v. Commonwealth, 6 Va.App. 215, 217, 368 S.E.2d 916, 917 (1988), a police officer used a flashlight to see inside a parked vehicle. Citing Dunn and Brown, the Court stated this "implicates no fourth amendment concerns." Id. at 220, 368 S.E.2d at 919. The Court went on to hold that while the officer later made an unconstitutional entry into the vehicle and therefore evidence taken as a result of the entry must be suppressed, the officer could testify regarding his observations with the flashlight before the illegal entry. Id. at 222, 368 S.E.2d at 919-20. This was because "`[t]he use of the flashlight did not preclude application of the `plain view' doctrine.'" Id. at 222, 368 S.E.2d at 919 (quoting Effler v. Rose, 535 F.2d 980, 981 (6th Cir.), cert. denied 429 U.S. 982, 97 S.Ct. 496, 50 L.Ed.2d 591 (1976)). The constitutionality of flashlight searches similarly arose in Wells v. Commonwealth, 6 Va.App. 541, 371 S.E.2d 19 (1988). In a one sentence holding citing Brown, the Court held police did not violate the Fourth Amendment by using flashlights to observe the interior of a car. Id. at 555, 371 S.E.2d at 26. Finally, in Taylor v. Commonwealth, 10 Va.App. 260, 265, 391 S.E.2d 592, 595 (1990), this Court cited Derr to find an officer shining a flashlight into a truck bed did not violate the Constitution.

Other courts addressing the use of artificial light by police officers accord with this precedent by permitting the officers' actions under the plain view doctrine. Thus, the federal circuit court in Marshall v. United States, 422 F.2d 185, 189 (5th Cir.1970), stated:

When the circumstances of a particular case are such that the police officer's observation would not have constituted a search had it occurred in daylight, then the fact that the officer used a flashlight to pierce the nighttime darkness does not transform his observation into a search. Regardless of the time of day or night, the plain view rule...