Gonzales v. Commonwealth
| Decision Date | 05 April 2016 |
| Docket Number | Record No. 0950-15-1 |
| Court | Virginia Court of Appeals |
| Parties | VINCENT EDWARD GONZALES v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Decker, AtLee and Senior Judge Frank
Argued at Norfolk, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
James B. Covington for appellant.
Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Vincent Edward Gonzales, appellant, was convicted of cocaine distribution and possession of a firearm while possessing a Schedule I or II controlled substance with the intent to distribute. On appeal, he asserts the trial court erred in denying his motion to suppress. For the reasons that follow, we conclude the trial court erred by denying appellant's motion, reverse appellant's convictions, and remand the case for further proceedings if the Commonwealth be so inclined.1
"In reviewing a trial court's denial of a motion to suppress, '[t]he burden is upon [the defendant] to show that th[e] ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error.'" McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (citation omitted). While we are bound to review de novo the ultimate questions of reasonable suspicion and probable cause, we "review findings of historical fact only for clear error2 and . . . give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas v. United States, 517 U.S. 690, 699 (1996) (footnote added). So viewed, the evidence proved that on October 31, 2013, Officer Benson went to DePaul Hospital to investigate a domestic assault. Appellant's wife, the victim, had a broken nose and injuries to her face as a result of an argument with appellant. He refused to let her out of the car and elbowed her in the face. The victim advised Benson that appellant was at their shared residence3 at a certain address on Fenton Circle. She also told the officer there was marijuana, cocaine, and a pistol at the residence. She gave the officer permission to search the house.
Benson went to the address to investigate the assault and requested Officers R. Johnson and DeMartino to accompany him because the victim indicated a pistol was in the residence. Benson knocked on the front door.4 Appellant came to the door, closed the door behind him, and stepped onto the front porch. Benson explained he was investigating the domestic assault andadvised appellant of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). He then arrested appellant for domestic assault.
Appellant was not wearing shoes at the time of the arrest and indicated he needed to retrieve his shoes from inside the house.
Officer Johnson looked inside the door for the shoes but did not find them. Appellant then told Johnson the shoes were in his brother's room and "[appellant] said that he could take [the officer] to his brother's room to get his shoes." Appellant led Officers Johnson and DeMartino to the brother's room where they found the shoes. The officers then took appellant to the living room where they assisted appellant in putting on his shoes. The officers did not "sweep" the house upon entry.
While retrieving the shoes, appellant told the officers he did not live there, but that his mother owned the house. Officer Benson stepped out of the house to call appellant's mother to verify ownership and to attempt to obtain her consent to search the house.
Officers Johnson and DeMartino remained in the residence with appellant. They asked appellant if anyone else was in the house. Appellant said there was no one else there. The officers had no specific information that anyone else was in the house - they neither saw nor heard anyone.
While appellant was on the couch, Johnson conducted a protective sweep of the rooms down the hallway to insure no one else was in the house. He did not sweep the third bedroom, the garage, or the kitchen. He said he was concerned for officer safety because of the potential firearm in the residence.
The first door to the left was closed. Johnson opened the door and determined it was a child's room. He did not enter or sweep that room. The door to the second room was open. He looked into the room, without entering the room and observed a digital scale with some whitepowder on it. Upon "poking" his head inside to confirm no one was in the room, Johnson noticed a closed closet. The officer opened the closet and, directly in front of him, at eye level, was a black and silver handgun. No one was in the closet. Johnson seized nothing at that time. He left the room and checked another closet off the hallway before returning to the living room.
After speaking with DeMartino, Johnson went outside to talk to Benson. Benson was on the phone with appellant's mother. Once Johnson told Benson that he found drugs, Benson had no further need to obtain the mother's consent.5 Benson then contacted detectives who arrived shortly thereafter.
Detective Allison arrived at the scene and saw appellant seated in a police unit. Johnson advised Allison of the suspected cocaine on the digital scale. Allison took a small sample of the powdery substance and placed it in a field test kit. The substance tested positive for cocaine. He then obtained a search warrant and returned to the residence. Pursuant to the search warrant, Allison recovered drugs, paraphernalia, a handgun, and a digital scale.
Appellant filed a motion to suppress, challenging the legality of the police entry, the protective sweep, and the legality of the search warrant, since the warrant was based on illegally seized material.
The trial court denied the motion, finding: (1) appellant consented to the entry into the residence; (2) appellant willingly led the officers from room to room in search of the shoes: (3) it was objectively reasonable for the officers to believe that the consent to locate appellant's shoes allowed the officers to search until they found the shoes; (4) appellant never objected to the officers' presence once inside the house; (5) the officers had information concerning the presence of a pistol on the premises which, coupled with the possibility of other people being present, gave the officers a reasonable suspicion that a dangerous person might be present and;(6) that despite appellant's denial that anyone else was present, the officers, once lawfully inside, were justified in ensuring the accuracy of appellant's denial.
After the trial judge denied the motion to suppress, appellant entered a conditional guilty plea, and was convicted of the pending charges.
This appeal followed.
Appellant's first assignment of error states, "The Trial Court erred in denying the Defendant's Motion to Suppress the fruits of his warrantless arrest in his residence because the arrest was made without sufficient investigation to establish probable cause for such an arrest." Clearly this assignment is limited to probable cause to arrest, and we are limited to addressing only that issue. However, appellant presents no argument in support of the contention that he was arrested without probable cause. Instead, he cites Jefferson v. Commonwealth, 27 Va. App. 1, 497 S.E.2d 474 (1998), in support of an argument that he was illegally arrested in the curtilage of his home without a warrant. Assignment of Error I does not challenge the legality of the arrest based on an unlawful arrest within appellant's curtilage, as appellant argues in his brief.
In an assignment of error, an appellant must identify the specific error committed by the trial court. See Rules 5A:12(c)(1) and 5A:20(c). Appellant must "'lay his finger on the error' in his [assignment of error]." Carroll v. Commonwealth, 280 Va. 641, 649, 701 S.E.2d 414, 418 (2010) (quoting First Nat'l Bank of Richmond v. William R. Trigg Co., 106 Va. 327, 342, 56 S.E. 158, 163 (1907)) (footnote omitted). An argument that is not addressed by the assignment of error is not subject to review on appeal. Smith v. Commonwealth, 65 Va. App. 288, 302-03, 777 S.E.2d 235, 242-43 (2015).
Here, because the assignment of error does not assert that appellant was illegally arrested in the curtilage of his home, we lack the ability to address appellant's curtilage argument.
By the same token, as appellant has conceded, his brief was fatally deficient with respect to his assertion in the assignment of error that he was arrested without probable cause. He never developed that argument. He only cited "curtilage" cases. He cited no "probable cause" cases nor did he argue the police had no probable cause to arrest him for domestic assault.
Fadness v. Fadness, 52 Va. App. 833, 850, 667 S.E.2d 857, 865 (2008) (alteration in original) (quoting Jones v. Commonwealth, 51 Va. App. 730, 734, 660 S.E.2d 343, 345 (2008)). An appellate court "is not a depository in which the appellant may dump the burden of argument and research." Id. "[S]trict compliance with the rules permits a reviewing court to ascertain the integrity of the parties' assertions which is essential to an accurate determination of the issues raised on appeal." Id. (quoting Jones, 51 Va. App. at 734-35, 660 S.E.2d at 345). Accordingly, when a party's failure to strictly adhere to the requirements of Rule 5A:20(e) is significant, this Court may treat the assignment of error as waived. Id.
Milam v. Milam, 65 Va. App. 439, 465-66, 778 S.E.2d 535, 548 (2015).
Because appellant has not presented any argument in support of his contention that the officers lacked probable cause to arrest him, we conclude his failure to comply with Rule 5A:20(e)...
To continue reading
Request your trial