Gregory v. Com.

• Decision Date: 01 November 2005
• Docket Number: Record No. 0280-04-2.
• Citation: 621 S.E.2d 162
• Parties: Shawn Delano GREGORY v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

621 S.E.2d 162

Shawn Delano GREGORY v. COMMONWEALTH of Virginia.

Record No. 0280-04-2.

Court of Appeals of Virginia, Richmond.

November 1, 2005.

COPYRIGHT MATERIAL OMITTED

Roger D. Groot (Carl C. Muzi, on briefs), for appellant.

Paul C. Galanides, Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.

Present: ELDER, BUMGARDNER, JJ, and STEPHENS, Retired Judge.^*

RUDOLPH BUMGARDNER, III, Judge.

Shawn Delano Gregory was indicted for capital murder, the lesser degrees of murder, abduction, felony eluding police, and three counts of possession with intent to distribute an illegal drug. The drug charges were set for trial after the homicide trial. A jury convicted the defendant of second-degree murder and felony eluding police and sentenced him to 40 years in prison, which the trial court imposed. The defendant then entered a conditional plea of guilty to the drug charges, and the trial court imposed an additional sentence of 32 years with 16 years suspended in accordance with a plea agreement.

Before the homicide trial, the defendant filed a motion to suppress from both trials the evidence recovered during a search of his apartment and a motion in limine to exclude evidence of drugs and unadjudicated bad acts from the homicide trial. The trial court denied both motions. After the homicide trial, the defendant renewed his motion to suppress. When the trial court denied it, he entered a conditional plea of guilty and preserved his right to appeal that ruling. The cases were consolidated for appeal.

We granted an appeal on two of the issues raised by the defendant in his petition for appeal. As phrased by the defendant the issues were: did the search warrants obtained by the Commonwealth so lack an indicia of probable cause as to render official belief in its existence unreasonable¹ and violate his Constitutional rights against illegal search and seizure; and did the trial court err in not prohibiting the Commonwealth from introducing into the murder trial the evidence seized from his residence. We hold the trial court did not err in denying the motions and affirm.

At 2:23 a.m. January 29, 2003, Trooper Michael Blanton stopped a BMW at the Gaskins Road exit ramp for speeding on Interstate 64. A video camera mounted in the trooper's vehicle and a microphone on his person recorded the events. The trooper obtained the driver's operator's license and vehicle registration. When the trooper began conducting field sobriety tests, the driver began to get back in his car. The trooper jumped inside the car to keep the defendant from putting it in gear. The car accelerated rapidly while the trooper struggled with the driver. After traveling about 100 yards, the car left the road, rolled over several times, and landed on the trooper killing him.

At 2:37 a.m. Henrico police officers came upon the wrecked BMW. They saw no one near it, but a passerby reported a male running from the scene. Two officers apprehended the defendant not far from the wreck. He had a broken arm and other injuries. The officers arrested the defendant and took him to the Medical College of Virginia hospital. The defendant refused to give his name to the officers or the hospital staff and refused to sign the hospital forms. He said he had been in an automobile accident but never admitted driving and denied hitting a police officer.

The police found the defendant's operator's license and vehicle registration at the scene. They used the photograph on the license to confirm that the man taken to the hospital was the defendant. From the videotape in the trooper's vehicle, the police heard the defendant tell the trooper he worked for A & W Auto Sales, which owned the BMW. They contacted the owner of that company, who denied both claims.

Police then determined that the independent dealer license plates displayed on the BMW were the proper plates for the vehicle. They were registered to Quick Enterprises, LLC, and the vehicle had not been reported stolen. The Department of Motor Vehicles records divulged Quick Enterprises, LLC was a licensed corporation with its registered office on Chamberlayne Avenue, and the State Corporation Commission listed the defendant as its registered agent. The police went to the address and spoke to the owner of the building. He reported that the defendant operated Quick Enterprises, had inquired about renting office space, but had not rented from him.²

A computer data search revealed that the defendant rented an apartment at 4206 Whitford Court #1608.³ The apartment was one mile from the crime scene and in the direction the defendant was headed when arrested. Officers obtained his current rental contract and verified with the manager that the defendant was a current resident. The maintenance man for the complex told police he had seen the defendant and the BMW at the apartment.

The next day at 5:36 p.m., state police applied for a warrant to search the Whitford Court apartment. The affidavit recited the facts of the traffic stop, the trooper's death, the defendant's arrest, and his identification. The application requested a warrant to search the apartment to "connect Shawn D. Gregory to the BMW sedan with license plate JCG-8714." Specifically, it sought "all papers, documents, titles, or photographs showing usage or ownership of this BMW."⁴

The magistrate issued the search warrant, and police began executing it that evening. During the initial search, they observed drugs. The police then obtained an additional warrant permitting a search of the apartment for drugs and contraband.⁵ During execution of the second warrant, they seized $600,000 worth of heroin, cocaine, and marijuana as well as $125,207 in cash.

The defendant's motion to suppress raised three issues: the warrant lacked probable cause because the affiant had no basis to know that documents existed or would be found in the apartment; the warrant lacked the requisite particularity necessary to obtain a warrant; and the execution of the warrant exceeded its permissive scope. At the suppression hearing,⁶ the defendant argued that the affidavit lacked probable cause. He argued the ownership of the BMW was irrelevant and the officers were on a fishing expedition to find evidence of other crimes in retaliation for the trooper's death. The defendant maintained that nothing linked the vehicle to any criminal activity and nothing indicated criminal activity would be discovered in the apartment.

The crucial question in determining whether a search warrant is supported by probable cause is whether the item to be seized is likely to be found in the place to be searched. United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir.1993). When reviewing a magistrate's determination of probable cause, we presume he properly performed his duties. United States v. Blackwood, 913 F.2d 139, 142 (4th Cir.1990). We review the affidavit in a common sense manner, not in a hypertechnical fashion. Id. We only consider whether the magistrate had a "`substantial basis ... for concluding' that probable cause existed." Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) (citation omitted).

The defendant concedes that the facts in the affidavit were credible, that the apartment searched was in fact his residence, and that the magistrate was justified in concluding that he had committed several crimes. He claims, however, that the affidavit failed to state with requisite particularity that documents connecting him to the BMW existed or would be found at his residence.

The magistrate is free "to draw reasonable inferences about where incriminating evidence is likely to be found, based on the nature of the evidence and the type of offense." Gwinn v. Commonwealth, 16 Va.App. 972, 975, 434 S.E.2d 901, 904 (1993) (drugs likely to be kept in residence). "Indeed... a sufficient nexus can exist between a defendant's criminal conduct and his residence even when the affidavit supporting the warrant `contains no factual assertions directly linking the items sought to the defendant's residence.'" United States v. Grossman, 400 F.3d 212, 217 (4th Cir.2005) (each of three search warrants established probable cause to believe drugs would be found at different locations and fact that defendant did not reside there did not invalidate that finding) (citation omitted). In determining whether the affidavit provides a sufficient nexus, "the nexus between the place to be searched and the items to be seized may be established by the nature of the item and the normal inferences of where one would likely keep such evidence." United States v. Anderson, 851 F.2d 727, 729 (4th Cir.1988).

In Anderson, the court upheld a search warrant for the defendant's residence though the affidavit did not link the firearm to the residence. The opinion relied on United States v. Jacobs, 715 F.2d 1343, 1346 (9th Cir.1983) (reasonable for magistrate to conclude clothing would remain at the residence); United States v. Steeves, 525 F.2d 33, 38 (8th Cir.1975) (gun owners generally keep them at home or on their persons); United States v. Rahn, 511 F.2d 290, 293 (10th Cir.1975) (reasonable to assume weapons kept in residences); and Bastida v. Henderson, 487 F.2d 860, 863 (5th Cir.1973) ("[a] very likely place to find [pistols] would either be on the persons of the assailants or about the premises where they lived").

The Fourth Circuit Court of Appeals has consistently held that to establish probable cause the magistrate must "review facts and circumstances as a whole and make a common sense determination of whether `there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" United States v. Williams, 974 F.2d 480, 481 (4th Cir.1992) (quoting Gates, 462 U.S. at 238, 103 S.Ct. at 2332). The facts and circumstances in the affidavit only need to permit a person of reasonable caution to believe the articles sought...