Hayes v. Com., Record No. 3025-97-2.

• Decision Date: 11 May 1999
• Docket Number: Record No. 3025-97-2.
• Citation: 514 S.E.2d 357,29 Va. App. 647
• Parties: Stacy Lamont HAYES, s/k/a Stacey Hayes v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

514 S.E.2d 357

29 Va. App. 647

Stacy Lamont HAYES, s/k/a Stacey Hayes v. COMMONWEALTH of Virginia.

Record No. 3025-97-2.

Court of Appeals of Virginia, Richmond.

May 11, 1999.

Daniel W. Hall, Assistant Public Defender, for appellant.

Steven A. Witmer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: ELDER and BRAY, JJ., and BAKER, Senior Judge.

ELDER, Judge.

Stacey Hayes (appellant) appeals from his bench trial conviction for possession of cocaine and forged United States currency. On appeal, he contends the trial court erroneously (1) denied his motion to suppress the cocaine, altered U.S. banknote, and his statements, (2) admitted the certificate of analysis into evidence in the absence of a sufficient showing of chain of custody and (3) held the evidence, in the absence of the certificate of analysis, was sufficient to support appellant's conviction for possession of cocaine. For the reasons that follow, we hold the trial court erred in denying the motion to suppress, and we reverse appellant's convictions.¹

I. FACTS

On October 31, 1996, at about 3:45 p.m., Officer R.D. Lowery of the Petersburg Police Department participated in the execution of a search warrant for a residence at 125 McKeever Street in Petersburg, which was described as the right half of a duplex. The warrant described the items to be seized as "cocaine, books, money, records, scales, any other paraphernalia used and/or distribution of cocaine in the support and sale of cocaine." Lowery confirmed that the target of the search was "[c]ocaine inside the residence." The warrant did not "identify the name of any [specific] person to be searched" and did not "mention ... that any persons [in general] [were] to be searched."

The accompanying affidavit indicated that an informant made a controlled purchase of cocaine "from the subjects at [the] residence" and that cocaine was "still present" when the informant left the residence. The affidavit did not indicate when the purchase was made, and it did not describe any of the people present except to say that "one [was] the resident."² Lowery did not know who owned the residence.

When Lowery arrived at the residence with the entry team, appellant was sitting on the porch of the duplex on a couch located directly beside the entrance to number 125 and beneath its front window. Lowery described the porch as running the length of the front of the duplex with a set of steps on either end. Lowery did not know appellant and did not know, other than by appellant's presence, whether appellant had any connection to the residence to be searched.

Lowery "ordered appellant to the ground at gunpoint ... [and] handcuffed him for safety reasons" until the rest of the entry team could secure the inside of the residence. Lowery had observed appellant as Lowery exited the police van and approached the porch and had not seen appellant engage in any suspicious behavior. Lowery testified, "It's pretty much standard policy when we go into a residence here in the City everybody goes down, everybody gets cuffed and patted down just for weapons for safety reasons." Lowery further explained that "when you're dealing with a search warrant ..., especially with narcotics, you always have the possibility of guns."

After Lowery handcuffed appellant, he watched the window as the entry team went in and began to secure the inside of the residence. The entry team consisted of "approximately 10 or 11" police officers, with Officer Lowery stationed at the front door, "somebody on the back door," and the rest of the officers inside to secure the premises and conduct the search. The officers found three people inside the residence. Lowery testified that he did not know for sure when the residence was "secure," but that with "[t]hat many [officers] on the inside," he was "pretty sure it was secure" and did not wait for confirmation before he stood appellant up and advised that "[he] was going to pat [appellant] down for weapons."

Regarding the pat-down, Lowery first testified, "I hit an item, once. I squeezed it once and I come off of it, it was in my mind to be cocaine. I asked [appellant] what it was, he made no statement." In clarifying the circumstances surrounding his discovery, Lowery testified that while patting appellant's shirt pocket with an open palm, he felt "a lump" and "suspected [appellant] had something in his pocket." Lowery explained further, "I felt something in his pocket, [and] to verify what it was, to make sure I wasn't missing anything, I squeezed it once and I came right off of it." Lowery then said, "I came off of it because I knew what it was. It was pretty obvious [that it was cocaine]." Lowery then retrieved the item, which he described as "nine zips of crack cocaine." Lowery did not testify that he believed the lump could have been a weapon before he squeezed it, and he never clearly testified that he believed the lump to be cocaine before he squeezed it.

Upon finding the suspected cocaine, Lowery advised appellant he was under arrest and Mirandized him. Appellant said, "it was for personal use, it was for himself, he wasn't selling it." In a search incident to arrest, Lowery found a pager and $11, including a dollar bill which someone had altered to look like a five-dollar bill by taping photocopied corners of a five dollar bill onto the four corners of the dollar bill.

Appellant moved to suppress on the ground that the frisk violated the Fourth Amendment. Appellant contended that the warrant, which was silent regarding the right to search people on the premises, did not authorize Lowery to frisk him and that Lowery had no reasonable, articulable suspicion that he was armed and dangerous in order to justify a frisk. Appellant also contended that even if the frisk for weapons was appropriate, Lowery had no basis for believing he had found a weapon when he felt the lump in appellant's pocket and, therefore, was not permitted to manipulate the item to determine what it was.

The trial court said it did not "have any problem" with the "plain feel" seizure of the cocaine, stating that "[t]he officer is trained in this sort of thing, when he feels it and he's pretty sure what it is, and he squeezed it to confirm it, he had sufficient cause to make that." However, it stated expressly, "I'm not making a finding at this point" and gave the parties an opportunity to file memoranda on those issues.

At the time scheduled for sentencing, the court stated:

I'm going to overrule the motion [to suppress because] although the [appellant] was not in the house that was scheduled to be searched, he was on the couch on the front porch. He could easily have been a lookout for the people inside. And therefore there's a threat of a danger that did exist and is sufficient to establish probable cause for a search.... Further[,] danger existed and the probable cause existed because the magistrate had issued the search warrant.

II. ANALYSIS

At a hearing on a defendant's motion to suppress, the Commonwealth has the burden of proving that a warrantless search or seizure did not violate the defendant's Fourth Amendment rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989); Alexander v. Commonwealth, 19 Va.App. 671, 674, 454 S.E.2d 39, 41 (1995). On appeal, we view the evidence in the light most favorable to the prevailing party, granting to it all reasonable inferences fairly deducible therefrom. See Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991). "[W]e are bound by the trial court's findings of historical fact unless `plainly wrong' or without evidence to support them[,] and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers." McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1659, 134 L.Ed.2d 911 (1996)). However, we review de novo the trial court's application of defined legal standards such as probable cause and reasonable suspicion to the particular facts of the case. See Shears v. Commonwealth, 23 Va.App. 394, 398, 477 S.E.2d 309, 311 (1996); see also Ornelas, 517 U.S. at 699, 116 S.Ct. at 1659.

Appellant contends Officer Lowery's detention and search of his person pursuant to the authority of the search warrant for the duplex was unreasonable under the United States and Virginia Constitutions. The Commonwealth argues that the detention was justified as a frisk for safety reasons and that appellant's presence on the porch of the residence for which other officers were executing a search warrant for narcotics provided reasonable suspicion that appellant was engaged in criminal activity. The trial court ruled that the probable cause which provided the basis for issuance of the warrant to search the premises for narcotics and the associated "threat of ... danger" provided "probable cause for a search" of appellant. For the reasons that follow, we hold that the search was unlawful under the facts of this case.

A. PROBABLE CAUSE TO SEARCH APPELLANT'S PERSON

We hold first that neither the issuance of the search warrant nor the risk of danger to the officers during its execution provided Officer Lowery with probable cause to conduct a full search of appellant under the facts of this case.³ We are unaware of any controlling precedent which provides that a warrant to search only a specified private residence, and not the people found therein, for narcotics automatically carries with it the blanket authority to conduct full searches of those people present either for narcotics or weapons.⁴ Furthermore, we conclude that such a holding would be contrary to existing constitutional precedent.⁵

The Fourth Amendment to the United States Constitution provides as follows:

The right of the people to be secure in their persons, houses, papers, and effects,

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