Hill v. Commonwealth

• Decision Date: 09 October 2012
• Docket Number: Record No. 1828-11-3
• Court: Virginia Court of Appeals
• Parties: KEITH LAMONTE HILL v. COMMONWEALTH OF VIRGINIA

KEITH LAMONTE HILL v. COMMONWEALTH OF VIRGINIA

Record No. 1828-11-3

COURT OF APPEALS OF VIRGINIA

OCTOBER 9, 2012

UNPIBLISHED

Present: Judges Elder, Beales and Senior Judge Willis

Argued at Salem, Virginia

MEMORANDUM OPINION^* BY

JUDGE LARRY G. ELDER

FROM THE CIRCUIT COURT OF FRANKLIN COUNTY

William N. Alexander, II, Judge

David A. Furrow (Allen (A.J.) Dudley, Jr.; Melissa P. Keen;

Furrow & Dudley, P.C., on briefs), for appellant.

Virginia B. Theisen, Senior Assistant Attorney General

(Kenneth T. Cuccinelli, II, Attorney General, on brief), for

appellee.

Keith Lamonte Hill (appellant) appeals from his convictions for two counts of grand larceny, entered upon his conditional pleas of guilty.¹ On appeal, he argues the trial court erroneously denied his motion to suppress evidence obtained using a global positioning system device (GPS) placed on his car. He contends that placement and use of the GPS without a warrant or exigent circumstances violated Code § 18.2-146, which prohibits tampering with a motor vehicle, and infringed his reasonable expectation of privacy, both of which rendered the actions of police an illegal seizure and search in violation of the United States and VirginiaConstitutions.² We assume without deciding, based on United States v. Jones, ___ U.S. ___, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012), that the placement and use of the GPS without a warrant constituted an unreasonable search or seizure. Nevertheless, we conclude evidence obtained from independent sources provided probable cause for appellant's arrest and the accompanying search of his vehicle for a crime committed only hours earlier. Thus, we hold the trial court did not err in refusing to suppress the challenged evidence, and we affirm appellant's convictions.

I.

On appeal of a ruling denying a motion to suppress, an appellant "has the burden to show that, considering the evidence in the light most favorable to the Commonwealth, the trial court's denial of the suppression motion constituted reversible error." McCain v. Commonwealth, 275 Va. 546, 552, 659 S.E.2d 512, 515 (2008). Our examination of this issue "presents a mixed question of law and fact that we review de novo on appeal. In making such a determination, we give deference to the factual findings of the trial court and independently determine whether the manner in which the evidence was obtained [violated] the Fourth Amendment." Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002) (citations omitted). The determination of whether a Fourth Amendment violation has occurred is based on "'an objective assessment of the officer's actions' . . . and not on the officer's actual state of mind at the time the challenged action was taken." Maryland v. Macon, 472 U.S. 463, 470-71, 105 S. Ct. 2778, 2783, 86 L. Ed. 2d 370, 378 (1985) (quoting Scott v. United States, 436 U.S. 128, 136, 98 S. Ct. 1717, 1723, 56 L. Ed. 2d 168, 177 (1978)).

A. WARRANTLESS USE OF THE GPS

In Jones—decided well after a GPS device was used to track the movements of appellant in this case and well after he was arrested, partially as a result of what the GPS revealed—the United States Supreme Court held that "the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a 'search' [under the Fourth Amendment]." ___ U.S. at ___, 132 S. Ct. at 949, 181 L. Ed. 2d at 918. Based upon the holding in Jones, we assume without deciding, for purposes of this decision only, that placement of the GPS on appellant's car constituted a warrantless search.

B. THE EXCLUSIONARY RULE

The Fourth Amendment protects against unreasonable searches and seizures but "is silent about how this right is to be enforced. To supplement the bare text, [the United States Supreme Court] created the exclusionary rule, a deterrent sanction that bars the prosecution from introducing evidence obtained by way of a Fourth Amendment violation."³ Davis v. United States, ___ U.S. ___, ___, 131 S. Ct. 2419, 2423, 180 L. Ed. 2d 285, 290 (2011).

Under current Fourth Amendment law, "[e]xclusion is 'not a personal constitutional right,' nor is it designed to 'redress the injury' occasioned by an unconstitutional search." Id. at ___, 131 S. Ct. at 2426, 180 L. Ed. 2d at 293 (quoting Stone v. Powell, 428 U.S. 465, 486, 96 S. Ct. 3037, 3048, 49 L. Ed. 2d 1067, 1083 (1976)). "The rule's sole purpose . . . is to deter future Fourth Amendment violations. . . . Where suppression fails to yield 'appreciable deterrence,' exclusion is 'clearly . . . unwarranted.'" Id. at ___, 131 S. Ct. at 2426-27, 180 L. Ed. 2d at 294 (quoting United States v. Janis, 428 U.S. 433, 454, 96 S. Ct. 3021, 3032, 49 L. Ed. 2d 1046, 1060 (1976)).

Appellant contends that because the officers did not obtain a warrant before attaching the GPS to his vehicle and admitted that information from the GPS was "instrumental" in their decision to obtain search warrants and stop and search appellant's vehicle, all fruits of that stop and search, including appellant's statements, were obtained in violation of the Fourth Amendment and must be excluded. The Commonwealth posits two theories to support affirming the trial court's ruling denying appellant's motion to suppress, the independent source doctrine and the good faith exception to the exclusionary rule. We agree with the Commonwealth that the independent source doctrine supports the trial court's denial of appellant's motion to suppress,⁴ and, therefore, we do not consider the applicability of the good faith exception.

In determining whether evidence is derivative of an illegal act and, therefore, subject to exclusion under the Fourth Amendment as "fruit of the poisonous tree," the question is"'whether[,] granting establishment of the primary illegality, the evidence to which the instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, 455 (1963) (quoting John M. Maguire, Evidence of Guilt 221 (1959)), quoted with approval in Hudson v. Michigan, 547 U.S. 586, 592, 126 S. Ct. 2159, 2164, 165 L. Ed. 2d 56, 65 (2006). Evidence is not "'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police." Wong Sun, 371 U.S. at 487-88, 83 S. Ct. at 417, 9 L. Ed. 2d at 455 (emphasis added); see Hudson, 547 U.S. at 592, 126 S. Ct. at 2164, 165 L. Ed. 2d at 64-65 (observing "but-for causality is only a necessary, not a sufficient, condition for suppression"). The exclusion of evidence "'has always been our last resort, not our first impulse,' and our precedents establish important principles that constrain application of the exclusionary rule." Herring v. United States, 555 U.S. 135, 140, 129 S. Ct. 695, 700, 172 L. Ed. 2d 496, 504 (2009) (quoting Hudson, 547 U.S. at 591, 126 S. Ct. at 2163, 165 L. Ed. 2d at 64). Evidence is obtained by means sufficiently distinguishable to be admissible despite an illegality by the authorities if it is "evidence attributed to an independent source" or "evidence where the connection has become so attenuated as to dissipate the taint." Warlick v. Commonwealth, 215 Va. 263, 266, 208 S.E.2d 746, 748 (1974).

Here, the officers obtained from an independent source, free from any taint, evidence sufficient to provide probable cause to arrest appellant and search his vehicle on September 27, 2010. Probable cause

relates to probabilities that are based upon the factual and practical considerations in everyday life as perceived by reasonable and prudent persons . . . . [P]robable cause exists when the facts and circumstances within the officer's knowledge, and of which he has reasonably trustworthy information, alone are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed.

Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E.2d 833, 836 (1981). "'The substance of all the definitions of probable cause is a reasonable ground for belief of guilt. And this means less than evidence which would justify condemnation or conviction.'" Slayton v. Commonwealth, 41 Va. App. 101, 107, 582 S.E.2d 448, 451 (2003) (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L. Ed. 1879, 1890 (1949)). Thus, evidence sufficient to provide probable cause to arrest for a crime need not be evidence sufficient to convict for that offense. Id. In assessing probable cause, a court may consider the collective knowledge of law enforcement officers acting together and sharing information. Commonwealth v. Smith, 281 Va. 582, 591-92, 709 S.E.2d 139, 143 (2011).

Where police have probable cause to arrest an occupant of a vehicle, officers may search the vehicle at the scene pursuant to that arrest if, inter alia, it is "'reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.'" Arizona v. Gant, 556 U.S. 332, 343, 129 S. Ct. 1710, 1719, 173 L. Ed. 2d 485, 496 (2009) (quoting Thornton v. United States, 541 U.S. 615, 632, 124 S. Ct. 2127, 2137, 158 L. Ed. 2d 905, 920 (2004) (Scalia, J., concurring in the judgment)).

Here, the officers had probable cause to arrest appellant on September 27, 2010, independent of the evidence obtained from the GPS. See, e.g., Virginia v. Moore, 553 U.S. 164, 173-74, 128 S. Ct. 1598, 1605-06, 170 L. Ed. 2d 559, 568-69 (2008) (recognizing constitutional validity of warrantless arrest supported by probable cause); cf. Code § 19.2-81(B) (providing a law enforcement officer "may arrest without a warrant any person who commits any crime in the presence of the officer and any person whom he has reasonable grounds or probable cause to suspect of having committed a felony not in his presence"). The officers' focus on appellant as a suspect "did not begin with the placement of the GPS device on his [vehicle]" on ...