Jefferson v. Com.

• Court: Virginia Court of Appeals
• Writing for the Court: ELDER
• Citation: Jefferson v. Com., 497 S.E.2d 474, 27 Va.App. 1 (Va. App. 1998)
• Decision Date: 31 March 1998
• Docket Number: No. 0716-97-2,0716-97-2
• Parties: Kenneth O'Neal JEFFERSON v. COMMONWEALTH of Virginia. Record

Page 474

497 S.E.2d 474

27 Va.App. 1

Kenneth O'Neal JEFFERSON v. COMMONWEALTH of Virginia.

Record No. 0716-97-2.

Court of Appeals of Virginia Richmond.

March 31, 1998.

Steven D. Benjamin (Betty Layne DesPortes; Benjamin & DesPortes, on briefs), Richmond, for appellant.

Marla Graff Decker, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and ELDER and OVERTON, JJ.

ELDER, Judge.

Kenneth O'Neal Jefferson (appellant) appeals his conviction of possession of cocaine in violation of Code § 18.2-250. He contends the trial court erred when it denied his motion to suppress (1) evidence obtained during a search of his person on the night of his arrest and (2) an incriminating statement he made to police shortly after his arrest. For the reasons that follow, we reverse and remand.

I. FACTS

At about 6:00 p.m. on July 25, 1996, Officer Jerome D. Hoyt of the Henrico County Police Department received information from a known informant that three people were selling cocaine "at the corner of Second and Virginia" near 101 North Virginia Avenue. The informant identified one of the three sellers as "Kenny 'Boo' Jefferson" and described him as

a black male ... about five ten or five eleven inches tall, thin build, short cropped hair, had big eyes, two gold teeth, wearing a gr[a]y shirt, long blue jeans, and a gold chain around his neck.

The informant told Officer Hoyt that he had seen "Kenny 'Boo' Jefferson" exchange money for "actual crack cocaine" several times. Officer Hoyt had known this informant for about a month after arresting him for a misdemeanor charge, which was still pending. The informant was seeking to help himself on the misdemeanor charge by cooperating with the police.

After completing his phone call with the informant, Officer Hoyt called a second known informant and asked him to "go by [101 North Virginia Avenue] to see what was going on." The second informant called Officer Hoyt a little after 6:30 p.m. and told him that he saw "Kenny 'Boo' " and two other individuals standing on the corner of Second and Virginia in front of 101 North Virginia Avenue. The second informant stated that these three individuals had "cocaine on their person and for sale" and that he witnessed "Kenny 'Boo' " complete at least one sale of crack cocaine. The second informant's description of "Kenny 'Boo' " matched the description of "Kenny 'Boo' Jefferson" given by the first informant. Officer Hoyt had known the second informant for "approximately three or four months." The second informant had a pending traffic charge against him that was punishable by incarceration and was cooperating with the police in several matters in order to obtain leniency in the prosecution against him. Officer Hoyt had worked with the second informant "maybe a dozen times" and information provided by this informant had led to several arrests but no actual convictions as of July 25.

Based on the information provided by the two informants, Officer Hoyt's supervisor initiated an operation to locate the three individuals who were purportedly selling cocaine in front of 101 North Virginia Avenue. The police department assembled a team that included both "strike force" officers and uniformed officers. Prior to leaving the police department, Officer Hoyt conveyed the information provided by the informants to the officers involved in the operation, which included Officer L.D. Harpster. The police did not obtain either arrest warrants for the three individuals spotted at the corner of Second and Virginia or a search warrant for the house at 101 North Virginia Avenue.

Officer Harpster, Officer Hoyt, and the other officers involved in the operation arrived at the corner of Second and Virginia at 10:05 p.m. Officer Harpster testified that, by the time he exited his vehicle, several officers had already proceeded to the back of the house at 101 North Virginia Avenue. Officer Harpster then heard some of these officers "yelling," and he walked to the back of the house to investigate this "commotion."

When the officer arrived, appellant was inside the house at 101 North Virginia Avenue, which was his residence. Appellant heard a "commotion" from outside and walked to his back door. When appellant opened his back door, he saw "a whole bunch of police outside [his] house ... in [the] back yard."

At about this time, Officer Harpster saw appellant and realized that he matched the description of "Kenny 'Boo' Jefferson" given by Officer Hoyt. Appellant was standing outside of the house "right in front" of the back door. Officer Harpster approached appellant, "put him on the ground[,] ... put handcuffs on him and took him into custody." The record does not indicate whether appellant had moved from his location by his back door prior to being taken into custody by Officer Harpster. Although he had "no reason" to suspect that appellant was armed, Officer Harpster patted down appellant for weapons. The pat-down, which the record established was not a "full" search of appellant's person, yielded a "small bottle of liquor" but no incriminating evidence. Appellant later testified that, at this point, Officer Harpster told him he was under arrest. Officer Harpster later testified that he made no such statement to appellant.

Officer Hoyt approached appellant following the pat-down by Officer Harpster. Officer Hoyt told appellant that the police had received information that he was selling drugs and asked appellant, "Do you mind if I search you for drugs?" Appellant replied, "You might as well, because he's already done it." Officer Hoyt searched appellant and retrieved .9 of a gram of crack cocaine and $158 in cash from appellant's "watch pocket." After seizing the cocaine and cash from appellant's person, Officer Hoyt told appellant he was under arrest. Appellant was placed in the custody of Officer Akita Brown, who transported appellant to "Dabbs House." At about 11:05 p.m., Officer Hoyt arrived at Dabbs House and informed appellant of his Miranda rights. Appellant signed a "rights waiver form" and made an incriminating statement to the police.

Appellant was charged with possessing cocaine with intent to distribute in violation of Code § 18.2-248. Prior to his trial, appellant moved the trial court to suppress the cocaine and cash seized by Officer Hoyt as well as his incriminating statement. Following a hearing, the trial court denied appellant's motion. It reasoned:

The Court finds that the police had probable cause to arrest [appellant], based on the information from the two informants.... In this case, the Court finds that [appellant] was not in his house when he was arrested, but he was outside in the yard and that Harpster identified him as the person who fit the description. So the Court finds they had probable cause to arrest him and, of course, the search was incident to the arrest.

Appellant was subsequently convicted of possession of cocaine in violation of Code § 18.2-250.

II. WARRANTLESS SEARCH INCIDENT TO ARREST

Appellant contends the trial court erred when it concluded that Officer Hoyt's search of his person was conducted incident to a lawful arrest. Appellant argues that Officer Harpster's arrest of him was unlawful because (1) Officer Harpster lacked probable cause to believe that appellant had committed a criminal offense and (2) the arrest was executed within the "curtilage" of his home without a warrant. Although we find that Officer Harpster possessed probable cause to arrest appellant, we hold that the warrantless arrest of appellant in the curtilage of his home was unlawful.

Generally, evidence obtained by searches and seizures in violation of a defendant's Fourth Amendment rights is inadmissible at a criminal trial. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961); Weeks v. United States, 232 U.S. 383, 391-93, 34 S.Ct. 341, 344, 58 L.Ed. 652 (1914). At a hearing on a defendant's motion to suppress evidence allegedly obtained in violation of the Fourth Amendment, the defendant has the burden of establishing standing by proving that he had a reasonable expectation of privacy in the place searched, Barnes v. Commonwealth, 234 Va. 130, 135, 360 S.E.2d 196, 200 (1987) (citing Rakas v. Illinois, 439 U.S. 128, 131 n. 1, 99 S.Ct. 421, 424 n. 1, 58 L.Ed.2d 387 (1978)), and the Commonwealth has the burden of proving that the relevant searches or seizures 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). We review the trial court's findings of historical fact only for "clear error," but we review de novo the trial court's application of defined legal standards to the particular facts of a case, including determinations of probable cause. See Shears v. Commonwealth, 23 Va.App. 394, 398, 477 S.E.2d 309, 311 (1996); see also Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996).

In this case, Officer Hoyt recovered the cash and cocaine from appellant's person during a warrantless search that followed Officer Harpster's warrantless "arrest." ¹ Although searches conducted without a judicially-issued warrant are per se unreasonable under the Fourth Amendment, see Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) (citations omitted), one of the established exceptions to the warrant requirement of the Fourth Amendment is for a "search incident to a lawful arrest." United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 471, 38 L.Ed.2d 427 (1973); see also Chimel v. California, 395 U.S. 752, 762-63...