Kersey v. Commonwealth
| Decision Date | 29 August 2017 |
| Docket Number | Record No. 1324-16-2 |
| Court | Virginia Court of Appeals |
| Parties | JAZMINE N. KERSEY v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Humphreys, Decker and O'Brien
Argued at Richmond, Virginia
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Matthew T. Paulk (Law Office of Matthew T. Paulk, on brief), for appellant.
David M. Uberman, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Jazmine N. Kersey appeals her conviction for possession of a controlled substance in violation of Code § 18.2-250. She contends that the circuit court erred by ruling that the seizure and subsequent search of a folded dollar bill that she passed to a companion were unreasonable under the Fourth Amendment of the United States Constitution. We hold that the seizure of the bill was proper based on the companion's consent. We further hold that the unusual way the bill was folded, combined with additional suspicious circumstances, provided probable cause to arrest the appellant and her companion for possession of contraband. The search of the dollarbill was reasonable as one incident to arrest for that offense. Consequently, we hold that the denial of the motion to suppress was not error, and we affirm the appellant's conviction.1
On March 4, 2015, the appellant visited the Chesterfield County Police Department to file a police report. She was accompanied by a male friend named Tyson.3 While she was there, Officer Christopher Naylor learned that a capias for her arrest was outstanding based on her failure to appear in court in a civil case. Naylor told the appellant that he had to "take her into custody" and "to jail." The appellant asked if she could make a telephone call first, and Naylor said that she could do so.
While the appellant was making the call, Naylor watched her reach into or beneath the fur coat she was wearing and pass something to Tyson. The appellant passed the item in a fashion that exposed only the back of her hand to Officer Naylor and prevented him from seeing what she was holding. Additionally, she passed the item slowly and at "chest level." Once Tyson took the object, Naylor could see that it was a "dollar bill" that was "folded on the sides [the]long way, not just in half," and that it had additional folds. Tyson put the bill in between "some papers and binders" that he was holding. The appellant did not hand any other items to Tyson during that period of time.
Officer Naylor asked the appellant what the item was, and she replied, "[J]ust a dollar." The officer said that he "needed to see" the dollar, and then he "asked" Tyson "if" he could see it. Tyson handed the bill to Officer Naylor. Once he took it, the officer "noticed the way it was folded, specifically." Naylor believed, based on his training and experience during his four years on the police force, that the method of folding was consistent with the way that people "carry their drugs." He indicated that he had personally seen "someone carry their drugs in that fashion" on two or three prior occasions. According to Naylor, he then "open[ed]" the bill, found a white powder determined to be cocaine, and arrested the appellant and her companion for possession of a controlled substance.
Prior to trial, the appellant filed a motion to suppress the evidence. She argued that Officer Naylor's seizure and subsequent search of the dollar bill violated her Fourth Amendment rights. She contended that the way the dollar bill was folded, standing alone, did not provide probable cause to believe it contained contraband and that it was not surprising to think that she would want to give her cash to her companion rather than have it seized upon her arrest on the capias. She further argued that, absent either probable cause and exigent circumstances or a search warrant, the officer lacked legal authority to search an item that she chose to entrust to a third party at the time of her arrest.
The Commonwealth responded that the totality of the circumstances provided the officer with probable cause to believe that the appellant was concealing contraband. The prosecutor also argued that the appellant "divested [herself] of her interest" in the dollar bill when she gave it to her friend and that the friend then made the decision to hand the item to the officer.
The circuit court denied the motion to suppress, providing a two-part rationale for doing so. First, it ruled that Tyson consented to the seizure of the dollar bill, recognizing that the record supported a finding that Officer Naylor "asked the man if he could see it" and "the man handed it over to the officer without resistance or objection." Second, the court ruled that the officer had probable cause to "search" the dollar. It based this ruling on the method of folding of the dollar, the officer's knowledge of the significance of that folding, the surreptitious way that the appellant passed the bill to Tyson, and the manner in which Tyson concealed the bill among the items he was already holding. The court described the way that the appellant held the bill while slowly passing it as "essentially ke[eping] her finger[s] straight, but with her thumb clasped against the palm [that] was holding this dollar bill." The court found it "very clear" that the appellant, who was in custody at the time, had engaged in "an effort to conceal what she had." Further, it pointed out that "under these circumstances," no exigency was required.
After the court denied the appellant's motion to suppress, she entered a conditional guilty plea to the charge of possession of a controlled substance. After conviction, she was sentenced to serve ten years in prison, with nine years nine months suspended.
The appellant argues that the circuit court erred in denying her motion to suppress the cocaine found in the folded dollar bill. She contends that she had a reasonable expectation of privacy in the bill, which she did not forfeit by entrusting it to her friend, and that neither she nor her friend consented to Officer Naylor's seizure and subsequent search of the bill. She also suggests that at the time of the search, the officer did not have probable cause to believe that the bill contained evidence of a crime and that, even if he did, he lacked the exigent circumstances necessary to search it without a warrant. The Commonwealth responds that the appellant relinquished her expectation of privacy in the bill by passing it to her friend and, accordingly,that she lacked standing to contest the seizure and search. The Commonwealth also argues, as the circuit court ruled, that the officer developed probable cause to believe that the appellant and her companion were engaged in a felony, providing the officer with probable cause to arrest them and to search the bill incident to arrest.
When challenging the denial of a motion to suppress evidence, the appellant bears the burden of establishing that reversible error occurred. Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910, 913 (2008). On appeal, the Court considers the evidence in the light most favorable to the party who prevailed below and affords to that party, in this case the Commonwealth, the benefit of all inferences fairly deducible from that evidence. Mason v. Commonwealth, 291 Va. 362, 367, 786 S.E.2d 148, 151 (2016).
The appellate court is bound by the circuit court's "findings of historical fact unless 'plainly wrong' or without evidence to support them." McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc). "This standard requires us 'to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.'" Commonwealth v. White, 293 Va. ___, ___, 799 S.E.2d 494, 495 (2017) (quoting Evans v. Commonwealth, 290 Va. 277, 280, 776 S.E.2d 760, 761 (2015)). The factual findings to which we defer include the circuit court's assessment of the credibility of the witnesses. McCary v. Commonwealth, 36 Va. App. 27, 35, 548 S.E.2d 239, 243 (2001). They also include whether the police received consent for a seizure or search. Jean-Laurent v. Commonwealth, 34 Va. App. 74, 79, 538 S.E.2d 316, 318 (2000). However, the appellate court reviews de novo both the issue of whether law enforcement had probable cause for a seizure or search and the overarching issue of whether the actions were reasonable. Glenn, 275 Va. at 130, 654 S.E.2d at 913; Bland v. Commonwealth, 66 Va. App. 405, 412, 785 S.E.2d 798, 801 (2016).
The "touchstone" of Fourth Amendment analysis is "whether a person has a 'constitutionally protected reasonable expectation of privacy'" in the place or item seized or searched. Oliver v. United States, 466 U.S. 170, 177 (1984) (quoting Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring)), quoted with approval in Sanders v. Commonwealth, 64 Va. App. 734, 743, 772 S.E.2d 15, 19 (2015); see Minnesota v. Carter, 525 U.S. 83, 88 (1998) (). The defendant bears the burden of proving such an expectation of privacy if she wishes to challenge the constitutionality of the action. See, e.g., Bell v. Commonwealth, 264 Va. 172, 190, 563 S.E.2d 695, 708 (2002); Logan v. Commonwealth, 47 Va. App. 168, 171 n.2, 622 S.E.2d 771, 772 n.2 (2005) (en banc). This burden involves both subjective and objective components. Sanders, 64 Va. App. at 744, 772 S.E.2d at 19-20. Additionally, the burden is one of "persuasion," not one of "mere . . . production." Logan, 47 Va. App. at 171 n.2, 622 S.E.2d at 772 n.2. Consequently, it requires proof, "to the satisfaction of the factfinder," of the existence of facts upon which the necessary "legal conclusion can be drawn." Id.
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