Kirby v. Com.

• Decision Date: 28 April 1969
• Citation: 209 Va. 806,167 S.E.2d 411
• Parties: Robert Woodford KIRBY v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 411

167 S.E.2d 411

209 Va. 806

Robert Woodford KIRBY v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

April 28, 1969.

J. Frank Shepherd, Lynchburg, for plaintiff in error.

D. Gardiner Tyler, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.

Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON and HARRISON, JJ.

HARRISON, Justice.

Robert Woodford Kirby, defendant, was indicted for statutory burglary and possession of burglarious tools, and entered pleas of not guilty to each indictment. A jury found defendant guilty of statutory burglary, fixed his punishment at 5 years in the State Penitentiary, and he was sentenced by the court. Defendant waived trial by jury on the indictment charging possession of burglarious tools, and the trial court found defendant guilty, fixed his punishment at confinement in the penitentiary for 3 years, and sentenced him accordingly. The cases are before us upon writs of error awarded defendant to the judgments.

During the night of August 22, 1967, a building occupied by Moore's Super Stores, Inc. in Lynchburg was burglarized. A safe was forced open, money taken therefrom and articles of value stolen. One of the articles and a diagram of the safe were later found in a home occupied by defendant.

Thereafter, about 3 A.M. on August 28, 1967, defendant and three companions were arrested in Lynchburg and charged with petty larceny. Found in defendant's automobile at the time of the arrest was a plastic tool case containing numerous tools of a kind and type customarily used in the commission of burglaries. Three of the tools (a chisel, a crowbar and a sledge hammer) were subsequently identified by agents of the Federal Bureau of Investigation as having been used to pry open the safe at Moore's Super Stores, Inc. This, together with other credible evidence adduced by the Commonwealth, amply supports the convictions of defendant. However, defendant contends the search of his automobile by the officers and the seizure of the tools was an unreasonable search and seizure, and he objected to the introduction of the tools in evidence. This is his principal assignment of error and the dispositive issue before us.

The evidence is not in dispute. While on routine patrol the night of August 28, 1967, Police Officer C. M. Glass, of the Lynchburg Police Department, noticed a 1960 model Chevrolet convertible automobile parked at a Shell service station at Bedford Avenue and Magnolia Street. The automobile was occupied by two women, the wives of Robert Tolley and defendant. Tolley was observed by the officer in the act of removing a license plate from a Cadillac automobile parked nearby. Defendant was looking, or doing something, under the hood of his Chevrolet while his companion Tolley was stealing the license plate. After Tolley had removed the plate from the Cadillac and returned to the Chevrolet car, Officer Glass drove up and arrested the four persons. The stolen license plate was found under the driver's seat of the Chevrolet. Defendant was armed. The patrol wagon was summoned to pick up defendant, Tolley and their wives.

Immediately following the arrest, and after the patrol vehicle had been dispatched to the jail, Officer Glass, together with Police Lieutenant Herbert Nash, searched defendant's automobile. Prior to the search they had noticed in the back, or well compartment, of the convertible a plastic tool case. This was removed from defendant's car and was found to contain burglarious tools. Among other items found in the tool case were gloves, pry bars, pliers, a hacksaw with extra blades, bolt cutters, various types of chisels and screw drivers. The search also revealed two loaded revolvers and two revolver holsters.

It is well settled that the Fourth Amendment to the Constitution forbids unreasonable searches and seizures, not all searches and seizures. We have held that the requirements of the Virginia statutes controlling the issuance of search warrants and forbidding searches without a warrant (Code §§ 19.1--85 and 19.1--86) are in substance the same as those contained in the Fourth Amendment. One 1963 Chevrolet Pickup Truck v. Commonwealth, 208 Va. 506, 158 S.E.2d 755 (1968), Cert. denied, 391 U.S. 964, 88 S.Ct. 2032, 20 L.Ed.2d 877 (1968).

A search and seizure is not unlawful despite the absence of a search warrant if it occurs incident to a lawful arrest. In Harris v. United States, 331 U.S. 145, 150, 151, 67 S.Ct. 1098, 1101, 91 L.Ed. 1399 (1947), it is said:

'The Fourth Amendment has never been held to require that every valid search and seizure be effected under the authority of a search warrant. Search and seizure incident to lawful arrest is a practice of ancient origin and has long been an integral part of the lawenforcement procedures of the United States and of the individual states.'

In United States v. Rabinowitz, 339 U.S. 56, 61, 70 S.Ct. 430, 433, 94 L.Ed. 653, 657 (1950), is found the following:

'Decisions of this Court have often recognized that there is a permissible area of search beyond the person proper. Thus in Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145, this Court stated:

'The right without a search warrant contemporaneously to search persons lawfully...