Lugar v. Com.

• Decision Date: 04 March 1974
• Citation: 214 Va. 609,202 S.E.2d 894
• Court: Virginia Supreme Court
• Parties: Gregory Blanton LUGAR v. COMMONWEALTH of Virginia.

Page 894

202 S.E.2d 894

214 Va. 609

Gregory Blanton LUGAR v. COMMONWEALTH of Virginia.

Supreme Court of Virginia.

March 4, 1974.

Michael Morchower, Richmond, for plaintiff in error.

James E. Kulp, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

COCHRAN, Justice.

The trial court, sitting without a jury, convicted Gregory Blanton Lugar of the statutory burglary of two Richmond drugstores, Sunset Hills Pharmacy and Cavedo's Drug Store, under Code § 18.1--89 (Cum.Supp.1973). The court sentenced Lugar to serve eight years in the State penitentiary on the first count, but suspended imposition of sentence on the second count during good behavior. The dispositive question in this appeal is whether certain evidence of the Commonwealth, admitted over Lugar's objection, was seized in violation of his Fourth Amendment rights.

About 2:00 a.m. on March 14, 1972, Richmond police officers, searching for a fugitive named Hodges, discovered that an automobile, which Hodges had been operating when he had earlier eluded Henrico County police, was blocking a driveway behind an apartment building at 1104 Floyd Avenue in Richmond. The officers ascertained that the vehicle was registered in the name of Michael Carter and learned from a passerby that the occupants of the car had gone to Apartment 3, 1102 Floyd Avenue, which Lugar later gave as his residence.

Richmond police, accompanied by Henrico County officers, proceeded to that apartment and knocked on the door. During the period of eight to fifteen minutes that passed before Carter opened the door, the officers heard footsteps and the rustle of paper inside the apartment. When the officers asked for Hodges, Carter informed them that Hodges was not there, but apparently admitted the officers to permit them to determine for themselves whether the fugitive was in the apartment.

Upon entering the apartment, the officers observed in plain view, on the floor of one of the rooms, two red capsules, which they recognized as seconal, a controlled drug, and a container marked 'Seconal', which they recognized as a type of container used by drug wholesalers. The officers arrested the three occupants of the apartment, one of whom appeared to be under the influence of drugs, and requested permission to make a further search of the premises, which request was refused.

Although the officers had no search warrant, they searched the apartment, which consisted of a bedroom-kitchen, another bedroom, a bath, a closet and a hall, for at least an hour and a half. They never found Hodges, but they found quantities of drugs 'all over' the apartment. Some of the items discovered and seized were in open view, but some of the drugs were found in or behind bags and containers. A stamp machine was found in the oven, but the record does not show whether the oven was open or, if closed, whether it was opened before the stamp machine was seen.

The officers seized over 7,000 pills and capsules, the stamp machine, labels from Sunset Hills Pharmacy, a Mickey Mouse wrist watch box, a watch display case, two Bank of Virginia money bags, and numerous drug boxes and bottles with code symbols identifying them as having come from either Cavedo's Drug Store or Sunset Hills Pharmacy. They also observed several letters addressed to Lugar, who was not present in the apartment, but who was apprehended as he fled from the apartment building. After Lugar's arrest, it was discovered that he was wearing a Mickey Mouse wrist watch. Some hours later, police officers returned with a search warrant to the apartment and found and seized additional bottles of drugs.

In overruling Lugar's motion to suppress the evidence seized by the officers without a search warrant, the trial court found that 'the search was reasonable under all the circumstances', which included Carter's consent to the officers' entry and the officers' discovery of controlled drugs in plain view. Except for the Mickey Mouse watch box and loose pills and capsules, all the items seized in the apartment, including the Bank of Virginia money bags, were positively identified by witnesses as having been taken in one or the other of the burglaries of the two drugstores. The Mickey Mouse watch found on Lugar and the watch box seized in the apartment had no identifying symbols but were similar to a watch and watch box taken from Sunset Hills Pharmacy in the burglary. The watch display case, however, bearing a Sunset Hills Pharmacy label, had been used by the drugstore to display the Mickey Mouse electric wrist watch which had been stolen.

Warrantless searches of private property without proper consent are Per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-defined exceptions. Cady v. Dombrowski,413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). See Coolidge v. New Hampshire, 403 U.S. 443, 454--455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Only where incident to a lawful arrest or in exceptional circumstances may a warrantless search and seizure of personal effects be made, and the burden is on the prosecution to show a justification for such seizure. Morris v. Commonwealth, 208 Va. 331, 334, 157 S.E.2d 191, 194 (1967). See Code § 19.1--88 (1960 Repl.Vol.). Under the exclusionary rule made applicable to the states by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), evidence unlawfully seized in violation of the Fourth Amendment may not be used against an accused. Hawley v. Commonwealth, 206 Va. 479, 481, 144 S.E.2d 314, 316 (1965), cert. denied, 383 U.S. 910, 86 S.Ct. 894, 15 L.Ed.2d 665 (1966). See also Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).

A general search of the apartment was not justified by consent. Carter consented for the officers to enter the apartment and to search for the fugitive, Hodges. This gave the officers the right to make a reasonable search of places in the apartment where a fugitive might hide. It did not give them the privilege of searching in bank bags, trash containers or other spaces which obviously could not hide a man.

The Attorney General contends that the warrantless seizure of evidence was lawful because many of the items taken were in plain view. The 'plain view' doctrine has been applied where, as here, police officers, with prior justification for being on the premises, are not searching for evidence against the accused but inadvertently come across incriminating evidence. Coolidge v. New Hampshire, Supra, 403 U.S. at 466, 91 S.Ct. 2022; Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Ker v. California, Supra, 374 U.S. at 43, 83 S.Ct. 1623. But this rule applies only where there was no search for the object seized. Carter v. Commonwealth, 209 Va. 317, 320, 163 S.E.2d 589, 592 (1968), cert. denied, 394 U.S. 991, 89 S.Ct. 1479, 22 L.Ed.2d 766 (1969); Chevrolet Truck v. Commonwealth, 208 Va. 506, 509, 158 S.E.2d 755, 758, cert. denied, 391 U.S. 964, 88 S.Ct. 2032, 20 L.Ed.2d 877 (1968). There was no finding by the trial court, however, as to what items were lawfully seized under the 'plain view' rule.

In Coolidge v. New Hampshire, Supra, 403 U.S. at 469, 91 S.Ct. 2022, Mr. Justice Stewart, writing for a plurality of the Supreme Court, stated that plain view seizures are lawful only when discovery of the objects seized is 'inadvertent'. He explained this requirement:

'The rationale of the (plain view) exception to the warrant requirement . . . is that a plain-view seizure will not turn an initially valid (and therefore limited) search into a 'general' one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless seizures as 'per se unreasonable' in the absence of 'exigent circumstances." 403 U.S. 469--471, 91 S.Ct. 2040.

Assuming, without deciding, that the plurality opinion has precedential significance, we conclude that in this case the officers were entitled to seize whatever evidence they discovered in plain view while acting within the scope of their privilege to look for Hodges in the apartment. The officers' discovery of contraband was inadvertent because they did not enter the apartment with the ulterior motive of searching for controlled drugs. Thus, the officers clearly had the right to seize the seconal capsules and the container marked 'Seconal'. After finding the seconal, the officers could not make a General warrantless search of the apartment for additional drugs. To the extent that they did so, their search was illegal and evidence seized as a result was inadmissible in Lugar's trial. However, the officers were not required to discontinue their search for Hodges when they inadvertently discovered the seconal and arrested the three occupants of the apartment. They could lawfully seize any evidence that they could observe while carrying out the search for which consent had been given. Thus, any contraband that was visible to the officers as they looked for Hodges could be seized.

Discovery of the seconal gave the officers probable cause to arrest the occupants of the apartment for possession of controlled drugs. As incident to the arrests, the officers could make a search, limited by Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), to each occupant's person and to the area within his reach where he might obtain a...