McCarthy v. Commonwealth

• Citation: 864 S.E.2d 577,73 Va.App. 630
• Decision Date: 09 November 2021
• Docket Number: Record No. 1225-20-1
• Parties: Brandon Alan MCCARTHY v. COMMONWEALTH of Virginia
• Court: Court of Appeals of Virginia

73 Va.App. 630

864 S.E.2d 577

Brandon Alan MCCARTHY

v.COMMONWEALTH of Virginia

Record No. 1225-20-1

Court of Appeals of Virginia.

NOVEMBER 9, 2021

Erik A. Mussoni, Assistant Public Defender, for appellant.

Leanna C. Minix, Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellee.

Present: Judges Huff, AtLee and Malveaux

OPINION BY JUDGE GLEN A. HUFF

Brandon Alan McCarthy ("appellant") was convicted in the Chesapeake Circuit Court (the "trial court") for possessing heroin in violation of Code § 18.2-250. On appeal, he contends the evidence the Commonwealth used to support that conviction was obtained in violation of his Fourth Amendment rights. In the alternative, he asserts that amendments to Code § 18.2-251.03 protected him from prosecution and should have been applied retroactively by the trial court. This Court disagrees on both counts and affirms appellant's conviction.

I. BACKGROUND

On appeal, "this Court consider[s] the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial." Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295 (2007) (en banc ) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595 (2004) ). Viewed through this lens, the evidence shows the following:

In the mid-afternoon of April 1, 2019, Officer E. Cutburth was dispatched to Room 216 of the Studios and Suites for Less motel complex in response to an anonymous caller claiming they saw an unresponsive male lying on the floor of that room. When Cutburth arrived at the scene, she saw that the door was "slightly ajar." She then pushed the door open and announced her presence as a member of Chesapeake law enforcement. Upon doing so, she noticed that the room had two beds on its left side with a nightstand in between them. She further noticed "a foot protruding" between the bed on the far side of the room and the wall. She then approached the individual and identified him as appellant.

Appellant was unconscious, pale, cool, sweating "profusely," and engaged in what Cutburth described as "agonal breathing." Given appellant's condition and because she had dealt with "probably around 100" overdose cases, Cutburth believed appellant was, in fact, suffering from a drug overdose. Cutburth attempted to elicit a response from appellant by giving him a "sternum rub," but that measure proved unsuccessful.

Shortly after, Officer J. Mattacchione and emergency medics arrived at the scene. Cutburth let the medics take over appellant's treatment and proceeded to search the motel room with Mattacchione for evidence of drug use.

The officers first surveyed what was in plain view in the motel room by perusing the outer portions of appellant's clothing, the top of the bed at the far end of the room,² the top of the nightstand, and the top of a dresser on the right side of the motel room. That search provided no clues as to what substance, if any, appellant had taken. Additionally, the medics indicated they had administered Narcan

to appellant but had not been able to revive him at that point.

From there, Mattacchione opened the nightstand's drawer and discovered a clear baggie containing a white powdery substance that was later determined to be heroin. She then gave the baggie to Cutburth, who in turn informed the medics of the substance. Appellant was revived a few minutes later, and when asked by medics what substance he took, appellant admitted he had snorted heroin.

On November 6, 2019, appellant was indicted for possessing heroin in violation of Code § 18.2-250. He was also indicted for one count each of possessing psilocybin and possessing methamphetamine in violation of Code § 18.2-250, but the Commonwealth nolle prosequied those charges upon a concession that the evidence for them was gathered in violation of appellant's constitutional rights.

Appellant filed a motion to suppress the heroin discovered through the officers’ search, arguing that the search violated his Fourth Amendment rights. A hearing on that motion took place on November 7, 2019. There, the parties agreed that the officers’ search was warrantless but disputed whether it was nonetheless justified as an emergency act under the community caretaker doctrine. Appellant argued that the doctrine did not justify the officers’ search because they exceeded what was reasonably justified by the circumstances in searching the nightstand's drawer. The trial court disagreed and denied the motion on the basis that the community caretaker doctrine justified the officers’ warrantless search.

After the suppression hearing, appellant waived his right to counsel and proceeded pro se. Prior to trial, appellant filed a motion to dismiss the indictment against him, arguing among other things that Senate Bill 667—later passed as an amendment to Code § 18.2-251.03 —precluded his prosecution because (1) another individual sought medical assistance for him in light of his overdose; (2) he remained at the scene and identified himself to law enforcement after their arrival; and (3) the evidence the prosecution sought to use at trial was obtained as a result of the anonymous tip reporting his overdose and requesting medical attention.

A bench trial took place on September 29, 2020. At the outset of trial, appellant re-asserted the argument made in his motion to dismiss, although this time he relied on the statutory amendment rather than the Senate Bill. In response, the trial court noted that the "offense date precede[d] the change in the law" but asked appellant whether he "ha[d] a question" for the court regarding the issue. Appellant stated that because of the statutory amendment, he "d[id not] understand why [he was] still [t]here" but noted that he was not formally renewing his pre-trial motion at that time.

At the close of the Commonwealth's case, appellant noted that he did not intend to introduce his own evidence but said he "would like to show" the trial court a copy of Code § 18.2-251.03. The trial court remarked that it was "familiar with" the statute, as it was "the same statute [they] discussed" in their colloquy at the outset of trial. In his closing argument, appellant again cited to the statutory amendment to Code § 18.2-251.03, noted that he "almost lost [his] life" on the day of the offense, and asserted that he did not "see where convicting [him] on an additional felony ... [was] really going to solve anything at all." The trial court ultimately convicted appellant for violation of Code § 18.2-250 and sentenced him to five years of incarceration with all but time served suspended.³

This appeal followed.

II. STANDARD OF REVIEW

Appellant's first assignment of error asserts that the heroin discovered through the search of the nightstand was obtained in violation of the Fourth Amendment and therefore should have been suppressed at trial. That claim presents a mixed question of law and fact that is reviewed de novo. Robinson v. Commonwealth, 47 Va. App. 533, 544, 548 n.6, 625 S.E.2d 651 (2006) (en banc ), aff'd, 273 Va. 26, 639 S.E.2d 217 (2007). Specifically, although this Court gives deference to any findings of historical fact made by the trial court, Harris v. Commonwealth, 276 Va. 689, 694, 668 S.E.2d 141 (2008), it "determine[s] independently whether, under the law, the manner in which the evidence was obtained satisfies constitutional requirements," McCain v. Commonwealth, 261 Va. 483, 489, 545 S.E.2d 541 (2001).

Appellant's second assignment of error asserts that the evidence was insufficient to support his conviction for heroin possession. However, his challenge does not dispute the trial court's findings of historical fact. Instead, appellant alleges that even when conceding all the facts viewed in the light most favorable to the Commonwealth, he could not be found guilty as a matter of law because Code § 18.2-251.03 retroactively protected him from prosecution. Accordingly, this assignment of error presents a pure question of statutory law that this Court reviews de novo. See Eley v. Commonwealth, 70 Va. App. 158, 162, 826 S.E.2d 321 (2019).

III. ANALYSIS

A. The Trial Court Did Not Err in Denying Appellant's Motion to Suppress

Appellant argues that the evidence of heroin found through the officers’ search of the nightstand was obtained in violation of his Fourth Amendment rights. Notably, appellant does not challenge the lawfulness of Cutburth's initial entry into the motel room—which requires that this Court assume without deciding that the entry was constitutional. Instead, appellant narrows the focus of his arguments on the police's conduct in the motel room after the initial entry. To this end, he contends that the officers’ search of the motel room was overly extensive in its scope. This Court disagrees.

The Fourth Amendment protects individuals against unreasonable searches and seizures. U.S. Const. amend. IV. "[W]arrantless searches are per se unreasonable, subject to a few specifically established and well-delineated exceptions." Megel v. Commonwealth, 262 Va. 531, 534, 551 S.E.2d 638 (2001). Because there is no dispute that the search in this case was conducted without a warrant, the only question for this Court is whether the search was justified by one of the established Fourth Amendment exceptions.

Before fully reaching that question, however, there is a preliminary issue for this Court to address. The trial court ruled that the officers’ search was permissible under the community caretaker exception to the Fourth Amendment's typical warrant requirement.⁴ But just this year, the United States Supreme Court ruled that the community caretaker exception does not extend to warrantless searches and seizures in the home. Caniglia v. Strom, ––– U.S. ––––, 141 S. Ct. 1596, 1598, 209 L.Ed.2d 604 (2021) ("The question today is whether [the Court's prior recognition of law enforcement's] ‘caretaking’ duties creates a standalone doctrine that justifies...