McCary v. Com.

• Decision Date: 12 October 1984
• Docket Number: No. 831434,831434
• Citation: 228 Va. 219,321 S.E.2d 637
• Parties: Oscar M. McCARY v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 637

321 S.E.2d 637

228 Va. 219

Oscar M. McCARY v. COMMONWEALTH of Virginia.

Record No. 831434.

Supreme Court of Virginia.

Oct. 12, 1984.

John D. Sims (Cottingham & Sims, Hayes, on brief), for appellant.

Robert H. Anderson, III, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, STEPHENSON, RUSSELL and THOMAS, JJ.

COCHRAN, Justice.

A jury found Oscar M. McCary guilty of robbery, two counts of malicious wounding, and use of a firearm in the commission of a felony. The trial court, entering judgment on the jury verdict, sentenced him to serve in the penitentiary for these offenses 20 years, 20 years, 20 years, and 1 year, respectively. On appeal, McCary challenges the rulings of the trial court on the admissibility of certain evidence. He contends that the court erred in admitting evidence seized in a warrantless search, evidence seized pursuant to an allegedly defective search warrant, and identification testimony of the two victims of the crimes.

On September 2, 1981, Sherry Hypes and Gwendolyn Emory were the two employees working at the Middle Peninsula-Northern Neck Savings and Loan branch in Gloucester Point. After reporting for work about 9:45 a.m., Hypes walked across the street to deposit the contents of the night depository box. On her way back to the Savings and Loan, Hypes spoke to a man whom she subsequently found to be McCary. About 10:30, McCary entered the branch and asked if Hypes or Emory had seen his brother; upon being informed that neither had seen a man of the description given, McCary departed. Reentering the Savings and Loan five or ten minutes later, McCary left with Emory a note to be delivered to his brother who, McCary said, was coming to the branch to obtain a loan. Throughout his two visits, McCary was the only person, other than the two employees, in the branch. Neither Hypes nor Emory knew McCary; he never told them his name or that of his brother.

When Hypes returned from lunch about 1:45 p.m., she noticed that an old gray four-door automobile, with radio antenna on the rear, passenger's side, was parked in front of the branch. About 2:20 she observed that the car was still there. As Hypes and Emory discussed the problem caused by the car blocking the entrance to the drive-in window, they saw McCary walking to the vehicle; they then saw the trunk of the car raised. Emory, who had watched McCary drive away in the same automobile after his second visit of the morning, glanced at the license plate. Hypes saw Howard Davis walk by and wave at McCary. Davis confirmed that he had exchanged greetings with McCary outside the post office, located next to the Savings and Loan; Davis said he had known McCary for at least 10 years.

About five minutes later, when there were no customers present, McCary again entered the Savings and Loan. Brandishing what appeared to be a shotgun, McCary announced that this was a "hold-up". He forced Emory to lie on the floor and Hypes to hand him the available currency. McCary then pulled a "billy-bat" from his back pocket, struck each woman in the head, knocking Emory unconscious and stunning Hypes, and went out the door. Hypes heard the car leave the drive-in window.

Lieutenant David Hudgins, of the Gloucester County Sheriff's Department, to whom the robbery was reported at 2:57 p.m., arrived at the branch about 3:08 p.m. to investigate. Emory recited to him two license plate numbers, differing in only one digit, either one or the other of which she believed was on the car she had observed outside the drive-in window. Hudgins ascertained from the Division of Motor Vehicles that one of the numbers had been assigned to a 1967 Oldsmobile sedan registered in McCary's name.

About 4:00 p.m., State Trooper P.K. Hargis, who had received a radio report of the robbery and a description of the suspect and his automobile, discovered the car parked on the side of a hard-surfaced road in the vicinity of a trailer park in York County. Hargis put out flares, secured the area, and "kept people away until the investigators arrived." Shortly thereafter, Special Agent John C. Wagner, of the Federal Bureau of Investigation, and others came to investigate. According to Hargis, the car was locked; someone used a coat hanger to open the doors.

Wagner testified that the doors were open when he arrived. He removed two notes found inside the car and subsequently delivered them to Lieutenant Hudgins. Analysis of the notes revealed that they came from the same sheet of paper as the note left by McCary that morning at the Savings and Loan. One note removed from the car read: "This is a robbery. I want all the money now." The other read "I will be back to get." All three notes were introduced in evidence.

Hudgins, after completing his investigation at the Savings and Loan, proceeded to the site where the car was parked, 2.9 miles from the scene of the crimes, arriving about 7:00 p.m. He was advised that a search warrant was being obtained. Although Hudgins announced that he was at that time seizing the car, he waited until the search warrant was produced before searching the vehicle. In the ensuing search, a rifle and a shotgun were found in the trunk. A fingerprint of McCary's was found on the shotgun and the shotgun was admitted in evidence at trial over McCary's objection.

The search warrant was issued by a magistrate on the basis of an affidavit made by a law enforcement officer stating that he had personal knowledge of the facts set forth therein. At the suppression hearing, the officer testified that he had no personal knowledge of the facts but set forth in the affidavit information given to him by other law enforcement officers. He further testified, over McCary's objection, that he had so informed the magistrate when he applied for the search warrant.

Hudgins showed a photographic array, including a picture of McCary, to Emory and Hypes shortly after the crimes were committed. Neither could identify McCary but both expressed confidence that they could identify the robber in person. Both victims testified that they learned the name of their assailant from others, Hypes from a member of the Sheriff's Department, Emory from someone whose identity she could not recall. Both positively identified McCary at the preliminary hearing and again at trial.

In the trial court, McCary made a motion to strike the Commonwealth's evidence based upon the allegedly tainted identification made by the two victims. He also filed a motion to suppress the Commonwealth's evidence seized in the allegedly invalid warrantless search of the automobile and the Commonwealth's evidence seized pursuant to the allegedly invalid search warrant. After hearing evidence, the trial court denied both motions.

1. Evidence seized in the warrantless search.

The warrantless search produced the two notes which, over McCary's objection, were introduced in evidence against him. McCary argues that this evidence was not admissible under any exception to the requirement that searches be conducted only pursuant to warrants issued by detached and neutral magistrates. We disagree.

At the pre-trial suppression hearing, Trooper Hargis testified unequivocally that when he found McCary's car all the doors and windows were locked. He thought that one of the agents of the Federal Bureau of Investigation opened the door and removed a piece of clothing from the front seat and a piece of paper from the glove compartment. The clothing, which Hargis could see before the car was opened, was used to give tracking dogs a scent to follow. The car appeared to Hargis to have been abandoned.

The officers established that the suspect had crossed the front yard of a nearby residence. Hargis, who had information that the robber had a gun and that he had inflicted personal injuries, considered the possibility that the car may have contained weapons.

Special Agent Wagner was vague in his testimony about his part in the warrantless search. The car appeared to him to have been abandoned when he entered the vehicle. He was concerned that the suspect, who was reported to be armed, might use the weapon. He also entered the car to determine who committed the crimes. Wagner said that the car keys were found under the mat inside the car. He did not learn until the next day that the car had run out of gasoline.

If, as the Commonwealth argues, McCary's car had been abandoned before the warrantless search was conducted, then McCary may not successfully invoke the guarantees of the Fourth Amendment. Hawley v. Commonwealth, 206 Va. 479, 482, 144 S.E.2d 314, 316 (1965), cert. denied, 383 U.S. 910, 86 S.Ct. 894, 15 L.Ed.2d 665 (1966); see Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Parks v. Commonwealth, 221 Va. 492, 270 S.E.2d 755 (1980),cert. denied, 450 U.S. 1029, 101 S.Ct. 1738, 68 L.Ed.2d 224 (1981). We need not determine whether the car was abandoned, however, because of our conclusion that the search was justified because of the existence of probable cause and exigent circumstances.

Searches conducted without prior judicial approval are per se unreasonable under the Fourth Amendment, subject to exceptions allowed when exigencies require warrantless searches. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970); Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017, 101 S.Ct. 579, 66 L.Ed.2d 477 (1980); Thims v. Commonwealth, 218 Va. 85, 88-89, 235 S.E.2d 443, 445 (1977). Under the well-established automobile exception to the warrant requirement, an automobile may be searched without a warrant where there are both probable cause to believe the car contains evidence of crime and exigent circumstances. ^* Chambers, 399 U.S. at 51, 90 S.Ct. at 1981; Fore, 220 Va. at 1010-11, 265 S.E.2d at 731-32.

In the present case, the facts support a finding of probable cause...