McNair v. Com.

Decision Date30 November 1999
Docket NumberRecord No. 2717-97-2.
Citation31 Va. App. 76,521 S.E.2d 303
PartiesJeffery McNAIR, s/k/a Jeffrey McNair v. COMMONWEALTH of Virginia.
CourtVirginia Court of Appeals

Mary Katherine Martin, Senior Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Jeffrey S. Shapiro, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and BENTON, COLEMAN, WILLIS, ELDER, BRAY, ANNUNZIATA, BUMGARDNER, LEMONS and FRANK, JJ.

UPON A REHEARING EN BANC

COLEMAN, Judge.

Jeffery McNair was convicted of possession of cocaine in violation of Code § 18.2-250. He contends the trial court erred by denying his motion to suppress evidence obtained during a warrantless search of his residence following an investigation of a reported robbery. He also contends the evidence is insufficient to support the conviction.

A divided panel of this Court affirmed the trial judge's rulings, see McNair v. Commonwealth, 29 Va.App. 559, 513 S.E.2d 866 (1999),

and we granted a rehearing en banc. Upon rehearing en banc, we hold that the trial court did not err by denying the motion to suppress the evidence, but we find the evidence insufficient to support the conviction. Accordingly, we vacate the panel decision, reverse McNair's conviction for possession of cocaine, and dismiss the charge.

BACKGROUND

Officer William Hannum responded to a report that a robbery was in progress at McNair's apartment. McNair, who was "very upset," told Officer Hannum that he had just been robbed and that he believed the robbers were still inside his apartment. Officer Hannum remained with McNair until two additional police officers arrived. Officer Hannum and the two officers then searched McNair's apartment, "mainly looking for anyone who might have done the robbery . or any other individuals that might need .. . assistance." During their search of the two-level apartment, which "was in somewhat of a state of disarray, of clutter," the officers entered McNair's second-floor bedroom. Finding no one in the aparment, the officers returned to the first-floor living room and discussed the robbery with McNair.

Detective Willie Wells arrived while Hannum and the other officers were in the living room talking to McNair. At that time, an emergency crew was removing a "victim" from the apartment. Detective Wells asked Hannum whether he or the other officers had looked for clues to the robbery. Without speaking to McNair about the robbery, Wells then went upstairs "specifically looking for evidence that the robbers might have dropped or left behind." In McNair's bedroom, which was in disarray, the detective noticed a glass test tube lying in plain view on the floor in the doorway to a closet. The test tube was intact, contained a white substance, and contained moisture on the inside. The detective testified that he recognized the tube as a type that "is commonly used to cook up small amounts of crack cocaine." When the detective asked McNair about the test tube, McNair replied that the robbers must have dropped it when they were in his bedroom. The white substance in the test tube proved to be cocaine. McNair was charged with possession of the cocaine.

ANALYSIS
Motion to Suppress

McNair argues that the test tube was seized by the police during an unlawful search of his residence and that the trial court erred by refusing to suppress the test tube and cocaine as evidence. Conceding that exigent circumstances existed when the officers initially arrived at his apartment, which would have justified their searching his apartment without a warrant, McNair argues that the exigency ceased to exist when the officers determined that the robbers were no longer present and no one needed emergency assistance. McNair argues that Detective Wells' subsequent warrantless search of the apartment was unreasonable and, therefore, violated the Fourth Amendment.

When we review a trial court's denial of a motion to suppress, "[w]e view the evidence in a light most favorable to. . .the prevailing party below, and we grant all reasonable inferences fairly deducible from that evidence." Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991). In our analysis, "we are bound by the trial 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) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). However, we consider de novo whether those facts implicate the Fourth Amendment and, if so, whether the officers unlawfully infringed upon an area protected by the Fourth Amendment. See id.

Subject to several well established exceptions, the Fourth Amendment prohibits warrantless searches of any place or thing in which a person has a justifiable expectation of privacy. See Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)

. However, searches made by the police pursuant to a valid consent do not implicate the Fourth Amendment. See Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Iglesias v. Commonwealth, 7 Va.App. 93,"99, 372 S.E.2d 170, 173 (1988) (en banc). When relying upon consent as the justification for a search, the Commonwealth must prove, given the totality of the circumstances, that the consent was freely and voluntarily given. See Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Hairston v. Commonwealth, 216 Va. 387, 388, 219 S.E.2d 668, 669 (1975); Commonwealth v. Rice, 28 Va.App. 374, 378, 504 S.E.2d 877, 879 (1998). "A consensual search is reasonable if the search is within the scope of the consent given." Grinton v. Commonwealth, 14 Va.App. 846, 850-51, 419 S.E.2d 860, 862 (1992). "The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of `objective' reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). While conducting a consensual search, the police may lawfully seize an item that they discover in plain view if they "have probable cause to believe that the item in question is evidence of a crime or contraband." Conway v. Commonwealth, 12 Va.App. 711, 721, 407 S.E.2d 310, 316 (1991) (en banc).

Here, the officers responded to a report that a robbery was in progress at McNair's residence. McNair met the responding officers and informed them that the robbers could still be in his apartment. When an initial search of the residence disclosed no suspects, McNair voluntarily assisted the officers by answering questions while standing in the living room of his apartment. At no point did he attempt to restrict or terminate the officers' investigation of his residence, which he had requested.

When Detective Wells arrived, he asked Officer Hannum whether the officers had searched for clues to the robbery. The detective then went upstairs. McNair did not object. From this evidence, the trial court reasonably inferred that McNair (1) consented to the officers' presence in his apartment for the purpose of investigating the robbery, (2) observed the detective go upstairs, and (3) knew that the detective was searching for clues to the robbery. McNair's failure to withdraw his consent is evidence that he consented to Detective Wells' search. See Lawrence v. Commonwealth, 17 Va.App. 140, 146, 435 S.E.2d 591, 594-95 (1993),

aff'd,

247 Va. 339, 443 S.E.2d 160 (1994); see also Grinton, 14 Va.App. at 851,

419 S.E.2d at 863 ("[t]he scope of a search may be further defined during the course of the search by the passive acquiescence of the person whose property is being searched").

McNair argues that the Supreme Court's ruling in Thompson v. Louisiana, 469 U.S. 17, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984) (per curiam), is controlling. We disagree. Thompson dealt with the government's contention that a "crime scene" exception exists to the warrant requirement. In Thompson, the petitioner shot her husband and then attempted to kill herself by taking a large quantity of pills. Before she lost consciousness, she called her daughter, requesting help. The daughter contacted the police. The responding officers searched the petitioner's residence, looking for additional victims or suspects. See id. at 18, 105 S.Ct. 409. The search uncovered no evidence. Thirty-five minutes after transporting the petitioner to the hospital and after securing the scene, two homicide investigators arrived and without obtaining a warrant, searched the residence for two hours for the purpose of securing evidence pertaining to the murder attempted suicide investigation. See id. During this search, the investigators found items that were admitted at trial as evidence against the petitioner. See id. at 18-19, 105 S.Ct. 409. The Supreme Court reversed the murder conviction and disagreed with the Louisiana Supreme Court's finding that the petitioner, by making the call to her daughter for assistance, had a "diminished expectation of privacy" in her home. Id. at 22, 105 S.Ct. 409. The Court specifically noted that no one had given consent to search the residence. See id. at 19, 105 S.Ct. 409. The Court stated that the "[p]etitioner's call for help can hardly be seen as an invitation ... that would have converted her home into the sort of public place for which no warrant to search would be necessary." Id. at 22, 105 S.Ct. 409. See also, Mincey, 437 U.S. 385,

98 S.Ct. 2408 (no crime scene exception to the warrant requirement exists), and Flippo v. West Virginia, ___ U.S. ___, 120 S.Ct. 7, 145 L.Ed.2d 16 (1999).

McNair's reliance on Thompson is misplaced, because here the police had McNair's consent to search for evidence of criminal activity. In Thompson, the Court specifically explained that...

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