Moore v. Com. of Va.

• Decision Date: 05 June 2018
• Docket Number: Record No. 0224-17-1
• Citation: 813 S.E.2d 916,69 Va.App. 30
• Parties: Dwight Delano MOORE v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

69 Va.App. 30

813 S.E.2d 916

Dwight Delano MOORE

v.COMMONWEALTH of Virginia

Record No. 0224-17-1

Court of Appeals of Virginia, Norfolk.

JUNE 5, 2018

Rachel E. Wentworth, Assistant Public Defender, for appellant.

Brittany A. Dunn–Pirio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Beales, Alston and Senior Judge Frank

OPINION BY JUDGE RANDOLPH A. BEALES

On October 7, 2016, Dwight Moore ("appellant") entered a conditional guilty plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).¹ Appellant’s plea agreement preserved his right to appeal the denial of his motion to suppress a firearm that police recovered following a traffic stop. The Circuit Court of the City of Chesapeake accepted appellant’s plea and found him guilty of possession of a firearm by a convicted felon, and appellant then appealed the denial of his motion to suppress to this Court.

I. BACKGROUND

During the hearing on appellant’s motion to suppress, Officer Daniel Smith testified that he was on duty on November 2, 2014 at 9:51 p.m. At that date and time, Officer Smith and Officer Lyle were patrolling and observed a vehicle (later determined to be driven by appellant) with no lights illuminating its rear license plate. The officers initiated a traffic stop; however, the vehicle did not pull over. The vehicle continued down the road briefly before appellant jumped out of the vehicle while it was still in motion, causing it to crash into two parked cars.

Officers Smith and Lyle pursued appellant on foot while commanding that he stop and that he was under arrest. Appellant ignored the officers’ commands and continued to flee. Officer Smith testified that, during the pursuit, he requested assistance from nearby officers. Eventually, appellant "gave up and fell on the ground," and was placed under arrest.

Officer Groome testified that, meanwhile, he had gone to the crash site after receiving Officer Smith’s call for assistance. Officer Groome also testified that he was the only police officer on the scene and that a crowd was forming near the crashed vehicle. Groome stated that there were no officers between the crowd and the crashed vehicle. Groome also stated that the crashed vehicle was in the middle of the road with its front door open on the driver’s side. From his vantage point outside of the vehicle, Officer Groome saw an uncovered firearm in plain view near the gas pedal. He testified, "I noticed a firearm on the floorboard. I did secure the firearm and put it in the back of my police vehicle for safekeeping since the crowd was forming." Officer Groome testified that he did not enter the vehicle until he saw the firearm and that he unloaded the firearm before securing it. When asked on cross-examination if he received appellant’s consent to enter the vehicle, Officer Groome answered, "No. I just saw the weapon and since a crowd was forming, I secured it for safekeeping because I wasn’t sure if I needed to assist in helping catch Mr. Moore."

Subsequently, a police unit with a drug-sniffing dog arrived at the scene. Following an "open-air sniff" of the vehicle’s exterior, the police dog alerted on the vehicle, indicating the potential presence of narcotics. However, a search only uncovered "a small, very minute suspected marijuana roach for smoking marijuana ... with burnt rolling papers" in the vehicle’s ashtray.²

In denying appellant’s motion to suppress the firearm, the trial judge stated:

As far as the vehicle goes, I agree with the Commonwealth and probably most obviously exigent circumstances . When the officer could, in plain view, see the firearm, even though there was no evidence concerning whether it was stolen or it had been used in a crime, the mere fact that under all the circumstances of this case, that there was a firearm in a floorboard of a vehicle that had crashed into cars, the driver had fled, and that there was a crowd of people around, justified the officer taking possession of the firearm so that it wouldn’t pose a danger to others, as well as the fact that it would still be in existence at the time that the circumstances were such that the police had gained control of the scene, and for those reasons will overrule the defense’s motion to suppress the firearm.

(Emphasis added). Appellant’s lone assignment of error states that "[t]he trial court erred in denying Moore’s motion to suppress."

II. ANALYSIS

A. Standard of Review

"A defendant’s claim that evidence was seized in violation of the Fourth Amendment presents a mixed question of law and fact that [appellate courts] review de novo on appeal." Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002). "In reviewing a trial court’s denial of a motion to suppress, ‘the burden is upon [the defendant] to show that the ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error.’ " McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc ) (alteration in original) (quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980) ). "[A]n appellate court must give deference to the factual findings of the circuit court and give due weight to the inferences drawn from those factual findings; however, the appellate court must determine independently whether the manner in which the evidence was obtained meets the requirements of the Fourth Amendment."

Commonwealth v. Robertson, 275 Va. 559, 563, 659 S.E.2d 321, 324 (2008).

B. Presence of Exigent Circumstances

The Fourth Amendment protects the people against "unreasonable searches and seizures," it does not protect against searches and seizures that are reasonable. U.S. Const. amend. IV (emphasis added). "Warrantless searches, of course, are per se unreasonable, subject to a few well-defined exceptions." Abell v. Commonwealth, 221 Va. 607, 612, 272 S.E.2d 204, 207 (1980). These exceptions include "exigent circumstances," which arise when the very nature of an event demands an immediate response from law enforcement. See McCary v. Commonwealth, 228 Va. 219, 227, 321 S.E.2d 637, 641 (1984) ("Searches conducted without prior judicial approval are per se unreasonable ... subject to exceptions allowed when exigencies require warrantless searches."). Exigent circumstances include:

(1) the degree of urgency involved and the time required to get a warrant; (2) the officers’ reasonable belief that contraband is about to be removed or destroyed; (3) the possibility of danger to others, including police officers left to guard the site; (4) information that the possessors of the contraband are aware that the police may be on their trail; (5) whether the offense is serious, or involves violence; (6) whether officers reasonably believe the suspects are armed; (7) whether there is, at the time of entry, a clear showing of probable cause; (8) whether the officers have strong reason to believe the suspects are actually present in the premises; (9) the likelihood of escape if the suspects are not swiftly apprehended; and (10) the suspects’ recent entry into the premises after hot pursuit.

Verez v. Commonwealth, 230 Va. 405, 410–11, 337 S.E.2d 749, 753 (1985). Our Supreme Court has also recognized that because "[p]olice officers find themselves in a myriad of situations with varied fact patterns," no court can provide an "exhaustive enumeration of factors that would distinguish circumstances that qualify as exigent from those that would not." Evans v. Commonwealth, 290 Va. 277, 283, 776 S.E.2d 760, 763 (2015). Rather:

[I]n each case a determination must be made whether the law enforcement officers had probable cause at the time of their warrantless entry to believe that cognizable exigent circumstances were present. The officers are not required to possess either the gift of prophecy or the infallible wisdom that comes only with hindsight.

Keeter v. Commonwealth, 222 Va. 134, 141, 278 S.E.2d 841, 846, cert. denied, 454 U.S. 1053, 102 S.Ct. 598, 70 L.Ed.2d 589 (1981). Therefore, when determining whether exigent circumstances justify a warrantless intrusion, courts must look at the facts of each case, "as they reasonably appeared to the law enforcement officers on the scene." Verez, 230 Va. at 411, 337 S.E.2d at 753.

As the trial judge noted, the primary factor that contributed to the exigency of the circumstances in the current case was the unsecured firearm and the potential threat it posed to the other individuals on the scene. In conducting our de novo review of the trial judge’s ruling, we examine the threat that such a firearm presented to those individuals—the responding police officer as well as the gathering crowd.

This Court has previously upheld the warrantless seizure of firearms in plain view from a vehicle when those firearms posed a potential threat to officer safety. Taylor v. Commonwealth, 10 Va. App. 260, 391 S.E.2d 592 (1990) ; see also Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). In Taylor, two police officers were patrolling an area where young people were known to consume alcohol and smoke marijuana. 10 Va. App. at 262, 391 S.E.2d at 593. Seeing two vehicles parked down a narrow path, the officers chose to investigate and activated their vehicle’s blue lights. Id. The blue lights prompted four individuals to emerge from the woods; these individuals provided their identification to the officers. Id. at 263, 391 S.E.2d at 593. One of the vehicles was a pickup truck. In the bed of that truck, one officer saw a pair of shotguns in plain view (one shotgun was sawed-off and resulted in the defendant’s conviction). Id. at 263, 391 S.E.2d at 593–94. Upon seeing the guns, the officer immediately reached into the bed of the truck, without a warrant, and removed them for his safety and the safety of his fellow officer.

Id. at 263, 391 S.E.2d at 594. In affirming the validity of the officer’s warrantless seizure, this Court recognized that the ...