Reynolds v. Com.

• Decision Date: 13 February 1990
• Docket Number: Nos. 1357-87-2,1358-87-2,s. 1357-87-2
• Citation: 388 S.E.2d 659,9 Va.App. 430
• Parties: Douglas Clayton REYNOLDS v. COMMONWEALTH of Virginia. Vicki Jean REYNOLDS, s/k/a Vickie Jean Reynolds v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 659

388 S.E.2d 659

9 Va.App. 430

Douglas Clayton REYNOLDS v. COMMONWEALTH of Virginia.

Vicki Jean REYNOLDS, s/k/a Vickie Jean Reynolds v. COMMONWEALTH of Virginia.

Record Nos. 1357-87-2, 1358-87-2.

Court of Appeals of Virginia.

Feb. 13, 1990.

Willis F. Hutchens (William E. Johnson; Hutchens & Hutchens, P.C., Richmond, on brief), for appellants.

Leah A. Darron, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: JOSEPH E. BAKER, BENTON and COLE, JJ.

JOSEPH E. BAKER, Judge.

Vicki Jean Reynolds (wife) and Douglas Clayton Reynolds (husband) (appellants) appeal their Hanover County Circuit Court (trial court) bench trial convictions for manufacturing of marijuana not for their own use and for possession of cocaine. ^{1 1} Appellants allege (1) that the trial court erred in refusing to suppress evidence seized as a result of the warrantless entry by the police into their residence, (2) that the trial court erred by finding that the wife consented to the search of appellants' residence, and (3) that the evidence was insufficient to convict both husband and wife of manufacturing marijuana not for their own use.

On information, Hanover County Deputy Sheriff Gary Vitek (Vitek) stopped a vehicle driven by Mark Fogg (Fogg) and discovered in his possession stolen items, among which were a television set and two shotguns. Fogg confessed that he had stolen the items from appellants' residence. Fogg stated that he had twice entered the house through an opening on the screen porch and exited through the front door after the burglary. On one of those occasions husband and another person were on the premises, so Fogg left, returning a short while later to complete the burglary. Vitek arrested Fogg, radioed for assistance, and proceeded with Fogg to the scene of the crime. Investigator Bailey (Bailey) responded to the request, met Vitek and Fogg at appellants' house and assumed command of the investigation, with Vitek assisting him. Vitek suspected that someone might be injured or dead inside the house. He further thought there might be evidence of the breaking and entering inside the house and saw a need to secure the premises. Bailey also wanted to be certain the premises were secure. They entered the house believing appellants were victims, not suspects, of a crime.

At the house, Fogg led the officers to the place where he had entered. The officers inspected the area and photographed the point of entry. All three men then walked to the door where Fogg told them he had exited. A glass door was closed but the wooden door remained ajar. Without announcing their presence, they entered appellants' house through the open front doorway.

Fogg led Bailey and Vitek through the house directly to a porch where he had entered to commit the burglary. While there, Fogg directed the officers' attention to twenty-nine marijuana plants growing in tomato plant boxes in small paper cups. Some were healthy; others appeared to be dead or in ill health. Upon making this discovery, Bailey contacted vice squad Investigators William Chenault and David Hines, who came to the premises, removed the plants and placed them on the hood of their vehicle. While awaiting the arrival of Chenault and Hines, Bailey was able to contact wife and inform her of the burglary. No search of the premises was made until wife returned to her house and consented to the search. ²

Wife was arrested for manufacturing marijuana, advised of her constitutional rights, and questioned by the officers. She admitted that she was aware of a 14-inch tall marijuana plant in the kitchen but denied any knowledge of the plants on the porch. After she orally consented to a search of the house, the officers explained in detail a Consent to Search form which she read. She indicated that she understood its purpose, and signed the form. The search produced a single beam scale located in a stereo cabinet stand, a smoking pipe on the floor next to a sofa, and a plastic bag containing cocaine found on the top shelf of a wardrobe in appellants' bedroom.

Wife argues that her consent to search was involuntary because it was given while she was under arrest, upset, in tears and isolated by the police from her mother, sister and brother, who had accompanied her to the house after she was informed of the burglary. The officers denied any coercion was used and testified that wife was in control of her emotions. At trial, appellants testified that the marijuana was for husband's personal use and that the scales were used to weigh wife's food in connection with her diet plan.

Appellants concede that the evidence, if admissible, is sufficient to prove that marijuana and cocaine were illegally possessed. They contend that neither illegal substance was properly admitted into evidence and that appellants' motions to suppress that evidence were erroneously denied by the trial court. Appellants further allege that the warrantless entry into their house by Bailey and Vitek was in violation of their rights under the Fourth Amendment of the Constitution of the United States and Code § 19.2-59, and that, although the marijuana was in plain view, those exceptions should not be applied because the first entry was illegal. They also assert that wife's consent was not voluntary but should it be deemed voluntary, it too must be held to have been obtained in violation of the Fourth Amendment because it was obtained following the illegal entry of the house. Lastly, they assert that the evidence, if admissible, was insufficient to support the indictment charging that appellants manufactured marijuana not for their own use, in violation of Code § 18.2-248.1(c).

I. The Warrantless Entry

Prior to the American Revolution, the right to be free from unreasonable searches and seizures was denied the Colonists by the infamous writs of assistance employed by the King's agents. From the day the Framers of the Constitution of the United States decided to rid themselves of the dreaded writs by the adoption of the Fourth Amendment our courts have condemned unjustified warrantless entries into a person's home. To protect against such entries a device which came to be known as "the exclusionary rule" was "judicially created [and] designed to safeguard Fourth Amendment rights generally through its deterrent effect." United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974). In the application of the exclusionary rule, however, we are constantly reminded that the Fourth Amendment does not forbid all searches and seizures, only unreasonable ones. See Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (1960); Verez v. Commonwealth, 230 Va. 405, 410, 337 S.E.2d 749, 752 (1985), cert. denied, 479 U.S. 813, 107 S.Ct. 63, 93 L.Ed.2d 21 (1986); One 1963 Chevrolet Pickup Truck v. Commonwealth 208 Va. 506, 508, 158 S.E.2d 755, 757, cert. denied, 391 U.S. 964, 88 S.Ct. 2032, 20 L.Ed.2d 877 (1968). Thus, a warrantless search and seizure may not be unlawful if it is not unreasonable. Chevrolet Truck, 208 Va. at 508, 158 S.E.2d at 758.

While it is established that, absent exigent circumstances, the threshold of one's home may not be crossed without a warrant, see Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639 (1980), whether the exclusionary rule should be applied to exclude evidence discovered as a result of a warrantless crossing must be determined from an examination of the facts leading to the entry. In making that determination at the trial level, the Commonwealth has a heavy burden to justify the warrantless entry, as all such entries are presumed to be unreasonable. Verez, 230 Va. at 410, 337 S.E.2d at 753. However, upon appeal from a trial court's denial of a motion to suppress the discovered evidence, the burden is upon the appellant to show, considering the evidence in a light most favorable to the Commonwealth, granting to it all inferences fairly deducible therefrom, that the denial constituted reversible error. ³ 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); see also State v. Adamson, 136 Ariz. 250, 665 P.2d 972, cert. denied, 464 U.S. 865, 104 S.Ct. 204, 78 L.Ed.2d 178 (1983).

In determining the reasonableness of police action on appeal, as well as in the trial court, consideration must be given to the fact that the police owe "duties to the public, such as rendering aid to individuals in danger of physical harm, reducing the commission of crimes through patrol and other preventive measures, and providing services on an emergency basis." Washington v. Bakke, 44 Wash.App. 830, 834, 723 P.2d 534, 536 (1986). We have examined the record in this cause and find that it contains sufficient evidence to support the trial court's judgment denying the motion to suppress.

The concept of "exigent circumstances" forms the basis of the recognized exceptions to the Fourth Amendment requirement that a warrant to search must be obtained prior to entry. See Lowe v. Commonwealth, 218 Va. 670, 677, 239 S.E.2d 112, 116 (1977), cert. denied, 435 U.S. 930, 98 S.Ct. 1502, 55 L.Ed.2d 526 (1978). Among the circumstances accepted as providing "exigent circumstances" for a warrantless search are those where a true "emergency" exists.

While exigent circumstances generally have been defined to exist where the suspect is in a position to flee as when he is in a car, or when the evidence is located in a place or under such conditions that it is likely to be destroyed while a warrant is sought, a further condition has been recognized as an exigent circumstance authorizing a warrantless or nonconsensual entry into a suspect's home. This exception is known as the "emergency doctrine."

The applicability of the "emergency doctrine" as an exigent circumstance was reaffirmed by the U.S. Supreme Court in the recent case of Mincey v. Arizona, 437 U.S....