Ritter v. Com.

• Decision Date: 27 April 1970
• Citation: 210 Va. 732,173 S.E.2d 799
• Court: Virginia Supreme Court
• Parties: Harold Edward RITTER, Jr. v. COMMONWEALTH of Virginia.

Page 799

173 S.E.2d 799

210 Va. 732

Harold Edward RITTER, Jr. v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

April 27, 1970.

Henry L. Lam, Virginia Beach (Lam, Hudgins & Mann, Virginia Beach, on the brief), for plaintiff in error.

Walter H. Ryland, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on the brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN, and HARMAN, JJ.

HARRISON, Justice.

Harold Edward Ritter, Jr., defendant, seeks to reverse a judgment entered by the Circuit Court of the City of Virginia Beach on July 25, 1968, finding him guilty of possession of a narcotic drug (marijuana) in violation of Virginia's Uniform Narcotic Drug Act, and sentencing him to a three-year term in the penitentiary.

On January 31, 1968, Sgt. L. O. Sutton obtained a search warrant for the residence of Harold E. Ritter, 1400 East Bay Shore Drive, Virginia Beach, Virginia. Defendant, then an eighteen-year-old student at First Colonial High School, resided in this dwelling with his parents. The dwelling was searched, and no drugs were found.

The officers had noted the delivery and deposit by the postman of a package in the Ritter mailbox and questioned Mrs. Harold E. Ritter, mother of defendant, as to any package that defendant may have received. Sgt. Sutton testified that, after being told by Mrs. Ritter that she had not collected the mail for this particular day, '(W)e walked out to the mailbox and she removed the mail from the box and handed me this package addressed to the defendant'. On cross-examination Sutton elaborated as follows:

'I asked her at the house had she checked the mail that day and, as I recall, we didn't ask her for it. She found the package, she saw it, obviously knowing there was such a package there, and I am not certain whether we were in the driveway or actually at the box whenever she handed it to us. I am sure we were at least as far from here to this doorway away from the box at the time she handed it to us. Whether we were back up in the driveway or not, I am not certain.'

The wrappings on the package showed that it was sent from Cocoa Beach, Florida, marked 'First Class Mail', and addressed to Eddie Ritter, 1400 East Bay Shore Drive, Virginia Beach, Virginia.

After receiving the package from the mother, Sgt. Sutton went to the First Colonial High School where defendant and numerous other students were being interviewed by police officers investigating narcotic violations. Defendant had not been questioned at that time.

Ritter was taken into an office at the school and was told that he was being interviewed 'in reference to his violation of the narcotic drug laws'. Before being asked any questions, defendant was fully advised of his constitutional rights. He indicated that he understood, signed the 'legal rights interview form' and agreed to make a statement. The form which he signed recites that the interview was 'in connection with the alleged commission of the crime of Possession of Narcotic Drugs'.

Sutton then handed to Ritter the unopened package which had been concealed beneath the officer's coat and asked defendant to open it. The officer either gave Ritter his knife, or assisted him by clipping the binding tape.

Defendant opened the package and viewed its contents. Sutton asked him: 'What is this?' and defendant replied: 'It's pot.'

When asked who sent it, defendant replied that any of 200 people could have sent it to him. His attention was directed to the Cocoa Beach, Florida postmark, and Ritter said that any of 50 people could have sent it to him from there; that he could have mentioned to anyone that he wanted some marijuana and they could have sent it to him whenever they came in contact with it.

After identifying the contends of the package as 'pot', the 'jargon' of drug users for marijuana or Cannabis Sativa L., Ritter was asked if it were his. Defendant's answer was: 'It must be mine, it's got my name on it.'

Ritter was then advised that he was under arrest for possession of marijuana. He was searched, and the officers found in his wallet a money order receipt from the Western Union Telegraph Company for $42.50 ($40 plus $2.50 charges). The receipt shows that on January 24, 1968, Eddie Ritter, of 1400 East Bay Shore Drive, Virginia Beach, Virginia, sent $40 to Gary Price, 220 Lincoln Avenue, Apt. B--10, Cape Canaveral, Florida, a city testified to be contiguous to Cocoa Beach.

Defendant was questioned as to his use and knowledge of marijuana in the Virginia Beach area. Sutton said he was cooperative and showed him four or five different fields or places where he knew that marijuana was growing.

The contents of the package were taken by Sutton to the Crime Laboratory in the City of Norfolk and analyzed in his presence. A copy of the official laboratory report was introduced in evidence. It is dated January 31, 1968, signed by Heinz H. Karnitschnig, M.D., Deputy Chief Medical Examiner, and Ramon A. Morano, M.S.C., State Toxicologist. The report shows the substance submitted to be 'loose weed for identification' which analyzed as 'weed (30.5 Gms.): identified to be cannabis (marihuana).'

Evidence was adduced to show that 30.5 grams of cannabis would have a price range from $25 to $50, depending on the area it came from, the demand and the supply.

Sgt. Sutton was the only witness for the Commonwealth. Defendant did not testify and called only one witness in his behalf--Gary Price.

Price, a resident of Virginia Beach, was attending college in Florida in January, 1968 and admitted receiving from Eddie Ritter a money order for $40.

He testified that following the receipt of a letter from defendant, he phoned the latter and Ritter asked him to purchase some beads and a bracelet for his girl friend; that during the course of their conversation, Price requested payment of a $20 loan made defendant in July, 1967; and that Ritter agreed to send this and $20 more for the beads and bracelet.

This witness said that he could not get the bracelet but did obtain the beads, for which he paid 'around $10' and figured 'it was worth $10 to get them'.

Price further testified that a package containing the beads, together with an accompanying letter, was sent to Ritter 'around the end of January or the beginning of February, something like that. I can't remember exactly'. He denied sending marijuana to defendant, but admitted knowledge of this drug, saying: 'I have an idea what it is. I mean, I have heard.' When asked if his associates 'didn't try to sell it, push it or give it away', Price responded that 'he did not know, that he did not look into it, and that it was not any of his business'.

Defendant contends that the package containing the marijuana was not lawfully obtained by the officers, and therefore should not have been admitted in evidence. We disagree.

The evidence before us shows that there was no search of the mailbox by the officers or seizure of the package by them. The mailbox was opened by the mother of defendant, and a package addressed to him was freely and voluntarily given by her to the officers. There is no evidence that they threatened Mrs. Ritter, used any force or exercised any coercion to induce her to deliver the package.

Defendant cites Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). There the officers represented to defendant's grandmother, who was in possession of the premises, that they had a search warrant. A search was conducted, and a rifle was found which was subsequently introduced in evidence. At a hearing on a motion to suppress, the prosecutor did not rely on a warrant to justify the search but on consent given by the grandmother. The court held:

'When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.

'When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion--albeit colorably lawful coercion. Where there is coercion there cannot be consent.' 391 U.S. 543, 549, 550, 88 S.Ct. 1788, 1792.

Ritter does not claim that the officers searched the mailbox. He does not assert that the delivery of the package to the officers by his mother was because of coercion by them or her knowledge that they had a search warrant for the Ritter residence. The mother was not called as a witness. Sgt. Sutton's testimony that the mother 'obviously' knew there was a package in the mailbox went unchallenged.

Defendant's position is that the home of his parents is also 'his home' and that the mailbox is the 'joint property' of all parties in the family. He argues that no member of his family could have surrendered the package, voluntarily or otherwise. He says it could have been obtained from the mailbox only by a search warrant. The record reveals that when the admissibility of the package was being argued, in the court below, counsel for defendant made the following representation to the trial court:

'The mail that comes there--now, we are not arguing the facts, but I am sure Mrs. Ritter takes his mail in the house all the time. The question we are arguing here is the question whether she has the right to give his mail away to someone else. This is the point. And the Rees case, I think, is conclusive (of) the fact that she does not. It is on that basis that I would move that...