Rivera v. Commonwealth

• Decision Date: 10 November 2015
• Docket Number: Record No. 1931–14–1.
• Citation: 778 S.E.2d 144,65 Va.App. 379
• Court: Virginia Court of Appeals
• Parties: Geoffrey Narcisco RIVERA v. COMMONWEALTH of Virginia.

65 Va.App. 379

778 S.E.2d 144

Geoffrey Narcisco RIVERA

v.COMMONWEALTH of Virginia.

Record No. 1931–14–1.

Court of Appeals of Virginia, Norfolk.

Nov. 10, 2015.

Afshin Farashahi, Virginia Beach, for appellant.

Benjamin H. Katz, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Opinion

CHAFIN, Judge.

The Circuit Court of the City of Virginia Beach convicted Geoffrey Narcisco Rivera of possession of marijuana with the intent to distribute in violation of Code § 18.2–248.1and conspiracy to distribute marijuana in violation of Code §§ 18.2–256and 18.2–248.1. On appeal, Rivera contends that the circuit court erred by denying his motion to suppress evidence obtained from the warrantless search of his cell phone and incriminating statements that he made following the search. Rivera argues that the Supreme Court's decision in Riley v. California,––– U.S. ––––, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014),¹applied retroactively to his case and, pursuant to that decision, he argues that the warrantless search of his cell phone violated the Fourth Amendment. The Commonwealth concedes that the warrantless search of Rivera's cell phone was illegal, but contends that the exclusionary rule does not mandate the suppression of the evidence obtained through the search under the circumstances of this case. For the reasons that follow, we agree with the Commonwealth that the exclusionary rule does not require the suppression of the evidence at issue, and accordingly, we affirm the circuit court's decision.

I. BACKGROUND

“When reviewing a denial of a suppression motion, we review the evidence ‘in the light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.’ ” Elliott v. Commonwealth,61 Va.App. 48, 51, 733 S.E.2d 146, 148 (2012)(quoting Glenn v. Commonwealth,49 Va.App. 413, 416, 642 S.E.2d 282, 283 (2007)(en banc), aff'd,275 Va. 123, 654 S.E.2d 910 (2008)). So viewed, the evidence established that officers from the Norfolk Police Department informed detectives from the Virginia Beach Police Department that a package containing marijuana would be delivered to an apartment located in the City of Virginia Beach on October 2, 2013. The Virginia Beach officers set up surveillance around the apartment building on that day. Eventually, they saw an individual carrying a green case arrive at the building and enter an apartment.

Shortly after this individual arrived, a narcotics detective knocked on the door to the apartment. When an individual who lived in the apartment answered the door, the detective immediately smelled marijuana. He saw three men in the apartment: the individual that answered the door, the individual that arrived with the case, and Rivera. He also saw marijuana smoking paraphernalia in plain view. In light of these observations, the detective detained the occupants of the apartment until the police could obtain a search warrant for the premises. The individual that lived in the apartment, however, consented to a search of his residence and officers found marijuana in the green case.

During the search of the apartment, the police interviewed each of the detained suspects. Detective Daniel Fogarty questioned Rivera, and he confiscated his cell phone before he started the interview. Although Rivera initially claimed that he was unaware of the presence of marijuana in the apartment, he later admitted that he had intended to acquire eight ounces of marijuana that day to sell to another individual.

Following this confession, Detective Fogarty viewed the text messages on Rivera's cell phone to determine whether they referenced the drug transaction. He read several text messages discussing the pricing and sale of marijuana. When confronted with these text messages, Rivera made additional incriminating statements regarding marijuana transactions. Detective Fogarty never obtained a warrant to search Rivera's cell phone.

Rivera moved to suppress the evidence obtained from his cell phone and the incriminating statements that he made to Detective Fogarty regarding the text messages. On April 9, 2014, the circuit court heard evidence on the suppression motion. After hearing the evidence, the circuit court delayed its ruling on the motion until the Supreme Court of the United States issued its decision in Riley.The Supreme Court issued its opinion on June 25, 2014.

After considering additional briefing and argument from the parties addressing the impact of the Rileydecision, the circuit court denied Rivera's motion to suppress. Although the Commonwealth conceded that Detective Fogarty's search of the cell phone violated the Fourth Amendment under Riley,the circuit court concluded that the exclusionary rule did not warrant the suppression of the evidence collected from the phone, explaining that “the police officers were using the best practices in place at the time and thus using the exclusionary rule in this case would not deter police misconduct.” Rivera entered conditional guilty pleas to the charges against him and appealed the circuit court's decision denying his motion to suppress to this Court.²

II. ANALYSIS

In reviewing a trial court's denial of a motion to suppress, “we determine whether the accused has met his [or her] burden to show that the trial court's ruling, when the evidence is viewed in the light most favorable to the Commonwealth, was reversible error.” Roberts v. Commonwealth,55 Va.App. 146, 150, 684 S.E.2d 824, 826 (2009). This Court is “bound by the trial court's findings of historical fact unless ‘plainly wrong’ or without evidence to support them and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers.” McGee v. Commonwealth,25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997)(en banc). “However, we consider de novowhether those facts implicate the Fourth Amendment and, if so, whether the officers unlawfully infringed upon an area protected by the Fourth Amendment.” Hughes v. Commonwealth,31 Va.App. 447, 454, 524 S.E.2d 155, 159 (2000)(en banc) (citing McGee,25 Va.App. at 198, 487 S.E.2d at 261).

In Riley,the Supreme Court held that police officers generally must obtain a warrant to search a cell phone seized incident to an individual's arrest. Riley,134 S.Ct. at 2493. Although the Supreme Court decided Rileyafter the search at issue in the present case was conducted, it issued its opinion in Rileybefore Rivera was convicted of the charged offenses. On appeal, Rivera argues that Rileyretroactively applied to his case and that the warrantless search of his cell phone violated the Fourth Amendment. We agree. “[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final....” Griffith v. Kentucky,479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987). As Rileywas decided by the Supreme Court while Rivera's case was pending before the circuit court, it applied to his case.

The Commonwealth conceded at trial, and now concedes on appeal, that Rileyretroactively applied to Rivera's case and that the warrantless search of his cell phone violated the Fourth Amendment.³Despite the unconstitutionality of the warrantless search, however, the Commonwealth contends that the circuit court correctly concluded that the exclusionary rule did not apply under the circumstances of this case. Accordingly, the crucial issue presented on appeal involves the remedy available to Rivera rather than a substantive Fourth Amendment argument. The issue that we must decide concerns the application of the exclusionary rule to the evidence obtained from the search of Rivera's cell phone rather than the retroactive application of Riley. See Davis v. United States,–––U.S. ––––, ––––, 131 S.Ct. 2419, 2431, 180 L.Ed.2d 285 (2011)(“Retroactive application does not ... determine what ‘appropriate remedy’ (if any) the defendant should obtain. Remedy is a separate, analytically distinct issue.” (citations omitted)).

The Commonwealth cites Davisas the primary support for its appellate argument. Davisinvolved the application of the exclusionary rule to evidence obtained prior to the change in Fourth Amendment precedent brought about by Arizona v. Gant,556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). In Gant,the Supreme Court held that police officers may search an automobile without a warrant incident to a recent occupant's arrest only when (1) the arrestee is “within reaching distance of the vehicle” during the search, or (2) “it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Gant,556 U.S. at 346, 129 S.Ct. at 1721; see also Davis,131 S.Ct. at 2425. Gantexpressly limited the Court's prior decision in New York v. Belton,453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), which held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Belton,453 U.S. at 459–60, 101 S.Ct. at 2864; see also Gant,556 U.S. at 343, 129 S.Ct. at 1719.

The Supreme Court began its analysis in Davisby noting that while “[t]he Fourth Amendment protects the right to be free from ‘unreasonable searches and seizures,’ ... it is silent about how this right is to be enforced.” Davis,131 S.Ct. at 2423. “To supplement the bare text, [the Supreme] Court created the exclusionary rule, a deterrent sanction that bars the prosecution from introducing evidence obtained by way of a Fourth Amendment violation.” Id.“Exclusion is ‘not a personal constitutional right,’ nor is it designed to ‘redress the injury’ occasioned by an unconstitutional search. The rule's sole purpose ... is to deter futureFourth Amendment violations.” Id.at 2426(emphasis added) (citations omitted) (quoting Stone v. Powell,428 U.S. 465, 486, 96 S.Ct. 3037, 3048, 49 L.Ed.2d 1067 (1976)).

The Supreme Court further explained that “[f]or...