Servis v. Com.

• Decision Date: 05 July 1988
• Docket Number: No. 0984-86-2,0984-86-2
• Citation: 6 Va.App. 507,371 S.E.2d 156
• Parties: , 57 USLW 2048 Clyde Earl SERVIS, III v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 156

371 S.E.2d 156

6 Va.App. 507, 57 USLW 2048

Clyde Earl SERVIS, III v. COMMONWEALTH of Virginia.

Record No. 0984-86-2.

Court of Appeals of Virginia.

July 5, 1988.

Elizabeth H. Dashiell (Morchower, Luxton & Whaley, Richmond, on brief), for appellant.

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

Present: BENTON, COLE and DUFF, JJ.

COLE, Judge.

Appellant, Clyde Earl Servis, III, appeals his convictions of possession of drug paraphernalia with intent to distribute in violation of Code § 18.2-265.3, possession of marijuana with the intent to distribute in violation of Code § 18.2-248.1, and possession of a controlled substance (cocaine) with intent to distribute in violation of Code § 18.2-248. He assigns the following errors on this appeal: (1) that the trial court erred in not suppressing evidence which was obtained through a warrantless entry into his motel room allegedly in violation of his fourth amendment rights; (2) that the trial court erred in not suppressing evidence obtained pursuant to an inventory search of his car because the circumstances did not warrant its impoundment; and (3) that the trial court erred in not granting his motion to strike the evidence because it was insufficient to establish his intent to distribute marijuana or cocaine. For the following reasons, we find no error and affirm the convictions.

I.

At about 4:00 a.m. on January 7, 1986, Valerie Lankford, the front desk clerk at Kings Quarters Motel in Hanover County, received a telephone call from an occupant of room 315 advising her of an attempted break-in to that room. She immediately telephoned the Hanover Police Department. Officers Farmer and Talley arrived on the scene minutes later. Lankford relayed the information she had given the dispatcher that an occupant of room 315 called the front desk to report an attempted break-in to that room.

Officers Farmer and Talley observed the room for about four or five minutes. Observing nothing unusual, they proceeded to the room. They knocked on the door for some time before the defendant finally answered. He only opened the door four or five inches and appeared "nervous," "highly upset," and "under the influence of something." Officer Talley observed that chairs were piled up against the door.

Officer Farmer asked the defendant if "everything was O.K." The defendant said that he had called the front desk because he thought someone had been trying to break in. When asked to whom the room was registered, he said that the room was rented to "Phillip" who had "gone down the block" and "wouldn't be back for a while." When Officer Farmer asked if he could come into the room, the defendant became very upset and refused.

Officers Farmer and Talley returned to the front desk. Lankford showed them the registration form which indicated that rooms 315 and 317 were single, adjoining rooms that had been rented to two people under the name of Eric Steinherner for one night. It also indicated that a Honda with Maryland tags was registered to those rooms. Lankford told the officers that those rooms had received several visitors and calls since she came on duty at 11:00 p.m. and that she "felt like something wasn't right in the room." Officer Farmer then telephoned the Hanover Commonwealth attorney who informed him that there was "no way" he could get a search warrant for the rooms.

Officers Farmer and Talley maintained surveillance of rooms 315 and 317 but noticed nothing peculiar until a cab arrived at the rooms. Officer Farmer then returned to the motel room while Officer Talley remained in the car. Farmer asked the defendant if the car registered to the room belonged to him; he said that it did. Farmer again asked the defendant to whom the rooms were registered. This time, he said to "Dan" who "had gone down the block." At this point, Officer Farmer asked the defendant to provide some identification because he "didn't feel like [the defendant] should have been in the room at all." The defendant turned around and quickly walked back through the doorway into the adjoining room where Officer Farmer would not have been able to see him. Farmer followed him into the room out of "fear for [his] life." Farmer testified:

He disappeared in the room quickly and from the manner in which he had been acting and the information that he'd given to me, ... I asked him for his identification and he turned around and went back into the room and I felt at that point because of my safety and other officers [sic] involved, I should stay right with him. I didn't know what he was going to retrieve.

When Farmer entered the room he stayed right behind the defendant. In the back right-hand corner of the room, he observed a large box of baking soda turned over onto the floor and a grocery bag containing a large dispenser of Reynolds Wrap aluminum foil. Farmer seized those items and arrested the defendant for possession of drug paraphernalia, testifying that, in his experience as a police officer, they were used for freebasing, cutting and packaging cocaine. The defendant was also arrested for giving false information to a police officer.

The defendant still had provided no identification, so he asked to go to his car to retrieve it. Farmer escorted the defendant to his car. The defendant unlocked the car and searched for some identification. He located the car registration but no identification. Farmer called another deputy to transport the defendant to the magistrate's office.

Officer Farmer then contacted the motel clerk and advised her that the man who owned the car registered to rooms 315 and 317 had been arrested. He asked if the motel would take responsibility for the car. When she said that it would not, Farmer called for a wrecker to tow it. Pursuant to standard police procedure, Officer Farmer then conducted a cursory inventory search of the car in the motel parking lot. Inside a magazine, he found a hypodermic needle and a bottle cap containing what appeared to be drug residue. He ceased his search at that point due to the lateness of the hour and his surmise that the car contained much contraband.

Officer Farmer then proceeded to the magistrate's office where the defendant was being held. After being given his Miranda warnings, the defendant stated that there was ten thousand dollars and an ounce of cocaine in the car. He said that the drugs were for his personal use and that the money was not related to the drugs but was for his move to Alabama.

The inventory search pursuant to the impoundment of the defendant's car was conducted according to standard police procedure. It revealed 26.42 grams of cocaine and 2.02 ounces of marijuana, both packaged in bulk; several large plastic bags; five tablets; ¹ and a piece of glass, a plastic bag, and a bottle cap, each containing drug residue. No money was located. The defendant was arrested for possession of marijuana and a controlled substance with intent to distribute.

A subsequent search of the two motel rooms turned up only bottle caps containing drug residue. A few days after the arrest, a maid at the Kings Quarters Motel found $9,920 in what had been one of the defendant's rooms. The money, mostly fifty and one hundred dollar bills, was packaged with bank bands in thousand dollar increments.

The defendant testified at trial that he was en route from Silver Spring, Maryland to Mobile, Alabama to visit a friend at Southern Alabama University and to relocate there. He testified that he purchased the drugs in Maryland solely for his personal use and that he had a large supply to last him until he relocated and found a new drug source. He said that he had a bad drug habit and that it would only take him one week to smoke an ounce of marijuana and about ten days to use an ounce of cocaine. He said that he had been injecting and freebasing cocaine the day of his arrest. He testified that he had not been selling and had no intent to sell drugs. He explained that the $9,920 located in his hotel room was his personal savings that he had brought with him for his move. When asked how he had earned the money, he said he earned it from selling shrimp in Maryland.

The defendant moved to suppress the evidence seized from the motel room and all evidence derived therefrom, contending that his fourth amendment rights were violated when Farmer entered his motel room without a warrant. He also moved to suppress the evidence seized from the inventory search of his car, contending that impoundment of his car was not warranted under the circumstances. The trial court overruled both motions. At the close of the evidence, the defendant moved to strike the evidence for failure of the evidence to show intent to distribute. The trial court overruled the motion. The defendant was subsequently convicted of possession of drug paraphernalia with intent to distribute, possession of marijuana with intent to distribute and possession of a controlled substance with intent to distribute. This appeal followed.

II.

The defendant contends that the trial court erred in refusing his motion to suppress the evidence seized in the motel room and all evidence derived therefrom because no exigent circumstances existed to justify a warrantless entry into the motel room. The Commonwealth contends that exigent circumstances did exist and that, in any event, Officer Farmer was justified in following the defendant into his motel room under the authority of a Terry "stop and frisk."

The fourth amendment rights of a guest in a motel room are equivalent to those of the rightful occupants of a house. Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 893, 11 L.Ed.2d 856 (1964). The fourth amendment protects people against unreasonable searches and seizures. A warrantless entry into a dwelling is presumably unreasonable. Cf. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). "Exigent circumstances, however,...