Turner v. Commonwealth

• Decision Date: 27 October 2015
• Docket Number: Record No. 1309–14–4.
• Parties: Brian Jeffrey TURNER v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

65 Va.App. 312

777 S.E.2d 569

Brian Jeffrey TURNER

v.COMMONWEALTH of Virginia.

Record No. 1309–14–4.

Court of Appeals of Virginia, Fredericksburg.

Oct. 27, 2015.

Bradley R. Haywood (Sheldon, Flood & Haywood, PLC, on briefs), Alexandria, for appellant.

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

Present: HUMPHREYS, RUSSELL and ATLEE, JJ.

Opinion

ROBERT J. HUMPHREYS, Judge.

Brian Jeffrey Turner (“Turner”) appeals the rulings of the Circuit Court of the City of Alexandria (the “circuit court”) 1) declining Turner's motion to suppress the evidence seized pursuant to a search warrant obtained as a result of a Global Positioning System (“GPS”) tracking device, 2) admitting photographs of mail addressed to Turner as evidence at trial, and 3) finding sufficient evidence to convict Turner of possession of narcotics.

I. BACKGROUND

In February and March 2013, detectives with the Alexandria Police Department's Vice/Narcotics squad (“the narcotics squad”), with the assistance of three separate confidential informants, identified Turner as a potential supplier in Alexandria's cocaine trafficking trade. These confidential informants provided detectives with evidence linking Turner to the sale of cocaine in Alexandria, Virginia. Detectives also knew from previous investigations that Turner had previously been arrested and later convicted in July 2009 for possession with intent to distribute a Schedule I/II controlled substance. Further evidence established that Turner resided at 3010 Manning Street in Alexandria, Virginia and drove a 2002 tan GMC Yukon registered to the same address. Based upon this information, the detectives sought and obtained a search warrant permitting the placement of a GPS tracking device on Turner's Yukon on March 13, 2013. The warrant allowed the tracking device to be used for a period of thirty days. The GPS tracker was installed on Turner's vehicle on March 19, 2013. Shortly thereafter, detectives learned from a confidential informant that Turner intended to take his vehicle into a garage to have a tire repaired.

On March 20, 2013, Detective John East of the narcotics squad (“Detective East”) went to the parking lot of a Chevrolet dealership where Turner had taken the vehicle for repair and removed the tracking device to prevent its discovery. In the following days, Detective East periodically checked the Manning Street address to determine if Turner had retrieved his vehicle from the repair shop. On April 3, 2013, Detective East observed Turner's Yukon in front of his residence on Manning Street and then reinstalled the tracking device.

On April 11, 2013, the circuit court entered an order extending the authorized tracking period for an additional thirty days because the time Turner's vehicle was in the repair shop “frustrate[d] the ability to track [its] movements during the authorized period.” Meanwhile, detectives also arranged three controlled purchases of cocaine from Turner through confidential informants. Based upon the detectives' surveillance and information obtained from confidential informants, detectives sought and obtained a search warrant for Turner's residence on April 28, 2013.

At approximately 1:30 a.m. on April 30, 2013, officers assigned to the Alexandria Police Department Special Operations Team (the “team”) executed the search warrant at Turner's home. A member of the team knocked on Turner's front door, announcing the police presence and advised they had a search warrant. A male voice responded, “Who is it?” Officers then observed a “shadow movement” inside the house and heard a noise that “sounded like somebody was running towards the back of the house.” The team knocked and announced its presence three times before ultimately forcing the door open. On the ground floor, officers observed an individual identified as Kirk Cross sitting on the couch in the living room. Officers searched Cross, but did not find any drugs or contraband on his person.

Meanwhile, detectives of the narcotics squad took up position at the back of the house. Approximately thirty seconds after the officers' first knock and announce attempt, Detective East, Detective Dan Gordon (“Detective Gordon”), and Detective Nicholas Lion (“Detective Lion”) observed Turner leaving the house and moving towards the back fence and rear alley. Turner was near the rear basement door of the house as he began to run through the backyard. Detective East described Turner as “coming from the back corner exit” and “attempting to run away.” Turner was wearing sweatpants, a t-shirt and socks, but no shoes. Detective Gordon directed Turner to stop and when Turner refused, Detective Gordon tackled him to the ground and secured him in handcuffs. As Turner was tackled, both Detective East and Detective Lion observed a rock of crack cocaine wrapped in plastic fall from Turner's hand. Subsequent testing revealed the substance tested positive for the presence of cocaine base.

During Detective Gordon's search of the basement, he discovered a “box of plastic sandwich bags” in the “top right dresser drawer” and a few pieces of mail addressed to Turner on top of the same dresser. Detective Lion also discovered a safe that was “at the foot of the bed and behind some boxes.” Detective Lion pried open the safe with a knife and discovered one plastic shopping bag with nine larger chunks of cocaine and a sandwich bag containing 144 individually wrapped rocks of cocaine. The nine larger chunks of cocaine weighed 280.1 grams, and the 144 individually wrapped rocks weighed 136.0 grams. Detective Lion also found a digital scale on a shelf in the adjoining laundry room.

A grand jury indicted Turner for one count of possession of cocaine with the intent to distribute, third or subsequent offense, and one count of possessing more than 250 grams of a substance containing cocaine base with the intent to distribute. Turner filed several pretrial motions, including a motion in limine to preclude the admission of photographs of mail found in the basement, and two motions to suppress the evidence derived from the GPS tracking device, which were denied. Following a bench trial, Turner was convicted of both offenses.

II. ANALYSIS

A. The GPS Tracker

Turner's first assignment of error asserts that the trial court erred in denying his motion to suppress the evidence obtained by the use of a GPS tracking device on Turner's vehicle. Specifically, Turner claims that the reattachment of the GPS tracker constituted a new search which required a second warrant. Further, Turner asserts that the extension of the warrant authorizing the use of the GPS tracker required more than a showing of “good cause.” Finally, Turner argues that the subsequent search of his residence and seizure of narcotics found there were fruit of the unconstitutional use of the GPS tracking device and thus should have been suppressed.

In reviewing a trial court's denial of a motion to suppress, “we determine whether the accused has met his 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, this Court reviews the trial court's application of legal standards to the particular facts of the case de novo. McCracken v. Commonwealth, 39 Va.App. 254, 258, 572 S.E.2d 493, 495 (2002) (en banc).

1. Reattachment of the GPS Device

First, Turner claims the reattachment of the GPS device constituted a new search and thus required a second warrant. Turner relies on United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), for the proposition that one warrant only authorizes the police to conduct one search. However, Jones did not alter the long-held principle that a search or seizure pursuant to a properly obtained and issued warrant is valid so long as the search or seizure is within the scope of the warrant. Rather, Jones actually reinforced this important principle.

In Jones, the government had applied for and received a warrant authorizing the installation of a GPS tracking device for a vehicle registered to Jones's wife. Id. at ––––, 132 S.Ct. at 948. The warrant clearly stipulated that the installation of the GPS device must take place in the District of Columbia within ten days; however, the government agents attached the device on the vehicle eleven days after the issuance of the warrant while the vehicle was parked in Maryland. Id. Over the next twenty-eight days, the government used the device to track the vehicle's movements, and once had to replace the device's battery when the vehicle was parked in a different public lot in Maryland. Id. Because the installation of the GPS device was clearly outside the scope of the warrant, the United States Supreme Court evaluated the case as a warrantless use of a tracking device, and ultimately held that attaching such a device constituted a search under the Fourth Amendment. Id. at –––– – ––––, 132 S.Ct. at 948–49. Notably, the Court did not take issue with the removal and reattachment of the device to replace the battery or analyze the tracking period as constituting two distinct warrantless searches. Instead, the Court repeatedly analyzed the use of the GPS device over the twenty-eight-day period as “a search.”

In this case, on March 13, 2013, detectives obtained a warrant for a GPS tracking device for Turner's vehicle for a period of thirty days, with the stipulation that the device be installed within fifteen days. The detectives promptly installed the GPS tracking device on Turner's vehicle on ...