Westcott v. Com.

• Decision Date: 13 June 1975
• Docket Number: No. 740868,740868
• Citation: 216 S.E.2d 60,216 Va. 123
• Parties: Walter Leon WESTCOTT v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 60

216 S.E.2d 60

216 Va. 123

Walter Leon WESTCOTT v. COMMONWEALTH of Virginia.

Record No. 740868.

Supreme Court of Virginia.

June 13, 1975.

William P. Robinson, Jr., Norfolk (Mason, Moore & Robinson, Ltd., Norfolk, on brief), for plaintiff in error.

James E. Kulp, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

POFF, Justice.

Sitting without a jury, the trial court found Walter Westcott guilty of grand larceny by receiving stolen goods and sentenced him to three years in the penitentiary.

On October 21, 1973, a portable telephone and a pair of Leitz binoculars, valued at $3,251.04 and $424.69, respectively, and certain other articles were stolen from Dr. Joseph McFadden's parked car.

About 8:00 a.m. on January 10, 1974, H. W. Scott, an officer attached to the Narcotics Squad of the Norfolk Police Department, received a telephone tip from a reliable informant that Westcott, whom Scott knew, would go to a certain motel that afternoon and pick up a quantity of drugs. At 10:30 a.m., Scott set up surveillance from another motel directly across the street. Around noon, Westcott arrived in one of the cars he was known to drive. After visiting the motel office, he went to one of the rooms fronting on the street, knocked on the door, stuck his head inside, and returned to the office where he remained for approximately five minutes. He returned to the room, a woman came out, and the couple entered Westcott's car. Westcott was carrying nothing visible to the officers, and he never opened the trunk of his car. As Scott approached Interstate Route 64 in pursuit of Westcott, he made a wrong turn and lost sight of Westcott's car for a period of time. Alerted by radio, officers in another car stopped Westcott at an interchange some two miles away. When Scott arrived, the officers conducted a warrantless search of Westcott's person, the passenger compartment of his car, and the car's trunk. No narcotics were discovered, but inside the trunk the officers found three handguns, a portable telephone, and a pair of Leitz binoculars. They seized the guns and the telephone but left the binoculars in the trunk. Westcott was taken into custody 'under investigation for a felony, for narcotics', interrogated, and released without charge.

Later, after other officers recognized the telephone to be similar to one reported stolen from Dr. McFadden's car, Westcott was arrested and charged with grand larceny. Some two days later, at the officer's request, Westcott went to the repair shop where he had left his car, retrieved the binoculars from the trunk, and delivered them to the police station.

The defendant moved to suppress the physical evidence on the grounds that the warrantless search violated the Fourth Amendment guarantee against unreasonable searches and seizures. The trial court overruled the motion and admitted the binoculars and telephone into evidence. By comparing the serial numbers on the binoculars with those on his purchase receipt, Dr. McFadden identified the binoculars as those stolen from his car. Asked to identify the telephone, which contained no serial numbers, he said, 'I cannot identify that piece of equipment specifically as the one which was in my car, because there's so many that are identical from appearance.' Over the defendant's objection, the trial court admitted Scott's hearsay testimony that a technician at the telephone company had examined the telephone in his presence and had found it to be wired for the call number registered to Dr. McFadden.

Westcott testified that he had purchased the telephone in a pool parlor from a man named 'Pretty Willie' for $25.00 and the binoculars from a Washington, D.C., resident, whose name he could not recall, for $8.00. He denied having any reason to know that the articles had been stolen.

One of the recognized exceptions to the warrant requirement of the Fourth Amendment is that police officers may stop and search a moving vehicle if they have probable cause to believe that it contains seizable objects. Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 Reh. denied, 400 U.S. 856, 91 S.Ct. 23, 27 L.Ed.2d 94 (1970); Schaum v. Commonwealth 215 Va. 498, 211 S.E.2d 73 (1975). The defendant conceded in oral argument that Scott had such probable cause and thus abandoned his challenge to the reliability of the informant. Since Scott could not anticipate which of several cars Westcott might be driving, and therefore, could not make an affidavit 'particularly describing the place to be searched', it was impossible for him to obtain a search warrant in advance of the stop. See Vass v. Commonwealth, 214 Va. 740, 743, 204 S.E.2d 280, 283 (1974).

However, relying upon the rule in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the defendant contends that Scott's authority to search was limited to the specific area under his control and that this did not include the trunk compartment of his car. The defendant misapplies the Chimel rule. A search incident to lawful arrest, another of the recognized exceptions to the warrant requirement, had its genesis in Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652 (1914) (dicta); and Agnello v. United States, 269 U.S. 20, 24, 46 S.Ct. 4, 70 L.Ed. 145 (1925) (dicta). Chimel fixed the outer constitutional limits of such a search as 'the area into which an arrestee might reach in order to grab a weapon or evidentiary items'. 395 U.S. at 763, 89 S.Ct. at 2040. That rule, applicable where the predicate for the warrantless search is a lawful arrest, has no relevant where the predicate for the warrantless search is probable cause to believe that a car contains contraband or other seizable objects. ¹

The defendant argues that, since 'there was no reason or justification, based upon the information received, to justify a search of the defendant's trunk', the officers did not have probable cause to search the trunk.

The probable cause standard does not require actual knowledge. '. . . (O)nly the...