Wilkins v. Com., Record No. 2973-00-1.

• Decision Date: 12 February 2002
• Docket Number: Record No. 2973-00-1.
• Parties: Eugene WILKINS [VS.] v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

559 S.E.2d 395

37 Va. App. 465

Eugene WILKINS [VS.] v. COMMONWEALTH of Virginia.

Record No. 2973-00-1.

Court of Appeals of Virginia, Chesapeake.

February 12, 2002.

James O. Broccoletti (Zoby & Broccoletti, on brief), Norfolk, for appellant. Eugene Murphy, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.

Present: BRAY, BUMGARDNER and FRANK, JJ.

FRANK, Judge.

Eugene Wilkins (appellant) was convicted in a bench trial of two counts of possession with intent to distribute cocaine, in violation of Code § 18.2-248. On appeal, appellant contends the trial court erred in ruling (1) appellant was properly informed of his Miranda rights; (2) the search warrant was issued based on probable cause; (3) appellant's vehicle was properly searched; and (4) the evidence seized in the vehicle was admissible. For the reasons stated, we affirm the convictions.

I. BACKGROUND

On February 25, 1999, Detective Frank Chappell of the Portsmouth Police Department was working with an informant who previously had provided information resulting in at least one arrest. The informant reported that for some time he had been buying quantities of narcotics from appellant and Calvin West. He explained that appellant delivered the drugs to West's home on Brookwood Drive in Suffolk, where the drugs then were sold. The informant described appellant's vehicle as a blue van "with a wood grain." As the informant and Chappell were driving to appellant's home, Chappell saw the blue van. They changed direction and followed the van to West's residence, where informant made a controlled purchase.

According to the informant, appellant and West sold drugs at West's home from early morning to early afternoon. Appellant would deliver the drugs to West in the morning and come back later in the afternoon to pick up the proceeds. If the porch light was on at West's residence, then no drugs were for sale; if the light was off, then drugs could be purchased.

On June 16, 1999, the police began surveillance of West's and appellant's homes. Early that morning, appellant was observed driving from his residence on Water View Drive to West's home.

That same day, a different informant made a controlled buy at West's residence. He was unable to buy the drugs before appellant arrived. After appellant arrived, however, the porch light was switched off, and the informant then purchased narcotics.

On June 17, the confidential informant again went to West's home before appellant arrived and was told no narcotics were available. The porch light was on, and West told the informant that he was waiting for appellant to arrive with the cocaine. On that day, appellant left his home and stopped at 3943 Bridge Road, his mother's home, where he got out of his car and walked to the side of the house behind a large tree. "All [the police] could see was that he went to the side of the house or towards the side of the garage area," where he remained out of view for a few minutes. He then returned to his van and drove directly to West's residence. The confidential informant then made a purchase from appellant at West's home.

On June 18 at 9:00 a.m., the informant again attempted to make a purchase while the light was on, but West told him that appellant would be "en route shortly with some [cocaine]." At about the same time, appellant was observed driving into a Farm Fresh parking lot. Appellant met with an individual and then proceeded to Bridge Road. At Bridge Road, appellant again got out of the van and went to the side of the house for a short time. He then drove back to his residence, left again at 9:35 a.m., and drove to West's house.

Search warrants were obtained for both appellant's and West's residences. Appellant was stopped at approximately 9:45 a.m. "within a block or two from West's house," and the police searched his van. They found cocaine in sweatpants that were lying in the van between the driver and passenger seats. The police did not find any drugs on appellant.

Both the Brookwood and Waterview houses were searched. No drugs were found at either address. The arresting officers brought appellant back to the Waterview house, but appellant made no statement to Chappell or to any other officer while Chappell was there. Chappell then left to obtain a search warrant for the Bridge Road property. Chappell testified, "[Biased on what the surveillance was and the observation was, then I felt there was a reason to go to Bridge Road." Chappell went to the magistrate and obtained a search warrant for that address.

In the affidavit presented to the magistrate to obtain the search warrant for the Bridge Road residence, Chappell stated:

On 6-17-99, CI # 2 was sent to 6117 Brookwood Dr. to purchase cocaine. CI # 2 was told by "C.W." that he didn't have anymore cocaine and that he was waiting for "Gene" who was still at home to bring over the cocaine.

Surveillance was again established at 100 Waterview Rd. The home of Wilkins. Wilkins van was parked in the driveway of said address. Wilkins was observed coming out of the house carr[y]ing a white bag, he got into the van and drove to 6117 Brookwood Dr. Prior to stopping at 6117 Brookwood Dr., Wilkins stopped at 3943 Bridge Rd.[,] exited the van and was observed going towards the side door.

CI # 2 was given money and sent to 6117 Brookwood Dr. to purchase cocaine. Prior to leaving the CI # 2 was searched and found to have no controlled substances. CI # 2 was observed going to and inside 6117 Brookwood Dr. CI # 2 purchased cocaine from "Gene." CI # 2 advised that "Gene" and "C.W." had just got through cutting up a quantity of cocaine.

* * * * * * *

On 6-18-99, surveillance was established at 100 Waterview Rd. by Det. DeFreitas. Wilkins was observed coming out of the house and getting into his van, Virginia tag HP/56-561. Wilkins was then followed to a shopping center in the City of Chesapeake, Va. where he met up with a black male. After a brief conversation both Wilkins and the unknown left in different direction[s]. Wilkins was followed where he stopped at 3943 Bridge Rd. Got out of the vehicle and went up to the side of the house. Wilkins th[e]n returned a short time later and drove back directly back to his home at 100 Waterview Rd.

During the time Wilkins was driven back to his home, CI # 2 was at the home of "C.W." as directed by this [affiant] in attempts to purchase cocaine. "C.W." told CI # 2 that he didn't have any cocaine and that he was on the phone with "Gene". "C.W." added that "Gene" would be at the house shortly with cocaine. As this phone conversation was occurring between "Gene" and "C.W." Det. Karpowski observed "Gene" talking on a cellular phone while riding down the street.

At approximately 9:45 A.M., Eugene Wilkins was arrested with a quantity of cocaine on his person. When asked about where he had been earlier that morning Wilkins: stated that he had only went to the Food Lion and got some bananas and went back home.

Parked in the driveway of 3943 Bridge is a 1978 red & white Chevy El Camaro with Virginia tag PTQ-920. The registered owner is Eugene Wilkins. It was further learned that Wilkins 89 year old mother lives at the address.

Chappell, on cross-examination, conceded the police never saw appellant enter the El Camino or the Bridge Road house on either visit. The affidavit did not mention that appellant was briefly hidden from view by a "big tree" at the side of the house while at Bridge Road.

The search warrant was signed at 1:30 p.m. Chappell then called Detective M.K. Wright, who was already at the Bridge Road house. When Chappell told him that he had obtained the warrant, Wright entered the El Camino, which was parked behind the big tree on the side of the house, and recovered a brown paper bag containing cocaine.

While Chappell went to get the search warrant, Detective L.L. DeFreitas remained with appellant at the Waterview Road house. DeFreitas testified he Mirandized appellant from memory, and appellant said he understood those rights. The detective then asked whether appellant wished to speak with him without an attorney present, and appellant replied that he would. Around noon, appellant said he wanted to speak to a lawyer, and DeFreitas stopped his conversation with appellant. Appellant's wife, who was also present, "constantly" urged appellant to speak with the police and cooperate.

Around 2:30 p.m. appellant asked DeFreitas if he could talk with him in another room. At that point, appellant said he wished to cooperate and tell them where the drugs could be found. DeFreitas responded that he could not talk to appellant because he had asked for a lawyer. Appellant said he had changed his mind and wanted to talk. Appellant then said he would take the officer to the place where the drugs were located.

They drove to the Bridge Road address. Appellant led the detective to the El Camino¹ and indicated the drugs were in the backseat. They then learned the drugs had already been recovered by other officers pursuant to the search warrant. The trial judge found they "arrived only moments after Detective Wright recovered the evidence."

Later that day, after DeFreitas described the surveillance to him, appellant said, "Okay, so you know that I come here, pick it up, and then go over to CW's. I only sold a little. I use as well. It's for pain. What's the difference, I'll be gone soon anyway." When he asked how much he sold, appellant said he needed to talk to an attorney, and the conversation ceased.

II. MIRANDA RIGHTS

Appellant claims the evidence was insufficient for the trial court to find DeFreitas informed appellant of all his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In examining this claim, the evidence is considered in the light most favorable to the Commonwealth, and the trial court's determination that appellant was informed of these rights will not be overturned unless plainly wrong or without...