Williams v. Com.

• Decision Date: 20 March 2007
• Docket Number: Record No. 0843-05-1.
• Citation: 642 S.E.2d 295,49 Va. App. 439
• Parties: Christopher Allen WILLIAMS v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

642 S.E.2d 295

49 Va. App. 439

Christopher Allen WILLIAMS v. COMMONWEALTH of Virginia.

Record No. 0843-05-1.

Court of Appeals of Virginia, Richmond.

March 20, 2007.

George U. Brooks, III (Wood & Brooks, on brief), Williamsburg, for appellant.

Eugene Murphy, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and BENTON, ELDER, FRANK, HUMPHREYS, CLEMENTS, KELSEY, McCLANAHAN, HALEY, PETTY and BEALES, JJ.

UPON REHEARING EN BANC

JAMES W. HALEY, JR., Judge.

This matter comes before the Court from a divided and unpublished panel decision rendered on March 14, 2006 and reported as Williams v. Commonwealth, 06 Vap UNP 0843051 (2006). By order of March 21, 2006, that panel decision was stayed, and a petition for rehearing en banc granted.

I.

Christopher Allen Williams, found guilty of possession of a firearm by a felon under Code § 18.2-308.2, asserts the trial court erred in denying his motion to suppress the firearm seized by police. We affirm.

II.

Initially we note, with respect to our review of a motion to suppress, "we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial." Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004) (citing Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 923-24 (2000)).

Furthermore, "[s]ince the constitutionality of a search and seizure under the Fourth Amendment involves questions of law and fact, we give deference to the factual findings of the trial court but independently decide whether, under the applicable law, the manner in which the challenged evidence was obtained satisfies constitutional requirements." Id. at 672-73 594 S.E.2d at 598 (citing McCain v. Commonwealth, 261 Va. 483, 490, 545 S.E.2d 541, 545 (2001)).

III.

On August 20, 2004, Sergeant Jeremy Barnett of the James City County Police Department was informed that appellant was staying with a girlfriend at 206-C Burton Woods Drive in that county. Records show that an apartment at that address was rented to Tara Bowman, and the appellant was not a tenant under the lease. Sergeant Barnett had in his possession two arrest warrants for appellant, one a capias from the Juvenile and Domestic Relations District Court of James City County and the other a show cause from the circuit court of that county.

206-C Burton Woods Drive is located in a two-story apartment complex, with both "upstairs" and "downstairs" apartments. The apartment here involved is an "upstairs" apartment, that is, there is a front door, which opens upon a stairway leading directly to the second floor where the rooms are actually located. A banister is situated at the top of the stairs.

Sergeant Barnett knocked on the front door of the apartment at approximately 9:20 p.m. on the 20th. Ms. Bowman opened the door, and Sergeant Barnett asked if he could enter. Ms. Bowman said he could, but asked him to delay coming upstairs so she could put on additional clothing. She shut the door. Two or three minutes later she returned and advised Sergeant Barnett that she had spoken with her brother, a Newport News police officer, who advised her not to let the police enter without a search warrant. She denied appellant was in the apartment and said she had not seen him for a year. Sergeant Barnett advised her that he would attempt to obtain a search warrant and withdrew to a sidewalk in the apartment complex leading to the front door.

Five to ten minutes later Sergeant Barnett saw Ms. Bowman, and a child he estimated at "seven to ten years old," leave the apartment, enter a vehicle, and leave. At trial, the transcript shows the following exchange during the cross-examination of Sergeant Barnett:

Q: Okay. You never talked to Mr. Williams —

A: I did not.

Q: — yourself?

A: No, sir.

Q: But you were present the whole time?¹

A: Yes.

Q: And after Ms. Bowman and her daughter left, there was no indication anybody else was in the apartment?

A: From some of the neighbors, yes, there was. We had several people come up —

Q: From your observations.

A: Not immediately, no, sir. [sic] Not until after some conversation with an individual on the phone did I see somebody inside the apartment.

Q: Which was him?

A: Yes.

Q: Mr. Williams?

A: Yes.

Q: That's the only person you saw?

A: Yes, but at the time I didn't know it was him.

* * * * * *

A: I can't say for sure there was no one else in the apartment, and the only thing I could see was a figure in the window. It was dark inside the apartment. I would assume it was him.

Within an hour, a woman approached Sergeant Barnett and advised she was Ms. Bowman's sister. Barnett testified the woman told him that "Ms. Bowman had come to her residence scared ... and asked [her] to relate to us, the police, that Mr Williams was inside the apartment and he had a gun and that we had her permission to go inside."²

Officer Patrick McFarland was standing "out in front of the apartment complex." Almost contemporaneous to Sergeant Barnett's conversation with Ms. Bowman's sister, McFarland saw a woman "crying and talking on [a cell] phone." This woman, Judy Pressey, approached McFarland, and advised him she was speaking with her brother Chris, the appellant, and permitted the officer to talk on the cell phone. Officer McFarland advised appellant he was a policeman, and appellant "interrupted me and said that the door was barricaded, and that he was armed . . . [and] . . . that he was going to come out shooting if we came in from the front door." At this point, police called a SWAT team.

One member of the SWAT team was Officer Jerry White, a negotiator. He telephoned apartment 206-C and identified himself. The appellant repeatedly told Officer White that he was "heavily armed and the door is barricaded. If anybody comes through that he's going to open fire." He stated he had "a handgun." After several hours of negotiation, Officer White persuaded appellant to surrender. He told appellant "to leave the handgun at the top of the steps which leads down to the front door." Appellant, unarmed, exited the front door with his hands raised and was taken into custody. During the negotiation process, a number of neighbors and members of appellant's family had arrived on the scene.

Immediately following the surrender, Sergeant Barnett and two other officers opened the front door and proceeded up the stairs. The purpose of the entry, as Sergeant Barnett testified, was for a "protective sweep and attempt to locate a handgun that we believed was inside." A handgun was found in plain view "on top of the banister at the top of the staircase." The sergeant and the other officers searched the apartment "to see if there was anyone else in there," "for the presence of other people." The "sweep" did not involve a search into "cupboards" or "drawers" but only into areas in which a person could be found. When asked if he was not going in just to look for other people, but also for the gun, Sergeant Barnett replied, "Yes, that was secondary. The securing of the weapon."

The weapon recovered from the top of the staircase, where appellant had been directed by the negotiator to place it, was identified as a loaded, functional semiautomatic nine-millimeter handgun. Barnett testified that the "sights, trigger, hammer, all seemed to be functional." In response to the trial court's question "Is it operational," Barnett testified "as best as I can tell, yes, Your Honor. The slide goes forward, trigger works, the hammer ... the barrel's intact." The appellant was indicted for possession of a firearm after having been previously convicted of a violent felony, in violation of Code § 18.2-308.2. At trial, appellant argued a motion to strike on the basis that the Commonwealth failed to show the firearm seized was operational. The trial court denied that motion, and appellant appealed the issue to this Court.

A motion to suppress the handgun was filed on the grounds that the warrantless search and seizure of the same violated Code § 19.2-60³ and the Constitutions of Virginia and the United States. After hearing evidence and relevant argument, the trial court denied the motion, finding, inter alia, that exigent circumstances permitted the police "to do a protective sweep to make sure there's no one else in the apartment who has access to this weapon" and recover the loaded weapon when "the mother and young child ... will be coming back into the house."⁴

After finding the appellant guilty, and in accordance with the mandatory minimum provisions of Code § 18.2-308.2, the trial court sentenced appellant to five years in the penitentiary.

IV.

Our analysis begins with firm recognition of the constitutional principles that warrantless searches are presumptively unreasonable and "that the `physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732 (1984) (quoting United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972)).

Nonetheless, "[t]he Fourth Amendment [of the United States Constitution] is

not, of course, a guarantee against all searches and seizures, but only against unreasonable searches and seizures." United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985) (emphasis in original). See also Jones v. Commonwealth, 29 Va.App. 363, 368-69, 512 S.E.2d 165, 167 (1999). In determining reasonableness, the United States Supreme Court has held on numerous occasions, "there is `no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.'" Michigan v. Long, 463 U.S. 1032, 1046, 103 S.Ct. 3469, 3479, 77 L.Ed.2d 1201 (1983) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct....