Wilson v. Com.

• Decision Date: 06 April 1993
• Docket Number: No. 0191-91-2,0191-91-2
• Citation: Wilson v. Com., 429 S.E.2d 229, 16 Va.App. 213 (Va. App. 1993)
• Parties: Alvin McKay WILSON v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 229

429 S.E.2d 229

16 Va.App. 213

Alvin McKay WILSON v. COMMONWEALTH of Virginia.

Record No. 0191-91-2.

Court of Appeals of Virginia.

April 6, 1993.

Rehearing En Banc Granted May 26, 1993.

William B. Kerkam, III, Richmond (Bremner, Baber & Janus, on brief), for appellant.

Thomas C. Daniel, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BAKER, COLEMAN and BRAY, JJ.

COLEMAN, Judge.

In this appeal, Alvin McKay Wilson, the appellant, asserts that the trial court erred when it (1) failed to grant his motion to suppress evidence for the reason that the search warrant did not adequately describe the premises to be searched; (2) permitted the Commonwealth to introduce testimony that the witness on prior occasions had purchased cocaine from the appellant; and (3) held the evidence was sufficient to support his bench trial conviction for possessing cocaine with the intent to distribute. We hold that the trial court did not err in denying Wilson's motion to suppress the evidence, but that it erred by admitting testimony that Wilson previously had sold cocaine. We cannot say that the error was harmless. Because we reverse and remand the conviction for trial error, we do not address the sufficiency of the evidence.

Viewing the evidence in the light most favorable to the Commonwealth and granting to it all reasonable inferences fairly deducible therefrom, Higginbotham v Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975), the record shows that on June 20, 1990, Officer John Ward of the Richmond police executed a search warrant at Wilson's apartment. In the apartment, Ward found two razor blades in the bathroom, one in the kitchen, and one in the living room, each containing cocaine residue. He also found a plastic bag in a kitchen drawer that contained a bottle of Inositol, a strainer, and cocaine residue. He further found a bowl in the kitchen that held six plastic bags containing a total of five and one-half grams of cocaine, and on a top shelf of a cabinet, he found a glass beaker containing cocaine. In addition, he found in the kitchen, on top of a refrigerator, several plastic baggies with the corners cut out and ten to fifteen similar baggies cut in the same manner in an open garbage can.

The affidavit made by Officer Ward, upon which the search warrant was issued, described the place to be searched as follows:

The entire first floor of the house located at 3615 Stockton St. and the curtilage thereof. Also any and all containers in this dwelling house in which this controlled substance could be stored. This location is in the City of Richmond, South of the James River.

The items to be searched for were described as follows:

Cocaine a Schedule II controlled substance, all paraphernalia used in the packaging and distribution of this controlled substance. Also any and all records pertaining to the distribution of this controlled substance.

The facts constituting the basis for probable cause for the search were as follows:

On June 20, 1990 at approximately 1700 hours your affiant spoke with Detective A. Michael Scott of the Richmond Bureau of Police Intelligence Division and received the following information. Det. Scott had received the following information from a confidential reliable informant. The informant advised Det. Scott that while in the house located at 3615 Stockton St. the first floor. [sic] In the city of Richmond Virginia within the past 36 hours this informant observed an unknown B/M sell several small clear plastic bags of white powder substance to several unknown subjects as they entered the house. This informant has in the past used Cocaine and is familiar with its appearance and the different methods used in consuming, packaging and distributing this controlled substance. The packages the informant saw for sale at 3615 Stockton St. was [sic] Cocaine.

The affidavit further stated that the information received by Officer Ward was the result of personal knowledge and information from a reliable informant and another police officer, Detective A. Michael Scott.

The search warrant directed Officer Ward, or any other police officer, to search the premises known as "3615 Stockton St. (the entire 1st floor) for the following property, objects and/or persons: cocaine a Schedule II controlled substance, all paraphernalia used in the packaging and distribution of the controlled substance. Also any and all records pertaining to the distribution of this controlled substance."

Appellant moved to suppress the evidence found in the search. He argues that the premises searched is a unit of a multiple occupancy building, and neither the affidavit nor the search warrant properly described the premises to be searched.

At the suppression hearing, Ward testified that he was the affiant who procured the warrant to search the entire first floor of 3615 Stockton. He also participated in the search. He identified enlarged photographs of the appellant's apartment building. One of the photos shows the street numbers "3615" displayed on the building adjacent to the first-floor door, which is the entrance through which the officers entered the appellant's apartment to execute the search warrant. At this entrance door is a small stoop reached by three steps. A post attached to the stoop contained the number "7." The pictures also show that the numbers "6" and "8" had been placed at other doors through which entry could be made from outside the building. There is no jointly used hallway inside the building with access to the various apartments. When the officers entered the apartment, Ward did not know the occupants' names, and appellant was not present when the search was conducted.

Officer Ward did not know that the building contained multiple units until after he had entered appellant's apartment. It appeared to him to be just "a medium sized home." He testified that he had been "given a description [by Detective Scott] of where to go in at, but [he] did not put that in the affidavit ... we were just told what door to go through." It was Ward's usual practice to obtain from the informants information identifying which entrance was nearest the drugs in order to prevent the contraband being disposed of before it could be reached. Thus, other doors were not significant to his entry and search.

I.

"Under the Constitution of the United States and the statutory law of Virginia it is essential to the validity of a search warrant that it describe with particularity the place to be searched." Manley v. Commonwealth, 211 Va. 146, 151, 176 S.E.2d 309, 314 (1970), cert. denied, 403 U.S. 936, 91 S.Ct. 2245, 29 L.Ed.2d 716 (1971). "All that is required, however, is that the description be such that the officer charged with executing the search warrant can, with reasonable effort, ascertain and identify the place intended." Id. While the general rule is that a search warrant directed against a multiple-occupancy structure is invalid if it fails to describe the particular sub-unit to be searched, there are exceptions to the general rule. For example, a warrant is valid if it provides the searching officers with sufficient information to identify, without confusion or excessive effort, the apartment unit intended to be searched. Id. at 151-52, 176 S.E.2d at 314.

In Brown v. Commonwealth, 212 Va. 672, 187 S.E.2d 160 (1972) (per curiam), the warrant described the premises to be searched as "a certain Three Story Rock Cement Dwelling" known as "5301-Huntington Ave., Newport News, Va." Id. at 673, 187 S.E.2d at 161. The affidavit contained reference to an "unnamed informer" who reported having seen marijuana prepared, dispensed and smoked "on the third floor" of the described premises. The officer who searched the "third floor" unit testified that he did not know the names of the occupants of the third floor unit but that he did know there was only one unit there. In a per curiam opinion, the Supreme Court affirmed Brown's conviction, holding that the warrant that identified the address met constitutional requirements where the affidavit indicated that the contraband had been observed on the third floor, which the officer knew to be a separate living unit. Id. at 674, 187 S.E.2d at 161.

In Robinson v. Commonwealth, 219 Va. 520, 248 S.E.2d 786 (1978) (per curiam), the issue was whether the search warrant described the premises to be searched with the particularity required by the Fourth Amendment. In affirming the trial court, the Supreme Court, in a per curiam opinion, stated:

The Fourth Amendment to the United States Constitution requires that a search warrant "particularly" describe the place to be searched. This requirement is met "if the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended." We have held that the same mandate of particularity of description and the same test of compliance are applicable under the Fourth Amendment and under the Virginia statutes. ¹

Id. at 522-23, 248 S.E.2d at 788 (citations omitted).

In Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987), the search warrant described the place to be searched as the third floor apartment of a multiple unit building. There were multiple units in that building and more than one on the third floor. The Court upheld the validity of the search warrant, holding that police conduct must be judged in light of the information available to them at the time they acted. Id. at 85-86, 107 S.Ct. at 1017-18.

At Wilson's suppression hearing, Officer Ward testified that the informant had described the location of the door through which entry should be made. The informant had told Officer Ward that this was the door through which he had entered and observed the narcotics. Before procuring the search warrant, the police officers had gone to 3615 Stockton Street and had observed the door and confirmed that the numbers "3615"...