Charles Burbbick, Jr., etc. v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: October 3, 1995
• Docket: 0601942
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Annunziata Argued at Richmond, Virginia

CHARLES BURBBICK, JR., A/K/A SHADUR A. BORDEN, S/K/A CHARLES BURBICK MEMORANDUM OPINION * BY v. Record No. 0601-94-2 JUDGE LARRY G. ELDER OCTOBER 3, 1995 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY John F. Daffron, Jr., Judge

Michael HuYoung (Jane Chittom; Shuford, Rubin & Gibney, on brief), for appellant.

Margaret Ann B. Walker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Charles Burbbick, Jr. (appellant) appeals his convictions

for five counts of statutory burglary in violation of Code

§ 18.2-91; one count of grand larceny in violation of Code

§ 18.2-95; and possession of burglary tools in violation of Code

§ 18.2-94. Appellant contends the police lacked probable cause

to search the vehicle in which he was riding, thereby rendering

the fruits of the search inadmissible. We hold that because the

police had probable cause to conduct a warrantless automobile

search, any evidence obtained therefrom was admissible. We

therefore affirm appellant's convictions.

On July 16, 1993, the Chesterfield Police Department

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. released an internal memorandum concerning a string of local

residential burglaries. The memo requested officers to be on the

lookout for an older silver Toyota with temporary tags. On

August 12, 1993, at approximately 11 a.m., Officer William

Kcraget spotted a silver Toyota with temporary tags on Beach Road

in Chesterfield County. Three people occupied the Toyota:

appellant (a white male), the driver (a black female), and a

juvenile (not described in testimony). Officer Kcraget observed

the female drop off appellant and the juvenile in the 7400 block

of Beach Road before they walked to the residence at 7401 Beach

Road. Another officer (Officer McCann, who did not testify) told

Officer Kcraget that he observed the two persons walk to the rear

of the house and enter the back yard. A short time later,

appellant and the juvenile re-appeared at the front of the

residence and returned to the Toyota. Officer Kcraget immediately approached the back door of the

house, where he discovered that it was "slightly ajar" and that

there were pry marks on the frame, indicating a forced entry.

Officer Kcraget noticed the house was ransacked and that two

VCR's and a pair of binoculars were strewn in the bushes near the

back door. Officer Kcraget immediately radioed Officer Richard

Davis (who was assisting in the surveillance of the Toyota),

informed him that a burglary had just occurred at 7401 Beach

Road, and asked him to stop the Toyota. Officer Davis stopped

the vehicle, searched it, arrested appellant, and, without a

2 warrant, confiscated assorted burglary tools from the vehicle,

including a vise and a screwdriver. Officer Davis did not

recover any possessions from the residence at 7401 Beach Road.

Appellant was given his Miranda warnings, executed a rights-

waiver form, and confessed to nine other burglaries, although he

did not confess to the Beach Road burglary.

Prior to his bench trial, appellant moved to suppress the

evidence seized by the police, including his confession, but the

trial court denied the motion. The trial court convicted

appellant on all counts. Assuming without deciding that appellant had standing to

contest the search, we hold the trial court did not err in

finding probable cause existed for the police to conduct a

warrantless search of the Toyota. Under the automobile exception

to the fourth amendment's warrant requirement, an automobile may

undergo a warrantless search if there is probable cause to

believe that the vehicle contains evidence of a crime. United States v. Ross, 456 U.S. 798, 806-08 (1982); see also Vass v.

Commonwealth, 214 Va. 740, 743-44, 204 S.E.2d 280, 283 (1974).

We will not disturb a trial court's refusal to suppress evidence

seized in a warrantless search of an automobile unless the

holding is plainly wrong or unsupported by the evidence, when

viewed in the light most favorable to the Commonwealth.

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,

48 (1991).

3 A warrantless arrest and search are constitutionally

permissible if "at the moment of arrest [or search], the

arresting officer [has] knowledge of sufficient facts and

circumstances" to justify a reasonable belief that an offense has

been committed. Bryson v. Commonwealth, 211 Va. 85, 86, 175

S.E.2d 248, 250 (1970). Explained another way, probable cause is

more than "mere suspicion," DePriest v. Commonwealth, 4 Va. App.

577, 585, 359 S.E.2d 540, 544 (1987), cert. denied, 488 U.S. 985

(1988), and it "deals with probabilities, . . . factual and

practical considerations in every day life on which reasonable

and prudent [persons], not legal technicians, act." Derr v.

Commonwealth, 242 Va. 413, 421, 410 S.E.2d 662, 666 (1991).

Based on the facts described above, we believe that a

"reasonable and prudent" person would have had cause to believe

that a burglary had just been committed, see Derr, 242 Va. at

421, 410 S.E.2d at 666, and that the fruits of the crime may have

been in the Toyota.

Accordingly, we affirm the convictions. Affirmed.

4 Benton, J., dissenting.

To justify the search of the vehicle, the evidence must

establish that the police had probable cause to believe the

vehicle contained evidence of a crime. United States v. Ross,

456 U.S. 798, 809 (1982). No evidence in this record supports

the trial judge's conclusion that probable cause existed.

"Probable cause . . . must be based on more than speculation,

suspicion, or surmise that [evidence of] a crime might be . . .

[found]." Alexander v. Commonwealth, 19 Va. App. 671, 674, 454

S.E.2d 39, 41 (1995).

The evidence proved that Burbbick and a juvenile left an

automobile and walked into the yard of a residence. The unfenced

yard was big, wooded, and traversed by a creek. Although the

evidence proved that a police officer was observing the rear of

the residence, that officer did not testify. No evidence proved

that Burbbick entered the residence, attempted to enter the

residence, or did any activity other than enter the rear yard.

No evidence proved the length of time Burbbick was in the yard.

When Burbbick and the juvenile left the yard, they re-

entered the vehicle. After the vehicle drove away, a police

officer who could not see the rear of the residence went to the

residence, saw a rear door slightly ajar, and saw some household

items in bushes five feet from the door. The officer's

observations and the evidence that led to the initial

surveillance of the vehicle provided the police with a basis to

5 have a reasonable articulable suspicion that a crime may have

occurred sometime that day. Even if those facts would justify a

Terry stop, the evidence proved on this record did not provide

probable cause to believe Burbbick had broken into the residence.

Indeed, the officer who observed the opened door and the

items in the bushes testified that he did not know whether the

items were there before Burbbick entered the yard. The officer

who was in a position to see the rear of the residence when

Burbbick was in the yard did not testify that Burbbick put the

items in the bushes. Significantly, no evidence proved that

Burbbick was at the rear of the residence for a sufficient amount

of time to break and enter the residence and to remove items to

the bushes. Furthermore, no testimony established that Burbbick or the

juvenile had in their hands or possessed any item, tool, or

equipment when they left the vehicle or re-entered the vehicle.

Any suspicion that the officer may have had that the vehicle

contained evidence of a crime is not manifested by any facts

proved on this record.

For these reasons, I would reverse the trial judge's failure

to suppress the evidence.