COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Felton and Kelsey Argued by teleconference
COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 0666-03-1 JUDGE WALTER S. FELTON, JR. AUGUST 12, 2003 EDWIN LOUIS GREENE, JR.
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Wilford Taylor, Jr., Judge
Donald E. Jeffrey, III, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellant.
No brief or argument for appellee.
Pursuant to Code § 19.2-398, the Commonwealth appeals the
judgment of the trial court granting Edwin Greene's motion to
suppress evidence. The Commonwealth contends that Officer
Christopher Hake possessed probable cause to search the vehicle in
which Greene was a passenger and all containers found therein
after Officer Hake observed marijuana and a concealed weapon in
plain view within the vehicle. As a result, the Commonwealth
argues no Fourth Amendment violation occurred and that the trial
court erred in granting Greene's motion to suppress evidence. For
the following reasons, we reverse the judgment of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I. BACKGROUND
On November 29, 2002, at approximately 3:00 a.m., Officer
Hake stopped a vehicle he observed running a red light. Upon
confronting the driver, he noted an open beer bottle in the cup
holder near the driver. He also observed Greene in the
passenger seat, who appeared to be "either passed out or
asleep." Officer Hake asked the driver for his license and
vehicle registration. When the driver opened the glove box, a
small bag of marijuana "fell onto the door of the glove box
itself and sat there." The driver attempted to conceal it with
his arm. He grabbed his vehicle registration, quickly closed
the glove box, and handed his registration to Officer Hake.
A second officer arrived to backup Officer Hake. At that
time Officer Hake moved to the passenger side of the vehicle,
opened the door, and asked Greene to step out of the vehicle so
that he could retrieve the marijuana from the glove box. Greene
complied. As he was getting out of the car, the movement of his
feet pulled away a grocery bag and some clothing located on the
floorboard, revealing a semiautomatic handgun. Greene was
directed to place his hands on his head and remain where he
stood. Officer Hake then escorted Greene to a police car.
Officer Hake returned to the stopped vehicle. He retrieved
the handgun and marijuana and conducted a further search of the
vehicle to determine whether other narcotics or weapons were
there. During the search, Officer Hake found several pieces of
- 2 - clothing located in the backseat. One of those items was a
coat. Officer Hake reached into the coat's pockets and
discovered a cigar tube that was cut in half and wrapped in
black electrical tape. He opened the cigar tube and discovered
a white residue that was later determined to be cocaine. 1
Following the search, Officer Hake gave Miranda warnings to
the driver of the vehicle and began questioning him about the
handgun and marijuana. 2 As Officer Hake spoke with the driver,
Greene stated that he was cold. Officer Hake retrieved the coat
that had contained the cigar tube. When Greene acknowledged
that the coat was his, Officer Hake gave him Miranda warnings,
and began questioning him about the cigar tube found in the
coat. 3
On March 5, 2003, a suppression hearing was held. Greene
contended that he had a reasonable expectation of privacy in the
coat, which was violated. He also contended that because the
nature of the contraband in the cigar tube was not readily
apparent without further examination by the officer, his opening
1 Officer Hake testified at trial that when he discovered the cigar tube he suspected it contained crack cocaine. He stated that "[o]ver the years, in working with the Hampton Police Division by encountering individuals on the street, I've noticed they've carried cigar tubes to carry crack cocaine and other paraphernalia such as marijuana." 2 The driver of the vehicle admitted possession of the marijuana and the handgun. 3 No issue as to the admissibility of any responses resulting from the questioning is presented in this appeal.
- 3 - of the cigar tube was an unlawful search. The Commonwealth
asserts that once Officer Hake located the marijuana and
handgun, which the driver admitted were his, in plain view
within the vehicle, he had probable cause to search the entire
interior compartment of the vehicle. The trial court granted
Greene's motion to suppress the evidence.
II. ANALYSIS
In reviewing a pretrial appeal, we "view the evidence in
[the] light most favorable to [the defendant], the prevailing
party below, and we grant all reasonable inferences fairly
deducible from that evidence. We will not reverse the trial
judge's decision unless it is plainly wrong." Commonwealth v.
Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991)
(citing Commonwealth v. Holloway, 9 Va. App. 11, 20, 384 S.E.2d
99, 104 (1989)).
The Commonwealth argues on appeal that the trial court
erred in granting Greene's motion to suppress. It contends that
the cocaine found inside Greene's coat was obtained in the
course of a lawful, warrantless search of the vehicle in which
the coat was located. We agree.
"Ultimate questions of reasonable suspicion and probable cause to make a warrantless search" involve questions of both law and fact and are reviewed de novo on appeal. Ornelas v. United States, 517 U.S. 690, [691], 116 S. Ct. 1657, 1659, 134 L. Ed. 2d 911 (1996). In performing such analysis, we are bound by the trial court's findings of historical fact unless "plainly wrong" or
- 4 - without evidence to support them and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers. Id. at [699], 116 S. Ct. at 1663. We analyze a trial judge's determination whether the Fourth Amendment was implicated by applying de novo our own legal analysis of whether based on those facts a seizure occurred.
McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,
261 (1997) (footnote omitted).
In Wyoming v. Houghton, 526 U.S. 295 (1999), police located
a syringe in the shirt pocket of the male driver, David Young.
Responding to the officer's questions, Young indicated that he
used the syringe to take drugs. The backup officers
subsequently ordered Young's girlfriend and Sandra Houghton out
of the vehicle. One officer began searching the vehicle for
contraband based on Young's statement. In the backseat, he
found a purse that Houghton identified as hers. The officer
searched the purse and located illegal drugs and drug
paraphernalia. In reversing the Wyoming Supreme Court, the
United States Supreme Court found no Fourth Amendment violation
in the search of the purse. It held that "police officers with
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COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Felton and Kelsey Argued by teleconference
COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 0666-03-1 JUDGE WALTER S. FELTON, JR. AUGUST 12, 2003 EDWIN LOUIS GREENE, JR.
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Wilford Taylor, Jr., Judge
Donald E. Jeffrey, III, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellant.
No brief or argument for appellee.
Pursuant to Code § 19.2-398, the Commonwealth appeals the
judgment of the trial court granting Edwin Greene's motion to
suppress evidence. The Commonwealth contends that Officer
Christopher Hake possessed probable cause to search the vehicle in
which Greene was a passenger and all containers found therein
after Officer Hake observed marijuana and a concealed weapon in
plain view within the vehicle. As a result, the Commonwealth
argues no Fourth Amendment violation occurred and that the trial
court erred in granting Greene's motion to suppress evidence. For
the following reasons, we reverse the judgment of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I. BACKGROUND
On November 29, 2002, at approximately 3:00 a.m., Officer
Hake stopped a vehicle he observed running a red light. Upon
confronting the driver, he noted an open beer bottle in the cup
holder near the driver. He also observed Greene in the
passenger seat, who appeared to be "either passed out or
asleep." Officer Hake asked the driver for his license and
vehicle registration. When the driver opened the glove box, a
small bag of marijuana "fell onto the door of the glove box
itself and sat there." The driver attempted to conceal it with
his arm. He grabbed his vehicle registration, quickly closed
the glove box, and handed his registration to Officer Hake.
A second officer arrived to backup Officer Hake. At that
time Officer Hake moved to the passenger side of the vehicle,
opened the door, and asked Greene to step out of the vehicle so
that he could retrieve the marijuana from the glove box. Greene
complied. As he was getting out of the car, the movement of his
feet pulled away a grocery bag and some clothing located on the
floorboard, revealing a semiautomatic handgun. Greene was
directed to place his hands on his head and remain where he
stood. Officer Hake then escorted Greene to a police car.
Officer Hake returned to the stopped vehicle. He retrieved
the handgun and marijuana and conducted a further search of the
vehicle to determine whether other narcotics or weapons were
there. During the search, Officer Hake found several pieces of
- 2 - clothing located in the backseat. One of those items was a
coat. Officer Hake reached into the coat's pockets and
discovered a cigar tube that was cut in half and wrapped in
black electrical tape. He opened the cigar tube and discovered
a white residue that was later determined to be cocaine. 1
Following the search, Officer Hake gave Miranda warnings to
the driver of the vehicle and began questioning him about the
handgun and marijuana. 2 As Officer Hake spoke with the driver,
Greene stated that he was cold. Officer Hake retrieved the coat
that had contained the cigar tube. When Greene acknowledged
that the coat was his, Officer Hake gave him Miranda warnings,
and began questioning him about the cigar tube found in the
coat. 3
On March 5, 2003, a suppression hearing was held. Greene
contended that he had a reasonable expectation of privacy in the
coat, which was violated. He also contended that because the
nature of the contraband in the cigar tube was not readily
apparent without further examination by the officer, his opening
1 Officer Hake testified at trial that when he discovered the cigar tube he suspected it contained crack cocaine. He stated that "[o]ver the years, in working with the Hampton Police Division by encountering individuals on the street, I've noticed they've carried cigar tubes to carry crack cocaine and other paraphernalia such as marijuana." 2 The driver of the vehicle admitted possession of the marijuana and the handgun. 3 No issue as to the admissibility of any responses resulting from the questioning is presented in this appeal.
- 3 - of the cigar tube was an unlawful search. The Commonwealth
asserts that once Officer Hake located the marijuana and
handgun, which the driver admitted were his, in plain view
within the vehicle, he had probable cause to search the entire
interior compartment of the vehicle. The trial court granted
Greene's motion to suppress the evidence.
II. ANALYSIS
In reviewing a pretrial appeal, we "view the evidence in
[the] light most favorable to [the defendant], the prevailing
party below, and we grant all reasonable inferences fairly
deducible from that evidence. We will not reverse the trial
judge's decision unless it is plainly wrong." Commonwealth v.
Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991)
(citing Commonwealth v. Holloway, 9 Va. App. 11, 20, 384 S.E.2d
99, 104 (1989)).
The Commonwealth argues on appeal that the trial court
erred in granting Greene's motion to suppress. It contends that
the cocaine found inside Greene's coat was obtained in the
course of a lawful, warrantless search of the vehicle in which
the coat was located. We agree.
"Ultimate questions of reasonable suspicion and probable cause to make a warrantless search" involve questions of both law and fact and are reviewed de novo on appeal. Ornelas v. United States, 517 U.S. 690, [691], 116 S. Ct. 1657, 1659, 134 L. Ed. 2d 911 (1996). In performing such analysis, we are bound by the trial court's findings of historical fact unless "plainly wrong" or
- 4 - without evidence to support them and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers. Id. at [699], 116 S. Ct. at 1663. We analyze a trial judge's determination whether the Fourth Amendment was implicated by applying de novo our own legal analysis of whether based on those facts a seizure occurred.
McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,
261 (1997) (footnote omitted).
In Wyoming v. Houghton, 526 U.S. 295 (1999), police located
a syringe in the shirt pocket of the male driver, David Young.
Responding to the officer's questions, Young indicated that he
used the syringe to take drugs. The backup officers
subsequently ordered Young's girlfriend and Sandra Houghton out
of the vehicle. One officer began searching the vehicle for
contraband based on Young's statement. In the backseat, he
found a purse that Houghton identified as hers. The officer
searched the purse and located illegal drugs and drug
paraphernalia. In reversing the Wyoming Supreme Court, the
United States Supreme Court found no Fourth Amendment violation
in the search of the purse. It held that "police officers with
probable cause to search a car may inspect passengers'
belongings found in the car that are capable of concealing the
object of the search." Id. at 307. See also Westcott v.
Commonwealth, 216 Va. 123, 125-26, 216 S.E.2d 60, 63 (1975).
In the case before us, Officer Hake discovered in plain
view a handgun and marijuana. Unquestionably, and conceded by
- 5 - Greene, Officer Hake possessed probable cause to search the
vehicle for additional weapons and illegal drugs. However,
Greene argues that Officer Hake was required to limit his search
to other items in plain view and not to invade closed containers
that were not immediately recognized to be contraband. He
insists that the officer had no particularized suspicion in
regard to the coat or the cigar tube to justify the search.
Greene's reasoning is misplaced.
Possessing probable cause resulting from the discovery of a
handgun and marijuana in plain view in the vehicle, Officer Hake
was permitted to inspect all personal belongings and containers
in the vehicle that were capable of concealing illegal drugs and
weapons. Houghton, 526 U.S. at 307. Officer Hake found a coat
in the backseat of the vehicle. The coat was certainly capable
of concealing additional illegal drugs or weapons.
Consequently, there was no Fourth Amendment violation when
Officer Hake searched Greene's coat.
Like the coat, the cigar tube was also capable of
concealing illegal drugs. Officer Hake testified that when he
discovered the cigar tube he suspected it contained crack cocaine.
He stated that "[o]ver the years, in working with the Hampton
Police Division by encountering individuals on the street, I've
noticed they've carried cigar tubes to carry crack cocaine and
other paraphernalia such as marijuana." As a result, the search
of the cigar tube was lawful.
- 6 - With probable cause present, and considering the
characteristics of the items sought, there was no Fourth Amendment
violation committed by Officer Hake when he searched Greene's coat
and the cigar tube found therein. Consequently, the trial court
erred in granting Greene's motion to suppress evidence.
The judgment of the trial court is reversed.
Reversed.
- 7 -