David Evan Brown v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: October 16, 2001
• Docket: 1666002
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder and Clements Argued at Richmond, Virginia

DAVID EVAN BROWN MEMORANDUM OPINION * BY v. Record No. 1666-00-2 CHIEF JUDGE JOHANNA L. FITZPATRICK OCTOBER 16, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Robert W. Duling, Judge

Matthew T. Paulk, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Susan M. Harris, Assistant Attorney General (Mark L. Earley, Attorney General; Shelly R. James, Assistant Attorney General, on brief), for appellee.

David Evan Brown (appellant) was convicted in a bench trial

of possession of a firearm while in possession of cocaine with

intent to distribute, possession with intent to distribute

cocaine, and possession of a firearm by a convicted felon.

Prior to trial, appellant was held without bond. Appellant

contends the trial court erred in (1) failing to uphold a facial

challenge to the constitutionality of Code § 19.2-120(B), and

(2) refusing to suppress evidence recovered during a

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. warrantless, nonconsensual search of appellant's apartment. For

the following reasons, we affirm appellant's convictions.

I. BACKGROUND

Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to that evidence all

reasonable inferences fairly deducible therefrom. See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

The trial court's judgment will not be set aside unless plainly

wrong or without evidence to support it. See Hunley v.

Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999).

A. OFFENSE

So viewed, the evidence established that three police

officers, including Detective John O'Connor, were on patrol in

an unmarked van in an area known to be an open air drug market.

They were flagged down in front of 2310 North 23rd Street by a

man they believed was attempting to sell them drugs. O'Connor

saw an elderly man sitting on the porch of the residence.

O'Connor asked him if it was his apartment. The man said it was

not and he was there to visit "Heavy."

O'Connor went to the apartment, and appellant and

codefendant Whittaker answered the door. O'Connor discussed the

drug activity in the area with them. Appellant told O'Connor he

smoked marijuana but did not have any at the time. O'Connor

asked Whittaker if he could come in and look in the trash can.

- 2 - She said she had just emptied the trash, but brought the trash

can to him. O'Connor saw plastic bags with the corners removed

stuck to the bottom of the trash can. O'Connor then asked

Whittaker if he could look in the trash can outside. She told

him it was "out the back door." She met O'Connor behind the

residence and indicated which trash can contained the trash she

recently emptied. Inside the can were numerous bags with the

corners removed and "corner bags" with white powder residue.

Based on his training and experience, O'Connor believed these

items to be evidence of drug trafficking.

O'Connor asked Whittaker if there was anyone else inside

the apartment. Whittaker said "no." O'Connor then asked her if

there were any guns inside. Whittaker hesitated, looked away,

and then stated "[N]ot that I know of." O'Connor returned to

the front door and asked appellant for permission to search the

residence. Appellant refused and said "his girlfriend Tonya"

was inside. Based on the conflicting responses, O'Connor became

concerned for his safety and the possible destruction of

evidence. O'Connor went into the house, looked for other

occupants and finding none, secured the premises while he

obtained a search warrant.

At trial, appellant moved to suppress the evidence of drugs

and the gun because the officers entered his apartment without

first obtaining a warrant. The trial court denied the motion

based on the "totality of the circumstances" and determined that

- 3 - credible evidence supported the officer's concern for his safety

and the possible destruction of evidence.

B. BOND

Appellant was arraigned in general district court, and his

bond was set at $101,000. The Commonwealth appealed requesting

the circuit court to apply the presumption of Code

§ 19.2-120(B). Appellant presented no evidence to rebut the

presumption. The circuit court revoked appellant's bond and

denied bail. Appellant did not appeal the decision to deny

bond.

II. CONSTITUTIONALITY OF CODE § 19.2-120(B)

Appellant contends that Code § 19.2-120(B) 1 is

unconstitutional as drafted because it violates the Due Process

1 Code § 19.2-120(B) provides in pertinent part:

The judicial officer shall presume, subject to rebuttal, that no condition or combination of conditions will reasonably assure the appearance of the person or the safety of the public if the person is currently charged with:

* * * * * * *

3. A violation of §§ 18.2-248, 18.2-248.01, 18.2-255 or § 18.2-255.2 involving a Schedule I or II controlled substance if . . . the maximum term of imprisonment is ten years or more and the person was previously convicted of a like offense[;]

4. A violation of §§ 18.2-308.1, 18.2-308.2, or § 18.2-308.4 and which relates to a firearm and provides for a minimum, mandatory sentence; [or]

- 4 - Clause of the Fifth Amendment. Appellant concedes that he does

not challenge the applicability of the statute as it applies to

him. We hold that appellant is barred from raising a facial

constitutional challenge.

An individual may only challenge the constitutionality of a

law as it applies to him or her. See Coleman v. City of

Richmond, 5 Va. App. 459, 463, 364 S.E.2d 239, 241-42 (1988)

(citing Grosso v. Commonwealth, 177 Va. 830, 839, 13 S.E.2d 285,

288 (1941)). "That the statute may apply unconstitutionally to

another is irrelevant. One cannot raise third party rights."

Id. at 463, 364 S.E.2d at 242.

Nor is the instant case one of the limited exceptions to

the general standing required to maintain such a challenge.

This is neither a case in which the First Amendment is

implicated nor is it an instance where there is no other

"effective avenue of preserving [his] rights." See Broderick v.

Oklahoma, 413 U.S. 601 (1973); Code § 19.2-124. 2

For the foregoing reasons, we conclude that appellant falls

within the general rule that one who attacks the

5. Any felony, if the person has been convicted of two or more offenses described in subdivision 1 or 2, whether under the laws of this Commonwealth or substantially similar laws of the United States[.] 2 We note that appellant failed to appeal the circuit court's denial of his pretrial bond pursuant to Code § 19.2-124. This issue is moot because he now stands convicted of the underlying offenses. See Murphy v. Hunt, 455 U.S. 478 (1982).

- 5 - constitutionality of a statute must establish that his own

rights are infringed and, thus, he has no standing to facially

challenge Code § 19.2-120(B).

III. MOTION TO SUPPRESS

Appellant next contends the trial court erred in allowing

evidence found in the warrantless search of his residence. In

reviewing the trial court's denial of a motion to suppress, we

view the evidence in the light most favorable to the

Commonwealth. See Marable v. Commonwealth, 27 Va. App. 505,

509, 500 S.E.2d 233, 235 (1998). On appeal, the burden is on

appellant to show that the denial of the motion to suppress was

reversible error. See Purdie v. Commonwealth, 36 Va. App. 178,

184, 549 S.E.2d 33, 36 (2001). "'Ultimate questions of

reasonable suspicion and probable cause' . . . involve questions

of both law and fact and are reviewed de novo on appeal." McGee

v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261

(1997) (en banc) (quoting Ornelas v. United States, 517 U.S.

690, 691 (1996)). The appellate court is "bound by the trial

court's findings of historical fact unless 'plainly wrong' or

without evidence to support them and [it] give[s] due weight to

the inferences drawn from those facts by resident judges and

local law enforcement officers." Id. at 198, 487 S.E.2d at 261.

A trial court's determination of the facts is given great weight

because it is "not limited to the stark, written record," but

"has before it the living witnesses and can observe their

- 6 - demeanors and inflections." Satchell v. Commonwealth, 20 Va.

App. 641, 648, 460 S.E.2d 253, 256 (1995).

Our analysis in this case is controlled by Crosby v.

Commonwealth, 6 Va. App. 193, 367 S.E.2d 730 (1988). In Crosby,

we held a limited "securing the premises" exception to the

warrant requirement is available to law enforcement when

necessary to preserve evidence and ensure their safety. The

criteria for applying this exception includes: the police must

(1) have probable cause to believe evidence is on the premises;

(2) believe delaying entry would create a substantial risk that

the evidence will be lost or destroyed; and (3) not create their

own exigencies. Id. at 201, 367 S.E.2d at 735. See Segura v.

United States, 468 U.S. 796 (1984).

"'[I]n determining whether . . . circumstances were

sufficient to overcome the presumption of unreasonableness and

justify a warrantless entry, the court must examine the

circumstances as they reasonably appeared to the law enforcement

officers on the scene [when the decision to enter was made].'"

Crosby, 6 Va. App. at 201, 367 S.E.2d at 735 (quoting Verez v.

Commonwealth, 230 Va. 405, 411, 337 S.E.2d 749, 753 (1985)).

Because only a "limited security check of the premises for

people who might destroy evidence is warranted" under this

exception, the circumstances justifying entry are not as

stringent as the "exigent circumstances" requirement. Id.

- 7 - Applying this standard to the instant case, the evidence

supports the trial court's finding of admissibility. The trial

court believed O'Connor's version of events.

[B]ased on what I found on both the trash cans; activity I had seen when we pulled up, the person flagging us down and the person sitting outside of the house; the bag corners in the trash can inside of the house; the bags with the residue and the bag corners in the rear trash can; the statements by Ms. Whittaker that there wasn't anybody else in the house and then Mr. Brown telling me that there was somebody else in the house; her answer about firearms, I felt at that time I should go in and make sure there was nobody in there with a weapon or that was destroying the drugs.

His testimony provided probable cause to believe that drugs

were in the apartment; that there might be others in the

apartment with access to firearms and the ability to destroy the

evidence; and lastly, the police did nothing to create the

exigency.

Accordingly, we affirm appellant's convictions.

Affirmed.

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