COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Baker Argued at Richmond, Virginia
DWAYNE CHRISTOPHER HOPKINS, S/K/A AURELIOUS HOPKINS, A/K/A DWAYNE HOPKINS MEMORANDUM OPINION * BY v. Record No. 0644-98-2 JUDGE LARRY G. ELDER APRIL 27, 1999 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Thomas N. Nance, Judge
Patricia P. Nagel, Assistant Public Defender (David J. Johnson, Public Defender, on brief), for appellant.
Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Dwayne Christopher Hopkins (appellant) appeals from his bench
trial conviction for possessing cocaine. On appeal, he contends
that the trial court erroneously (1) denied his motion to suppress
based on an illegal seizure and (2) admitted a certificate of
analysis into evidence without proof that it had been filed as
required by Code § 19.2-187. For the reasons that follow, we
disagree and affirm appellant’s conviction.
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. I.
DENIAL OF MOTION TO SUPPRESS
At a hearing on a defendant’s motion to suppress, the
Commonwealth has the burden of proving that a warrantless search
or seizure did not violate the defendant’s Fourth Amendment
rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d
656, 659 (1989); Alexander v. Commonwealth, 19 Va. App. 671, 674,
454 S.E.2d 39, 41 (1995). On appeal, we view the evidence in the
light most favorable to the prevailing party, granting to it all
reasonable inferences fairly deducible therefrom. See
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,
48 (1991). “[W]e are bound by the trial court’s findings of
historical fact unless ‘plainly wrong’ or 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.” McGee v. Commonwealth, 25 Va. App. 193, 198, 487
S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United States,
517 U.S. 690, 699, 116 S. Ct. 1657, 1659, 134 L. Ed. 2d 911
(1996)). However, we review de novo the trial court’s application
of defined legal standards such as probable cause and reasonable
suspicion to the particular facts of the case. See Shears v.
Commonwealth, 23 Va. App. 394, 398, 477 S.E.2d 309, 311 (1996);
see also Ornelas, 517 U.S. at 699, 116 S. Ct. at 1659.
Appellant concedes that the officers’ initial approach of his
vehicle was reasonable, but he contends that the officers violated
- 2 - the Fourth Amendment by unlawfully searching his car and seizing
him. We disagree. 1
Here, the officers’ initial approach of appellant’s vehicle
did not implicate the Fourth Amendment, for the officers were
attempting, initially, merely to awaken the unconscious appellant
and to engage him in a consensual encounter on a public street.
See, e.g., Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d
869, 870 (1992). The evidence, viewed in the light most favorable
to the Commonwealth, establishes that while in such a position,
with the aid of a flashlight, Officer Melvin observed an alcohol
bottle on the floor of the vehicle directly beneath appellant’s
leg. Because Melvin saw the object in plain view from a public
place, the discovery did not implicate the Fourth Amendment. See,
e.g., United States v. Dunn, 480 U.S. 294, 304-05, 107 S. Ct.
1134, 1141, 94 L. Ed. 2d 326 (1987); Cook v. Commonwealth, 216 Va.
71, 73, 216 S.E.2d 48, 50 (1975); see also Horton v. California,
496 U.S. 128, 130, 110 S. Ct. 2301, 2304, 110 L. Ed. 2d 112
(1990).
The presence of the alcohol bottle, combined with appellant’s
apparent unconsciousness and the difficulty the officers had in
1 Appellant analyzes the officers’ actions under the community caretaker doctrine. For the reasons set out below, we hold that the actions of Officers Melvin and Flick were objectively reasonable in the context of an investigation of possible criminal activity. See, e.g., Whren v. United States, 517 U.S. 806, 812-13, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996). Therefore, we do not analyze their actions under the community caretaker doctrine.
- 3 - rousing him, provided the officers with an objectively reasonable
suspicion that appellant was operating a motor vehicle under the
influence of alcohol or narcotics in violation of Code § 18.2-266.
See Williams v. City of Petersburg, 216 Va. 297, 300, 217 S.E.2d
893, 896 (1975) (holding that accused who was slumped over
steering wheel of vehicle stopped in parking lot with engine
running was “operating” vehicle for purposes of statute
proscribing driving under the influence). Based on evidence
supporting such a suspicion, the officers were entitled to detain
appellant briefly for questioning in order to confirm or dispel
their suspicions. When appellant responded to their question
about whether he was “okay” with an equivocal, “I guess,” the
officers were entitled to remove appellant from the vehicle to
determine whether he was, in fact, intoxicated.2 See, e.g., Nash
v. Commonwealth, 12 Va. App. 550, 552-53, 404 S.E.2d 743, 744
(1991). Once appellant got out, the officers could see the
homemade pipe in plain view on the floor of the vehicle and
observed that appellant was unsteady on his feet and “out of it.”
“An officer may seize an item in plain view if the officer is
lawfully in a position to see the item and it is ‘immediately
apparent that the item may be evidence of a crime.’” Commonwealth
v. Ramey, 19 Va. App. 300, 303, 450 S.E.2d 775, 777 (1994)
2 Furthermore, the evidence, viewed in the light most favorable to the Commonwealth, establishes that appellant exited the vehicle voluntarily when the officers asked, “Do you mind stepping out of [the] car?”
- 4 - (quoting Carson v. Commonwealth, 12 Va. App. 497, 501, 404 S.E.2d
919, 921 (1991), aff’d, 13 Va. App. 280, 410 S.E.2d 412 (en banc),
aff’d, 244 Va. 293, 421 S.E.2d 415 (1992)). Here, the pipe and
stem were in plain view when appellant exited the car. Although
neither officer testified expressly that he believed the pipe was
evidence of criminal activity, Officer Melvin specifically
identified the device as a homemade pipe and Officer Flick
testified that he handcuffed appellant because of the pipe, making
clear the officers’ belief that the pipe was evidence of a crime.
See id. at 304, 450 S.E.2d at 777 (holding that “[e]ven without
knowing the exact nature of the [burned] residue [on foil atop a
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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Baker Argued at Richmond, Virginia
DWAYNE CHRISTOPHER HOPKINS, S/K/A AURELIOUS HOPKINS, A/K/A DWAYNE HOPKINS MEMORANDUM OPINION * BY v. Record No. 0644-98-2 JUDGE LARRY G. ELDER APRIL 27, 1999 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Thomas N. Nance, Judge
Patricia P. Nagel, Assistant Public Defender (David J. Johnson, Public Defender, on brief), for appellant.
Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Dwayne Christopher Hopkins (appellant) appeals from his bench
trial conviction for possessing cocaine. On appeal, he contends
that the trial court erroneously (1) denied his motion to suppress
based on an illegal seizure and (2) admitted a certificate of
analysis into evidence without proof that it had been filed as
required by Code § 19.2-187. For the reasons that follow, we
disagree and affirm appellant’s conviction.
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. I.
DENIAL OF MOTION TO SUPPRESS
At a hearing on a defendant’s motion to suppress, the
Commonwealth has the burden of proving that a warrantless search
or seizure did not violate the defendant’s Fourth Amendment
rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d
656, 659 (1989); Alexander v. Commonwealth, 19 Va. App. 671, 674,
454 S.E.2d 39, 41 (1995). On appeal, we view the evidence in the
light most favorable to the prevailing party, granting to it all
reasonable inferences fairly deducible therefrom. See
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,
48 (1991). “[W]e are bound by the trial court’s findings of
historical fact unless ‘plainly wrong’ or 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.” McGee v. Commonwealth, 25 Va. App. 193, 198, 487
S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United States,
517 U.S. 690, 699, 116 S. Ct. 1657, 1659, 134 L. Ed. 2d 911
(1996)). However, we review de novo the trial court’s application
of defined legal standards such as probable cause and reasonable
suspicion to the particular facts of the case. See Shears v.
Commonwealth, 23 Va. App. 394, 398, 477 S.E.2d 309, 311 (1996);
see also Ornelas, 517 U.S. at 699, 116 S. Ct. at 1659.
Appellant concedes that the officers’ initial approach of his
vehicle was reasonable, but he contends that the officers violated
- 2 - the Fourth Amendment by unlawfully searching his car and seizing
him. We disagree. 1
Here, the officers’ initial approach of appellant’s vehicle
did not implicate the Fourth Amendment, for the officers were
attempting, initially, merely to awaken the unconscious appellant
and to engage him in a consensual encounter on a public street.
See, e.g., Payne v. Commonwealth, 14 Va. App. 86, 88, 414 S.E.2d
869, 870 (1992). The evidence, viewed in the light most favorable
to the Commonwealth, establishes that while in such a position,
with the aid of a flashlight, Officer Melvin observed an alcohol
bottle on the floor of the vehicle directly beneath appellant’s
leg. Because Melvin saw the object in plain view from a public
place, the discovery did not implicate the Fourth Amendment. See,
e.g., United States v. Dunn, 480 U.S. 294, 304-05, 107 S. Ct.
1134, 1141, 94 L. Ed. 2d 326 (1987); Cook v. Commonwealth, 216 Va.
71, 73, 216 S.E.2d 48, 50 (1975); see also Horton v. California,
496 U.S. 128, 130, 110 S. Ct. 2301, 2304, 110 L. Ed. 2d 112
(1990).
The presence of the alcohol bottle, combined with appellant’s
apparent unconsciousness and the difficulty the officers had in
1 Appellant analyzes the officers’ actions under the community caretaker doctrine. For the reasons set out below, we hold that the actions of Officers Melvin and Flick were objectively reasonable in the context of an investigation of possible criminal activity. See, e.g., Whren v. United States, 517 U.S. 806, 812-13, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996). Therefore, we do not analyze their actions under the community caretaker doctrine.
- 3 - rousing him, provided the officers with an objectively reasonable
suspicion that appellant was operating a motor vehicle under the
influence of alcohol or narcotics in violation of Code § 18.2-266.
See Williams v. City of Petersburg, 216 Va. 297, 300, 217 S.E.2d
893, 896 (1975) (holding that accused who was slumped over
steering wheel of vehicle stopped in parking lot with engine
running was “operating” vehicle for purposes of statute
proscribing driving under the influence). Based on evidence
supporting such a suspicion, the officers were entitled to detain
appellant briefly for questioning in order to confirm or dispel
their suspicions. When appellant responded to their question
about whether he was “okay” with an equivocal, “I guess,” the
officers were entitled to remove appellant from the vehicle to
determine whether he was, in fact, intoxicated.2 See, e.g., Nash
v. Commonwealth, 12 Va. App. 550, 552-53, 404 S.E.2d 743, 744
(1991). Once appellant got out, the officers could see the
homemade pipe in plain view on the floor of the vehicle and
observed that appellant was unsteady on his feet and “out of it.”
“An officer may seize an item in plain view if the officer is
lawfully in a position to see the item and it is ‘immediately
apparent that the item may be evidence of a crime.’” Commonwealth
v. Ramey, 19 Va. App. 300, 303, 450 S.E.2d 775, 777 (1994)
2 Furthermore, the evidence, viewed in the light most favorable to the Commonwealth, establishes that appellant exited the vehicle voluntarily when the officers asked, “Do you mind stepping out of [the] car?”
- 4 - (quoting Carson v. Commonwealth, 12 Va. App. 497, 501, 404 S.E.2d
919, 921 (1991), aff’d, 13 Va. App. 280, 410 S.E.2d 412 (en banc),
aff’d, 244 Va. 293, 421 S.E.2d 415 (1992)). Here, the pipe and
stem were in plain view when appellant exited the car. Although
neither officer testified expressly that he believed the pipe was
evidence of criminal activity, Officer Melvin specifically
identified the device as a homemade pipe and Officer Flick
testified that he handcuffed appellant because of the pipe, making
clear the officers’ belief that the pipe was evidence of a crime.
See id. at 304, 450 S.E.2d at 777 (holding that “[e]ven without
knowing the exact nature of the [burned] residue [on foil atop a
plastic bottle], it may have been immediately apparent to the
officer that the bottle was evidence of a crime” because of the
“highly unlikely event that it would have a legitimate use,”
thereby satisfying the “immediately apparent” requirement).
The presence of the pipe, coupled with appellant’s apparent
unconsciousness when the officers approached, their difficulty in
rousing him, his equivocal response to their inquiries about his
well being, and his condition upon exiting the vehicle, gave the
officers probable cause to arrest him for operating a motor
vehicle while under the influence of intoxicants. 3
3 That the officers may not have conducted any field sobriety tests after appellant exited the vehicle or charged appellant with driving under the influence is irrelevant to determining whether their actions in seizing the pipe and arresting appellant were objectively reasonable.
- 5 - For these reasons, appellant and the pipe were properly
seized, and the trial court did not err in denying appellant’s
motion to suppress.
II.
ADMISSIBILITY OF CERTIFICATE OF ANALYSIS
Appellant also contends that the trial court erred in
admitting the certificate of analysis into evidence under Code
§ 19.2-187. He concedes that the certificate was in the trial
court’s case file but contests the holding of the trial court that
this presence was sufficient to constitute filing within the
meaning of the statute. We disagree.
Code § 19.2-187 provides, in relevant part,
that a certificate of analysis shall be admissible in evidence provided (i) the certificate of analysis is filed with the clerk of the court hearing the case at least seven days prior to the hearing or trial and (ii) a copy of such certificate is mailed or delivered . . . to counsel of record for the accused at least seven days prior to the hearing or trial upon request of such counsel.
Id. (emphasis added). The purpose of the statute “is to ensure
that the certificate to be used in evidence is lodged timely in a
secure and appropriate place, accessible to the accused, and
available to him on request.” Stokes v. Commonwealth, 11 Va. App.
550, 552, 399 S.E.2d 453, 454 (1991).
Ordinarily, a court has discretion in ruling on the
admissibility of evidence. See Langhorne v. Commonwealth, 13 Va.
- 6 - App. 97, 106, 409 S.E.2d 476, 482 (1991). However, “[b]ecause
[Code § 19.2-187] ‘deals with criminal matters, and it undertakes
to make admissible evidence which otherwise’ might be
objectionable, it ‘should be construed strictly against the
Commonwealth and in favor of the accused.’” Winston v.
Commonwealth, 16 Va. App. 901, 904, 434 S.E.2d 4, 5 (1993)
(quoting Gray v. Commonwealth, 220 Va. 943, 945, 265 S.E.2d 705,
706 (1980)). “Prejudice to the defendant from a failure to comply
need not be shown.” Woodward v. Commonwealth, 16 Va. App. 672,
674, 432 S.E.2d 510, 512 (1993).
Despite these rules, we hold that the presence of the
certificate in the proper circuit court case file at least seven
days before trial was sufficient to permit its admissibility under
the statute. As we previously have noted, a certificate of
analysis is “filed with” the clerk of court within the meaning of
Code § 19.2-187 when “received by” the clerk. See Waller v.
Commonwealth, 27 Va. App. 71, 75, 497 S.E.2d 508, 510 (1998)
(citing Rhem v. State, 820 S.W.2d 946, 947 (Tex. Crim. App. 1991)
(“A document is considered filed when delivered to the clerk for
filing.”)). Furthermore, “Code § 19.2-187 does not prescribe the
manner in which a clerk’s office must mark such certificates”
before they may be considered filed. Carter v. Commonwealth, 12
Va. App. 156, 158, 403 S.E.2d 360, 361 (1991). As a result, we
have held that the notation on a “document [that it] had been
‘filed’ and the date and initials of the deputy clerk who filed it
- 7 - were sufficient for the trial court to determine that the
certificate had been filed” in the proper court in compliance with
the statute. See id. Implicit in this ruling is that such a
notation on the face of a certificate is merely circumstantial
evidence of proper filing and that proper filing also may be
established in other ways.
Deputy Clerk Maureen Williams testified that the general
district court warrants were received in the clerk’s office on
February 13, 1998, as indicated by a date stamp, and delivered to
the Commonwealth’s Attorney’s office on February 18, 1998, as
indicated by another date stamp. She identified the docket number
and judge’s initials written on the face of the warrant as being
in her own handwriting and said she wrote that information on the
warrant while the file was in the clerk’s office sometime between
February 13 and February 17. She also explained that the top two
sheets in the file contained a carbon feature such that when she
wrote on the top sheet, the docket number and initials were
imprinted on other sheets in the file, including the certificate
of analysis, which was the third sheet in the file. She
confirmed, based on the carbon copy notations in her handwriting,
that the certificate was in the file no later than February 17.
This evidence established that the certificate of analysis
was in the circuit court case file for the charged offense at
least seven days prior to trial and, therefore, that it was “filed
- 8 - with” the clerk of court in compliance with Code § 19.2-187. 4
Accordingly, the trial court did not err in admitting the
certificate into evidence.
For these reasons, we hold that the trial court did not err
in denying the motion to suppress or admitting the certificate of
analysis into evidence, and we affirm appellant’s conviction.
Affirmed.
4 Here, the certificate was lodged in the appropriate file and, therefore, was “accessible” and “available” to appellant in compliance with Code § 19.2-187. See Harshaw v. Commonwealth, 16 Va. App. 69, 72 & n.2, 427 S.E.2d 733, 735 & n.2 (1993); see also Waller, 27 Va. App. at 76-77, 497 S.E.2d at 510-11. We do not consider whether the certificate--once “received by” and, therefore, “filed with” the clerk--would have been admissible if the clerk had filed it in a manner that rendered it neither accessible nor available to appellant.
- 9 -