Jermaine Harris v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: July 10, 2001
• Docket: 0687002
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Humphreys and Senior Judge Coleman Argued at Richmond, Virginia

JERMAINE HARRIS MEMORANDUM OPINION * BY v. Record No. 0687-00-2 JUDGE SAM W. COLEMAN III JULY 10, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND James B. Wilkinson, Judge

Lawrence Martin Cohn (AA, Affiliated Attorneys, Inc., on briefs), for appellant.

John H. McLees, Jr., Senior Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Jermaine Harris, appellant, appeals his convictions after a

bench trial of possession of cocaine with the intent to distribute

in violation of Code § 18.2-248, the simultaneous possession of a

firearm in violation of Code § 18.2-308.4, and possession of

marijuana in violation of Code § 18.2-250.1. He argues that the

trial court erred in denying his motion to suppress the evidence,

claiming that the search of his apartment was illegal because the

police (a) did not obtain a search warrant before entering the

curtilage of his residence, and (b) exceeded the scope of a lawful

protective sweep of the apartment. Appellant claims the evidence

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. collected by the police both before and after they obtained a

search warrant, and the statements he made to the police, should

have been suppressed. Appellant also contends the trial court

erred by sentencing him to the five year mandatory minimum under

Code § 18.2-308.4(B). He asserts the mandatory sentencing

provision of Code § 18.2-308.4(B) is invalid because (a) it is

unconstitutionally ambiguous, (b) it violates the separation of

powers doctrine, and (c) it violates his right to due process of

the law. For the reasons that follow, we disagree and affirm his

convictions.

BACKGROUND

Viewed in the light most favorable to the Commonwealth,

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

48 (1991), the evidence proved that on October 21, 1999, Richmond

Police Officers Robert Barlow and Michael McCray received

information from an informant that the residents of a certain

apartment were selling drugs. The officers traveled to the

specified apartment located adjacent to a private street. They

knocked on the door, which was opened from within. The officers

saw appellant and his brother, Darrell Harris, standing in the

doorway and noticed a strong odor of marijuana coming from inside

the apartment. After the officers identified themselves and asked

permission to enter, Darrell Harris invited them inside. Barlow

informed appellant and Darrell Harris that they were investigating

a complaint of drug activity and asked the brothers if there were

- 2 - any illegal drugs or weapons in the apartment. Both men denied

having drugs or weapons but after the officers mentioned the odor

of marijuana, appellant admitted that he had just smoked a "blunt"

(a hollowed-out cigar filled with marijuana).

The officers then asked permission to search the apartment.

Darrell Harris gave his consent, but appellant demanded that the

officers obtain a search warrant. Barlow and McCray moved the

brothers away from the front door into the living room and told

them that they would be held under investigative detention to

preserve the scene while Barlow went to obtain a warrant. As the

officers and the brothers entered the living room, Darrell Harris

began backing up towards a windowsill on which an object was lying

covered by a towel. McCray testified that he was concerned that

the object beneath the towel was a weapon. Therefore, McCray

pulled the towel from the windowsill. From beneath the towel, a

clear box fell to the floor. Without touching the box, the

officers could see inside and saw nine individually packaged small

white rocks that appeared to be cocaine.

The officers then handcuffed the brothers and advised them of

their Miranda rights. Barlow remained with the detainees as

McCray conducted a security check of the rest of the apartment.

On the staircase leading to the second floor, McCray found a small

plastic bag of the type often used to package drugs. Upstairs in

plain view he found a rifle, two shotguns and the marijuana blunt.

- 3 - Barlow obtained a search warrant. In his affidavit for the

warrant, Barlow stated that among the material facts constituting

probable cause were the presence of the marijuana blunt, the

weapons, and packages of cocaine.

ANALYSIS

Suppression Motion

On appeal from a motion to suppress evidence, we review the

evidence in the light most favorable to the prevailing party.

See McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259,

261 (1997) (en banc). When reviewing a Fourth Amendment

suppression ruling, "we are bound by the trial court's findings

of historical fact unless 'plainly wrong' or without evidence to

support them." Id. at 198, 487 S.E.2d at 261 (citing Ornelas v.

United States, 517 U.S. 690, 699 (1996)). However, we consider

de novo whether those facts implicate the Fourth Amendment and,

if so, whether the officers unlawfully infringed upon an area

protected by the Fourth Amendment. See id.

Appellant contends Barlow and McCray, by entering the

curtilage of his apartment without first obtaining a warrant,

violated his Fourth Amendment right to be free from unreasonable

searches and seizures. Indeed, "[s]ubject to several well

established exceptions, the Fourth Amendment prohibits

warrantless searches of any place or thing in which a person has

a justifiable expectation of privacy." Shaver v. Commonwealth,

30 Va. App. 789, 795, 520 S.E.2d 393, 396 (1999). However, in

- 4 - this case, the officers did not conduct a "search" when they

approached the apartment by its principal entrance and knocked on

the door. "Under the Fourth Amendment, a search is an invasion

into a space or area where a person has a reasonable expectation

of privacy in the 'person,' or the person's 'houses,' 'papers,'

or 'effects.'" Hughes v. Commonwealth, 31 Va. App. 447, 455,

524 S.E.2d 155, 159 (2000). To determine whether a citizen

"enjoys a reasonable expectation of privacy . . . we consider

whether he [or she] has exhibited an expectation of privacy in

the object and whether that expectation is one that 'society is

prepared to recognize as reasonable.'" Anderson v.

Commonwealth, 25 Va. App. 565, 576, 490 S.E.2d 274, 279 (1997)

(quoting Katz v. United States, 389 U.S. 347, 361 (1967)

(Harlan, J., concurring)), aff'd, 256 Va. 580, 507 S.E.2d 339

(1998). "[W]here private lands are exposed to observation by

members of the public who may legitimately come upon the

property, a citizen does not reasonably have an expectation of

privacy in areas that the passing public can observe." Shaver,

30 Va. App. at 795, 520 S.E.2d at 396.

Here, appellant had no reasonable expectation of privacy in

the front entrance to his apartment, an area "observable by

members of the public who might approach [his] residence, pass

by, or lawfully be upon [the] property." Id. Therefore, the

Fourth Amendment protections did not prohibit the officers from

- 5 - approaching the apartment and knocking on the front door for the

purpose of investigating the allegation of drug activity.

Appellant also contends the officers illegally searched his

apartment after they entered the residence. The evidence proved

that the officers' initial contact with appellant and his

brother was consensual. Darrell Harris invited the officers

into the apartment.

[A] consensual encounter between the police and a citizen becomes a seizure for Fourth Amendment purposes "only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." In order for a seizure to occur, the police must restrain a citizen's freedom of movement by the use of physical force or show of authority.

Ford v. City of Newport News, 23 Va. App. 137, 141-42, 474

S.E.2d 848, 850 (1996) (citations omitted). See United States

v. Mendenhall, 446 U.S. 544, 554-55 (1980) (holding that Fourth

Amendment rights are not implicated by consensual encounters

between citizens and the police).

Once inside the apartment, the officers asked the brothers

whether they had drugs or weapons in the apartment. When they

denied having any contraband, Barlow noted that he could smell

marijuana. Appellant then admitted that he had smoked

marijuana. The officers asked permission to search the

premises. Darrell Harris agreed to the search but appellant

objected. The officers decided that McCray would detain the

brothers while Barlow obtained a search warrant. Based on the

- 6 - totality of the circumstances, at the time the officers detained

appellant they had the reasonable suspicion necessary to conduct

an investigative detention.

An officer may detain a person in a "Terry stop" if the officer possesses articulable facts supporting a reasonable suspicion that a person has committed a criminal offense, is engaging in one, or is about to engage in one. In determining whether an officer had a particularized and objective basis for suspecting a person of criminal activity, a court must consider the totality of the circumstances. The test for reasonable suspicion under Terry is less stringent than the test for probable cause. Reasonable suspicion can be established with information different in quantity or content than that required to establish probable cause. Reasonable suspicion differs from probable cause "also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause."

Clarke v. Commonwealth, 32 Va. App. 286, 294-95, 527 S.E.2d 484,

488-89 (2000).

The officers moved the brothers from the foyer to the

living room. At that time, Darrell Harris began backing towards

the windowsill. "Although the authority to conduct a pat-down

search does not follow automatically from the authority to

effect an investigative stop, '[w]here the officer can "point to

particular facts from which he reasonably inferred that the

individual was armed and dangerous" [he is] justified in

searching for weapons.'" Harris v. Commonwealth, 33 Va. App.

325, 334, 533 S.E.2d 18, 22 (2000) (citation omitted).

- 7 - "[F]risking for weapons based upon the exigency of protecting an

officer's safety is not limited to a pat-down of the suspect but

may extend to nearby vehicles . . . or rooms or premises to

which the suspect may retreat to secure a weapon." Washington

v. Commonwealth, 29 Va. App. 5, 14, 509 S.E.2d 512, 516 (1999)

(en banc). McCray testified that he was concerned that the

object beneath the towel was a weapon. "An officer is entitled

to view the circumstances confronting him in light of his

training and experience, and he may consider any suspicious

conduct of the suspected person." James v. Commonwealth, 22 Va.

App. 740, 745, 473 S.E.2d 90, 92 (1996) (citation omitted).

"The relationship between the distribution of controlled

substances . . . and the possession and use of dangerous weapons

is now well recognized." Logan v. Commonwealth, 19 Va. App.

437, 445, 452 S.E.2d 364, 369 (1994). McCray reasonably

inferred that the brother may have been going to obtain a

firearm or weapon. McCray's lawful search of the immediate area

surrounding the suspects revealed several packets of cocaine.

Barlow testified that the officers decided to determine

whether other people were in the apartment in order to protect

McCray's safety and preserve any evidence while Barlow had gone

to obtain a search warrant. McCray cursorily searched the

upstairs rooms of the apartment and located drug paraphernalia

and weapons. Once officers have entered a residence and

observed contraband inside, "in order to determine if anyone is

- 8 - present who might destroy evidence or pose a threat to police

safety, police officers may conduct a limited security check in

those areas where individuals could hide." Crosby v.

Commonwealth, 6 Va. App. 193, 202, 367 S.E.2d 730, 735 (1988).

See also Commonwealth v. Thornton, 24 Va. App. 478, 486, 483

S.E.2d 487, 491 (1997).

Accordingly, because the officers lawfully searched the

apartment, the search warrant Barlow obtained was valid and not

based on evidence impermissibly acquired. Thus, the trial court

did not err by refusing to suppress the evidence.

Mandatory Sentence

Appellant challenges the imposition of the mandatory five

year sentence under Code § 18.2-308.4. He argues that because

it conflicts with other sentencing statutes, it is ambiguous;

that it violates the Virginia Constitution's separation of

powers doctrine; and that it violates constitutional guarantees

of due process by denying him an individualized sentencing

proceeding. "When testing the constitutional validity of

statutes, courts shall presume the statute to be valid.

Consequently, the burden to show the constitutional defect is on

the challenger." Gray v. Commonwealth, 30 Va. App. 725, 731-32,

519 S.E.2d 825, 828 (1999) (citations omitted).

In pertinent part, Code § 18.2-308.4 states:

Violation of this section shall constitute a separate and distinct felony and any person convicted thereof shall be guilty of a Class

- 9 - 6 felony, shall not be eligible for probation, and shall be sentenced to a minimum, mandatory term of imprisonment of five years.

Appellant contends this mandatory minimum sentence conflicts

with the Class 6 felony sentencing range found in the Code.

Code § 18.2-10(f) provides that the punishment for a Class 6

felony is

a term of imprisonment of not less than one year nor more than five years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than twelve months and a fine of not more than $2,500, either or both.

"[W]hen one statute speaks to a subject in a general way and

another deals with a part of the same subject in a more specific

manner, the two should be harmonized, if possible, and where

they conflict, the latter prevails." Virginia Nat'l Bank v.

Harris, 220 Va. 336, 340, 257 S.E.2d 867, 870 (1979). Code

§ 18.2-308.4 imposes a mandatory minimum sentence that is within

the range provided by Code § 18.2-10. By describing the offense

as a Class 6 felony, Code § 18.2-308.4 limits the sentence that

the trial judge may impose. Additionally, the Class 6

designation also serves the purpose of precluding the imposition

of a fine because the mandatory jail term exceeds twelve months.

In In re: Commonwealth of Virginia, 229 Va. 159, 326 S.E.2d 695

(1985), the Supreme Court approved mandatory minimum sentences,

finding that "by prescribing a mandatory sentence, the General

Assembly has divested trial judges of all discretion respecting

- 10 - punishment." Id. at 163, 326 S.E.2d at 697. The legislative

creation of this sentence does not violate the separation of

powers doctrine.

The concept of individualized sentencing in criminal cases

generally is not constitutionally required. Shifflett v.

Commonwealth, 26 Va. App. 254, 260, 494 S.E.2d 163, 166 (1997).

The trial court's imposition of the mandatory minimum sentence

in this non-capital case did not violate appellant's

constitutional rights. The trial court did not err in

sentencing appellant pursuant to Code § 18.2-308.4.

Therefore, we affirm appellant's convictions.

Affirmed.

- 11 -