Jonathan P. Bignelli v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: September 11, 2001
• Docket: 0690003
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Clements and Agee Argued at Salem, Virginia

JONATHAN P. BIGNELLI MEMORANDUM OPINION * BY v. Record No. 0690-00-3 JUDGE JEAN HARRISON CLEMENTS SEPTEMBER 11, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY Porter R. Graves, Jr., Judge

Frank A. Mika for appellant.

H. Elizabeth Shaffer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Appellant Jonathan P. Bignelli was convicted in a bench trial

of manufacturing marijuana not for his own use in violation of

Code § 18.2-248.1(c), possessing with intent to distribute

methylenedioxymethamphetamine, a Schedule I controlled substance,

in violation of Code § 18.2-248(C), and possessing with intent to

distribute more than one half ounce but less than five pounds of

marijuana in violation of Code § 18.2-248.1(a)(2). On appeal, he

contends the trial court erred in denying his motion to suppress

the drugs and other evidence seized by the police in a

nonconsensual, warrantless entry and search of his home. Finding

no error, we affirm the judgment of the trial court.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts and incidents of the

proceedings as necessary to the parties' understanding of the

disposition of this appeal.

When a motion to suppress is reviewed on appeal, we examine

the records of both the suppression hearing and the trial to

determine whether the evidence was lawfully seized. DePriest v.

Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 542 (1987).

"In reviewing a trial court's denial of a motion to suppress,

'[t]he burden is upon [the defendant] to show that th[e] ruling,

when the evidence is considered most favorably to the

Commonwealth, constituted reversible error.'" McGee v.

Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en

banc) (alterations in original) (quoting Fore v. Commonwealth, 220

Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)). "'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." Id. (quoting Ornelas v. United States, 517 U.S.

690, 691 (1996)). However, "we 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." Id. at 198, 487 S.E.2d at 261 (citing

Ornelas, 517 U.S. at 699).

- 2 - Bignelli first argues that, based on the information they

obtained from the traffic stop, the officers had probable cause

sufficient to procure a search warrant before proceeding to his

house. Their failure to do so, despite having ample time to

approach a magistrate with the information they had obtained, was,

Bignelli contends, without justification.

"Probable cause exists when the facts and circumstances

within the arresting officer's knowledge and of which [the

officer] has reasonably trustworthy information are sufficient in

themselves to warrant a [person] of reasonable caution in the

belief that an offense has been or is being committed." Schaum v.

Commonwealth, 215 Va. 498, 500, 211 S.E.2d 73, 75 (1975).

"Probable cause is assessed by considering the totality of the

circumstances pertaining to the facts known to the officer at the

time." United States v. Sokolow, 490 U.S. 1, 9-10 (1989).

Here the evidence proved that on May 11, 1999, at

approximately 1:00 a.m., Trooper Rob Greer made a traffic stop on

Route 659 in Rockingham County of a vehicle travelling 48 miles

per hour in a 35 mile-per-hour zone. Before the stop, the vehicle

swerved several times across the yellow line. Four people were in

the car. The young woman who was driving smelled of alcohol and

was very lethargic. Further investigation by the police led to

the discovery of a metal box containing marijuana and a glass pipe

with marijuana residue. Two of the passengers were arrested for

possession of marijuana.

- 3 - One of the passengers told Trooper Kevin Richards, who

together with Sergeant Baylor and Deputy Morris came to assist

Greer, that he got the marijuana in the metal box at a party in

Grottoes. He gave Trooper Greer the address of 93 Gray Street.

Another passenger told Greer that there were two kegs of beer at

the party and that every person at the party was "probably not"

twenty-one years old. Both passengers were under twenty-one years

of age and admitted they had drunk alcohol at the party. The

officers did not previously know the persons stopped that night.

After the arrests, Trooper Greer called an assistant

Commonwealth's attorney for advice. The assistant Commonwealth's

attorney told Greer that the information Greer had received might

be unreliable or stale. Based on that advice, the four officers

and the assistant Commonwealth's attorney went to the Gray Street

address they were given to further investigate the reliability of

the information of illegal narcotic and alcohol use. They arrived

at 2:46 a.m.

Assuming, without deciding, that the information obtained by

Greer during the traffic stop constituted probable cause

sufficient for the issuance of a search warrant, we hold that it

was reasonable nevertheless for the officers to go to 93 Gray

Street, Bignelli's home, to verify by personal observation the

reliability and adequacy of the information they had received.

See Fore, 220 Va. at 1011, 265 S.E.2d at 732 (holding that, even

though information the officer had obtained through hearsay was

- 4 - arguably sufficient to obtain a search warrant, officer acted

reasonably and responsibly in verifying the adequacy of that

information by personal investigation). Furthermore, the

officers' failure to obtain a search warrant at the earliest

practicable moment did not, without more, negate the legality of

the subsequent search. See Verez v. Commonwealth, 230 Va. 405,

410, 337 S.E.2d 749, 752 (1985); Patty v. Commonwealth, 218 Va.

150, 155-57, 235 S.E.2d 437, 440-41 (1977).

Bignelli next argues that, upon arriving at his house, the

officers improperly went around to the side yard of the house,

where there was no sidewalk and which was almost completely

blocked from the street by a shed and bushes, rather than walking

up the sidewalk to the front door. The officers, Bignelli

contends, intentionally trespassed on the curtilage of his

property in order to obtain probable cause and, in so doing,

created the exigent circumstances that precipitated their entry

into his home without a warrant. Thus, Bignelli concludes, the

Commonwealth should be precluded from relying on the exigent

circumstances the officers created by their illegal trespass.

The Fourth Amendment protects against unreasonable searches

and seizures. "A warrantless entry into a dwelling is

presumptively unreasonable." Servis v. Commonwealth, 6 Va. App.

507, 514, 371 S.E.2d 156, 159 (1988). The Fourth Amendment

protections that apply to the home also apply to its "curtilage."

Jefferson v. Commonwealth, 27 Va. App. 1, 15, 497 S.E.2d 474, 481

- 5 - (1998) (citing Oliver v. United States, 466 U.S. 170, 180 (1984)).

"Curtilage" includes one's yard. Wellford v. Commonwealth, 227

Va. 297, 302, 315 S.E.2d 235, 238 (1984). "The protection

afforded the curtilage is essentially a protection of families and

personal privacy in an area intimately linked to the home, both

physically and psychologically, where privacy expectations are

most heightened." California v. Ciraolo, 476 U.S. 207, 213

(1986).

However, this does not end our Fourth Amendment inquiry.

That the area is within the curtilage does not itself bar all police observation. The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer's observations from a public vantage point where he has a right to be and which renders the activities clearly visible. "What a person knowingly exposes to the public, even in his own home . . ., is not a subject of Fourth Amendment protection."

Id. (citations omitted) (quoting Katz v. United States, 389 U.S.

347, 351 (1967)).

Here, the evidence established that, when Trooper Greer

arrived at 93 Gray Street, he could see the front and side doors

of Bignelli's house from Gray Street. No fences or other

obstructions blocked his view of the yard. He saw five to ten

people in the front yard on the north side of the house walking

around with "bottles of alcoholic beverages" and "clear plastic

- 6 - cups of a liquid beverage." Having confirmed the information from

the traffic stop that a party was indeed in progress at this

address and that alcohol was in fact being served, Greer walked

into the yard seeking to locate someone who lived at the house or

the person in charge of the party. He asked one of the people in

the yard if he knew who lived there, but the person said he did

not. The front porch was "totally dark," but Greer could see

light coming from the side door. He, therefore, walked through

the yard up to the side door.

We find, as did the trial court, that Bignelli had no

expectation of privacy in his yard, which was knowingly exposed to

the public. It was reasonable, therefore, for Trooper Greer to

enter the yard to further investigate his suspicions of illegal

activity based on the information he had received from the traffic

stop and his observations from the public street of the activity

in Bignelli's yard. Unable to locate the property's residents or

the party's host in the yard, it was also reasonable for Greer to

go to the residence's apparent point of ingress and egress-the

side door where the light was on-to locate the residents or host.

See Alvarez v. Montgomery County, 147 F.3d 354, 358-59 (4th Cir.

1998) (holding that entry by police officers investigating a

complaint of an underage drinking party into private backyard to

look for homeowner was reasonable because officers had a

legitimate reason unrelated to a search of the premises to enter

the yard and a sign indicated the party was in backyard). We

- 7 - conclude, therefore, that the officers did not illegally trespass

on the curtilage of Bignelli's property.

"Exigent circumstances . . . may justify as reasonable a

warrantless entry into a dwelling [and] a search of the interior

. . . ." Verez, 230 Va. at 410, 337 S.E.2d at 752. "Exigent

circumstances justifying a warrantless entry and search exist only

where the police have probable cause to obtain a search warrant

but, due to the nature of the situation, are precluded from doing

so." Servis, 6 Va. App. at 514-15, 371 S.E.2d at 159. Relevant

exigent circumstances that might justify a warrantless entry

include "the officers' reasonable belief that contraband is about

to be removed or destroyed," "information that the possessors of

the contraband are aware that the police may be on their trail,"

"whether there is, at the time of entry, a clear showing of

probable cause," and "whether the officers have strong reason to

believe the suspects are actually present in the premises."

Verez, 230 Va. at 410-11, 337 S.E.2d at 753.

We have held that in determining whether exigent 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. "The officers are not required to possess either the gift of prophecy or the infallible wisdom that comes only with hindsight. They must be judged by their reaction to circumstances as they reasonably appeared to trained law enforcement officers to exist when the decision to enter was made."

- 8 - Id. at 411, 337 S.E.2d at 753 (quoting Keeter & Bray v.

Commonwealth, 222 Va. 134, 141, 278 S.E.2d 841, 846 (1981)).

Applying these principles, we conclude that the evidence

before us amply supports the trial court's determination that the

Commonwealth met its burden of proving exigent circumstances

sufficient to justify the police's warrantless entry and search of

Bignelli's house. When Trooper Greer reached the lighted side

door, it was open. Looking inside, Greer could see ten or twelve

people in the kitchen, sitting at a table on which there were

half-full bottles of beer, plastic cups, and cigarettes. Greer

also saw a metal keg, which he recognized as a beer keg, in plain

view in the same room. He asked the group to find the person who

lived there or was in control of the house. Less than a minute

later, Bignelli ran downstairs and met Greer at the door. After

determining that Bignelli rented the house, Greer explained to him

that he had received information that there was illegal

consumption of alcohol and possible drug use taking place at the

party. When Greer asked Bignelli if he knew whether everyone in

attendance was at least twenty-one years old, Bignelli said he did

not know but he hoped so. During the conversation with Bignelli,

Greer "detected a strong odor of what [he] believed to be

marijuana smoke" coming out of the house. "It was," according to

Greer, "a very thick cloud of smoke." When Greer asked Bignelli

about the smoke, Bignelli denied it was marijuana. During the

- 9 - conversation Bignelli was "extremely nervous" and stood in the

doorway with his arms outstretched across the open door.

The trooper then asked Bignelli to come out into the yard.

When Bignelli did so, Greer asked him about the marijuana odor

again, and Bignelli again denied the odor was marijuana. Trooper

Greer asked permission to search the residence. When Bignelli

refused, Greer told Bignelli he could apply for a search warrant.

Bignelli ran back to the door and once again stood in the doorway

with his arms outstretched across the door. Greer, accompanied by

Trooper Richards, went back to the door. When Richards reached

the porch outside the door, he also smelled a very strong odor of

marijuana. Again, Greer asked for consent to search the residence

and stated he could apply for a search warrant. Bignelli again

refused permission.

At that point, Greer saw a woman seated at the table in the

kitchen jump up and run out of the room. Greer heard footsteps on

the stairs, heard a door slam, and then heard a toilet flush

repeatedly. Richards also saw people running upstairs and through

the house and heard the toilet flush. Fearing that evidence of

illegal drugs was being destroyed and deciding that prompt action

on their part was necessary to prevent the further destruction of

evidence, the officers entered the house. Pushing Bignelli and a

woman out of the doorway, they ran upstairs to the bathroom, where

Greer found a woman flushing green plant material down the toilet.

- 10 - Given the information they received during the traffic stop

and what they observed, smelled, and heard at Bignelli's house, we

find that the officers reasonably perceived exigent circumstances

warranting their immediate entry into Bignelli's house to search

for evidence before it could be destroyed. Accordingly, their

immediate entry and search was, we conclude, reasonable and

justified.

Bignelli testified in his own defense and called six

witnesses who were present at the party that night. They denied

much of the officers' testimony, including that marijuana could be

smelled in the kitchen or outside the house, that people were

running through the house and up the stairs, that the toilet was

being flushed, that the officers could even hear the toilet being

flushed from their location just outside the side door, and that

someone was in the bathroom when Greer went in.

The trier of fact, however, is not required to accept a

party's evidence in its entirety, but is free to believe or

disbelieve in part or in whole the testimony of any witness.

Rollston v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823,

830 (1991). Thus, the trial court was not required to accept

Bignelli's version of what occurred. "In its role of judging

witness credibility, the fact finder is entitled to disbelieve the

self-serving testimony of the accused and to conclude that the

accused is lying to conceal his guilt." Marable v. Commonwealth,

27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998).

- 11 - Finally, Bignelli contends that, even though he expressly

gave his consent to the officers to search the house after they

had entered the residence and gone upstairs, his consent was not

valid because it was coerced by the officers' show of force in

entering and searching his home. We disagree.

A person may voluntarily consent to a warrantless search of

his person, property, or premises. Bumper v. North Carolina, 391

U.S. 543, 548 (1968). "The test of a valid consent search is

whether it was 'freely and voluntarily given.'" Commonwealth v.

Rice, 28 Va. App. 374, 378, 504 S.E.2d 877, 879 (1998) (quoting

Bumper, 391 U.S. at 548). "When a defendant challenges the

validity of a consent to search, the burden of proof is on the

Commonwealth to prove that it was freely and voluntarily given."

Reynolds v. Commonwealth, 9 Va. App. 430, 439, 388 S.E.2d 659, 665

(1990). Whether a particular consent to search was in fact

voluntary or was the product of coercion is a question of fact "to

be determined from the totality of the circumstances."

Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).

Here, Trooper Greer twice asked Bignelli for permission to

search before entering the home. Bignelli, telling Greer that he

"could not enter on a smell," twice denied Greer permission to

search. Only after the officers had entered the house and were

upstairs looking in the bathroom and bedroom, did Bignelli run up

the stairs and tell Greer that "none of this was necessary, that

he was willing to cooperate with" the officers. Greer verified

- 12 - Bignelli's offer and asked Bignelli for consent to search.

Bignelli consented, saying, "You're going to find it anyway. I

might as well just speed up the process so I can go to bed and get

some sleep."

Having refused consent to search his home twice before

consenting, Bignelli clearly knew he had a right to refuse

consent. There is no evidence in the record that any of the

officers displayed a weapon or used language or a tone of voice

that suggested compliance with their request to search was

mandatory. Bignelli was not restrained by the police. The

evidence sufficiently supports the trial court's finding that the

Commonwealth met its burden of proving that Bignelli's consent was

freely and voluntarily given. Moreover, having found that the

warrantless entry of Bignelli's house was lawfully made,

Bignelli's claim that his consent was coerced by the officers'

warrantless entry must fail. See Reynolds, 9 Va. App. at 440, 388

S.E.2d at 665.

In summary, we find that the warrantless entry was lawful and

that the consent to search was properly obtained. The trial court

did not, therefore, err in refusing to suppress the drugs and

other evidence seized.

Accordingly, we affirm the trial court's decision to overrule

Bignelli's motion to suppress the drugs and other evidence seized

and affirm Bignelli's convictions.

Affirmed.

- 13 -