Kurt Daniel Crowell v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: June 4, 2024
• Docket: 0671231
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Huff, O’Brien and Fulton UNPUBLISHED

Argued at Norfolk, Virginia

KURT DANIEL CROWELL MEMORANDUM OPINION* BY v. Record No. 0671-23-1 JUDGE GLEN A. HUFF JUNE 4, 2024 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND COUNTY OF JAMES CITY Holly B. Smith, Judge

Charles E. Haden for appellant.

Rachel A. Glines, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Kurt Daniel Crowell (“appellant”) appeals his convictions for possession of a firearm by a

convicted felon and contributing to the delinquency of a minor. He argues that the Circuit Court for

the City of Williamsburg and County of James City (the “trial court”) erred in denying his motion to

suppress because the search warrant leading to the seized firearm was impermissibly broad and law

enforcement exceeded its scope. Finding no error in the trial court’s ruling on the suppression

motion, this Court affirms appellant’s convictions.

* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND1

In 2021, appellant lived in the same James City County neighborhood as R.L., a 14-year-old

girl.2 Appellant was 46 years old at that time. On several occasions, R.L. ran away from her home

to appellant’s residence. When James City County Police (“the police”) responded to one of those

occasions on July 12, 2021, the police advised appellant that R.L. did not have her mother’s

permission to visit him and that he should call the police if she ever arrived at his home again in the

future.

On August 1, 2021, R.L.’s mother gave R.L. permission to go to a friend’s home in Newport

News. R.L. then used the friend’s phone to contact appellant and arranged for him to pick her up

from the friend’s house. R.L.’s friend later texted appellant to ask if R.L. was still with him; she

received differing replies ranging from “I killed her,” and “She’s in the trunk,” to “I’m fine lmao.”

R.L.’s friend then contacted R.L.’s mother and sent her screenshots of the text messages from

appellant. R.L.’s parents called the police, showed them the messages R.L.’s friend received from

appellant on her cell phone, and provided the phone number appellant had used when sending those

messages.

When the police arrived at appellant’s home, he denied that R.L. was inside and he refused

to answer any other questions or allow the police to search his home. Shortly thereafter, R.L.’s

friend received a text message from appellant’s phone number, asking “Did you call my mom?”

On appeal, this Court recites the facts “in the ‘light most favorable’ to the 1

Commonwealth, the prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). In doing so, this Court “discard[s] the evidence of the accused in conflict with that of the Commonwealth, and regard[s] as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)). 2 This Court refers to the minor involved here by her initials in an attempt to protect her privacy. -2- While waiting outside appellant’s house for a search warrant, the police allowed appellant to leave

the house and go into the shed by himself. Eventually, Investigator Renner arrived with a warrant to

search appellant’s house and detached shed for “[e]lectronic communication device” used to

exchange messages with both R.L. and her friend via the friend’s cell phone.

After being given a copy of the search warrant, appellant told police there were “no texts on

[his] phone.” During their search of appellant’s house, the police found R.L. in a bedroom. She

was fully clothed and appeared to have been recently sleeping on appellant’s bed. A cell phone, sex

toys, a swing, lubricant, and a bottle of wine were in that same room.3 While the police were in the

bedroom with R.L., a phone rang in another part of the home. R.L. stated that she recognized it as

appellant’s phone based on the ringtone, but she did not specify a phone number. Officers found

three more cell phones in the living room along with a computer and a laptop.

While searching for any other communication devices in the shed, officers saw a rifle and

clear Ziploc bag of marijuana in plain view. They immediately stopped the search and obtained a

second search warrant for firearms, narcotics, and related paraphernalia. In connection with that

warrant, the police discovered and seized from the shed “a semiautomatic firearm, a .357 Magnum

revolver, a semiautomatic shotgun, additional marijuana, and a pill bottle containing suspected

narcotics in a plastic bag.”4 The police then arrested appellant and advised him of his Miranda

3 R.L. denied any physical relationship or physical contact with appellant, maintaining that they were just close friends. 4 After subsequent analysis, the Department of Forensic Science determined that the suspected narcotics were methamphetamine, a Schedule II controlled substance. -3- rights.5 After agreeing to answer the police’s questions, appellant admitted to knowing that the

firearms were on his property but denied knowledge of the narcotics.6

Appellant was indicted under Code §§ 18.2-308.2 and -371, respectively, for felony

possession of a firearm after having been previously convicted of a violent felony and

misdemeanor contributing to the delinquency of a minor.7 He filed a motion to suppress all

evidence obtained by the police during their “unlawful” search of his house and shed on August

1, 2021. He specifically argued that the first search warrant—which ultimately led to the

discovery and subsequent seizure of the firearms in the shed—was impermissibly broad and that

the police exceeded its scope by searching the shed after locating both R.L. and several cell

phones in the house. According to appellant, those alleged flaws rendered the search

unconstitutional and the evidence seized during it subject to suppression. The court held a

hearing on the motion at which appellant, Investigator Renner, and Investigator Ernst testified.

To obtain the warrant, Investigator Renner submitted an affidavit that described the “things

or persons to be searched” as R.L. and “[e]lectronic communication device believed to be in use by”

appellant. Both he and Investigator Ernst testified to their intent for the search warrant to include

multiple electronic communication devices. And although Investigator Renner inadvertently wrote

“device” rather than the intended “devices” in the affidavit, he and Investigator Ernst genuinely

believed the search warrant authorized a search for multiple devices.

5 Miranda v. Arizona, 384 U.S. 436 (1966). 6 Appellant alleged that he had received some of the firearms from an unnamed friend. In a subsequent phone call to his brother from the Virginia Peninsula Regional Jail, appellant “admitted to the knowledge of some of the contents of the desk drawer [in the shed], but did not specifically admit to the methamphetamine being there.” 7 He was also indicted with possession of drugs and possession of a firearm while in possession of drugs under Code §§ 18.2-250 and -308.4; these were nolle prossed by the Commonwealth as part of a plea agreement and are not at issue in the appeal. -4- Both investigators further testified that a single phone number is not necessarily exclusive to

a particular device, meaning that even though the text messages to R.L. originated from one phone

number, more than one device could have been using that single number simultaneously.8

Additionally, a user can delete messages on any particular device or remove SIM cards in order to

obfuscate from which device or devices the messages were sent. Moreover, to protect a phone’s

integrity and prevent manipulation of its data, police officers do not manipulate cell phones during a

search and seizure; therefore, the police cannot determine the cell phone number assigned to a

particular device “just by looking at it.” Based on all these factors, Investigators Renner and Ernst

reasonably believed that the search warrant authorized the search for and seizure of any and all

electronic communication devices in appellant’s house and shed that appellant could have used

to communicate with R.L. using the designated number.

At the end of the hearing, the circuit court denied appellant’s motion.9 It first found that

the signed affidavit sufficiently established probable cause for the magistrate to issue the search

warrant. The circuit court then acknowledged that “even if the warrant is not supported by

probable cause, the evidence seized in good faith or reliance on that warrant is not subject to

suppression.” Under that part of its analysis, the circuit court found that the police executed the

search warrant reasonably.10 The court analogized the seizing of multiple phones with a warrant

8 Investigator Ernst acknowledged during the hearing that this was only one of the reasons he directed Investigator Renner “to obtain a search warrant not just for a cellphone but [rather] for electronic devices.” 9 The record reflects that Judge Designate Michael E. McGinty ruled upon appellant’s motion to suppress the evidence. 10 In “deciding if the officers acted in good faith,” the circuit court expressly refused to consider “subjective abuse” and instead looked only to “whether the executing officer acted objectively and reasonabl[y] under the totality” of the circumstances. In doing so, the circuit court noted that “the purpose of the exclusionary rule is to deter police misconduct rather than punish the errors of judges and magistrates.” Accordingly, “[t]he deterrent is absent when . . . an -5- for “device” to the hypothetical seizure of multiple handguns while relying on a search warrant

authorizing the seizure of a “handgun.” Because the officers would need further analysis to

determine which phone was involved in the text message exchange, officers were justified in

seizing all the items that fit the description.

The circuit court also noted that appellant immediately told officers that the phone taken

from his person did not have text messages, so it would have been unreasonable for officers to

ignore his other devices that could contain those messages. The court further stated that the

police “have no idea [whether] the cellphone that the defendant pulled out of his pocket is, in

fact, associated with [a specific] number” and that many devices can simultaneously use the

same phone number. Finding that the search warrant specifically indicated what areas could be

searched, including the shed, the circuit court held that it was not overbroad and that the police

did not exceed the scope of that warrant’s authority. Accordingly, the circuit court concluded

that even “if the magistrate did not issue that search warrant properly, the police clearly were

acting in good faith and the good faith exceptions” applied to the evidence seized thereunder.

Following the circuit court’s ruling on his suppression motion, appellant entered a

conditional guilty plea to the misdemeanor delinquency charge and to an amended charge of

possessing a firearm as a convicted felon.11 The conditional plea permitted appellant to appeal

the circuit court’s ruling on the motion to suppress. By an order entered on April 24, 2023, the

circuit court accepted the plea agreement, convicted appellant of the offenses, and sentenced him

officer acting in an objective good faith obtains a search warrant from the magistrate and acts within the scope of the warrant.” 11 Appellant does not challenge the evidence establishing his prior felony convictions from Michigan: (i) breaking and entering in 1994; (ii) possession of contraband by a prisoner in 1998; and (iii) assault on a law enforcement officer in 2003. -6- collectively to 5 years and 12 months incarceration with 2 years and 8 months suspended. This

appeal followed.

ANALYSIS

Appellant concedes that there was probable cause supporting the search warrant and

authorization to seize R.L. and the cell phone on appellant’s person. He asserts, however, that the

language “[e]lectronic communication device believed to be in use by” appellant was

unconstitutionally overbroad and lacked particularity. He also argues that even if the warrant was

not overbroad, that police exceeded its scope by seizing multiple cell phones rather than one single

“device” and by searching the shed after already locating appellant’s cell phone and R.L.

“The law regarding appellate review of a trial court’s decision on a motion to suppress is

well settled. The appellant bears the burden of establishing that reversible error occurred.”

Williams v. Commonwealth, 71 Va. App. 462, 474 (2020). “An appellant’s claim that evidence

was seized in violation of the Fourth Amendment presents a mixed question of law and fact on

appeal.” Taylor v. Commonwealth, 66 Va. App. 619, 631 (2016). We are “bound by the trial

court’s factual findings unless those findings are plainly wrong or unsupported by the evidence,”

but we review “the trial court’s application of the law de novo.” Malbrough v. Commonwealth,

275 Va. 163, 168-69 (2008). This deferential review of the facts requires us “to give due weight

to inferences drawn from those facts by resident judges and local law enforcement officers.” Id.

at 169 (quoting Reittinger v. Commonwealth, 260 Va. 232, 236 (2000)).

“The Fourth Amendment proscribes general warrants.” Harvey v. Commonwealth, 76

Va. App. 436, 463 (2023); see also Code § 19.2-54 (prohibiting general warrants). “The

requirements of the Virginia statutes controlling the issuance of search warrants have been

interpreted to impose the same search warrant requirements as the fourth amendment.” Morke v.

Commonwealth, 14 Va. App. 496, 500 (1992) (citing Kirby v. Commonwealth, 209 Va. 806, 808

-7- (1969)). When a Virginia magistrate issues a search warrant, any attached affidavit becomes part

of that warrant. Code § 19.2-56. The warrant must describe “‘the place to be searched’ and ‘the

persons or things to be seized.’” Harvey, 76 Va. App. at 463 (quoting United States v. Cobb, 970

F.3d 319, 327 (4th Cir. 2020). “The ‘degree of specificity required’ depends on the

circumstances and type of evidence sought in each case, and ‘a practical margin of flexibility [is]

permitted.’” Id. (alteration in original) (quoting Morke, 14 Va. App. at 500). So long as law

enforcement can differentiate between what items may and may not be seized, the particularity

requirement is satisfied, even if the crime being investigated is not listed on the warrant. Id.

(citing United States v. Blakeney, 949 F.3d 851, 862 (4th Cir. 2020)).

This Court finds that the warrant was sufficiently particular and did not violate the Fourth

Amendment. When read in conjunction with the affidavit, the search warrant authorized seizure

of not every electronic communication device in appellant’s possession, but specifically the type

of electronic communication device capable of sending messages using a specific cell phone

number. The items appellant possessed that were capable of doing so were the five phones, two

laptops, a tablet, and computer seized during the search.

Appellant argues that once a single cell phone was seized from his person, police were

not permitted to search for or seize additional electronic communication devices because the

warrant used the word “device” rather than “devices.” This Court points out that the warrant did

not specify “an” or “one” electronic device. Rather it authorized the police to search appellant’s

property “for the following property, objects and/or persons: . . . [R.L. and] Electronic

communication device believed to be used by” appellant. Every device capable of sending

-8- messages using the specific number provided in the affidavit fit that criteria and was eligible for

seizure as within the scope of the warrant.12

Understandably, the officers did not manipulate the devices on scene to determine which

contained the messages, as doing so could compromise the recovery of evidence. In addition, as

the warrant only authorized seizure of the devices, the officers would have exceeded the scope of

the warrant by searching the data within the devices for the messages.

Nor did law enforcement exceed the scope of the warrant by searching the shed. The

search warrant specifically authorized that search. As already established, police were

authorized to seize each electronic communication device capable of sending messages using a

specific phone number. Appellant’s and R.L.’s statements to police during the search established

that appellant had access to multiple electronic communications, any of which may or may not

have contained messages between appellant and R.L. Thus, police reasonably operated within

the bounds of the warrant by searching each authorized place, including the shed, for electronic

communication devices subject to seizure.

Although appellant argues that the officers used the search warrant as a pretext for a

general search, when the officers saw the firearms in plain view, they ceased the search, held the

scene secure, and only acted further upon receiving an additional search warrant authorizing

them to seize the guns. The record thus supports the trial court’s finding that the officers did not

engage in a pretextual search, and the trial court did not err in denying the motion to suppress.

CONCLUSION

For the foregoing reasons, this Court affirms the circuit court’s judgment.

Affirmed.

12 The trial court reached this conclusion and suppressed SIM cards also seized by law enforcement during the search, finding that storage devices did not fit the warrant criteria. -9-