Trevor Tyron Adderly v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: August 27, 2002
• Docket: 0785011
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Annunziata and Senior Judge Overton Argued by teleconference

TREVOR TYRON ADDERLY MEMORANDUM OPINION * BY v. Record No. 0785-01-1 JUDGE ROSEMARIE ANNUNZIATA AUGUST 27, 2002 COMMONEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK John C. Morrison, Jr., Judge

William P. Robinson, Jr. (Robinson, Neeley & Anderson, on brief), for appellant.

Marla Graff Decker, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Trevor Tyron Adderly was indicted by a grand jury alleging

that he possessed more than one-half ounce, but less than five

pounds of marijuana with intent to distribute, in violation of

Code § 18.2-248.1. Adderly moved to suppress evidence found

during the search of his truck. The trial court denied the

motion, and Adderly pled guilty to the charge, conditioned upon

his ability to appeal that denial. The trial court convicted

Adderly and sentenced him to ten years in prison, with eight

years suspended. Adderly now appeals the trial court's denial

of his motion to suppress. For the reasons that follow, we

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. affirm the trial court's decision to deny his motion to suppress

and affirm his conviction.

Background

On August 12, 1998, Norfolk Police Investigator Todd

Sterling and two other plain-clothed officers stopped a vehicle

on Military Highway for a traffic violation. Sterling was

working with the Vice and Narcotics Division at the time.

The driver of the vehicle, who later proved to be Jermaine

Adderly, produced several different "identification-type

documents," in response to a request for his license. The

documents listed 1426 Picadilly Street, Apartment A, as the

holder's address. The officers concluded they "couldn't really

charge [the driver] until [they] found his true identity," and

went to the Picadilly Street address to verify the driver's name

and address.

When they arrived, Sterling noticed a 1996 "Chevy Tahoe"

parked at the apartment. He ran a DMV check on the license

plates, but they "didn't come back to anything." At Sterling's

request, a uniformed officer went to the door of the apartment.

Trevor Tyron Adderly, the defendant, answered the door, and

Sterling and the other uniformed officer walked up to the

doorway. Sterling detected the odor of marijuana coming from

the apartment. He asked Adderly if the truck in the front yard

belonged to him, and Adderly responded that it did. When

Sterling advised Adderly that the license plates did not "come

- 2 - back to his vehicle," Adderly responded that he did not know why

that would be the case.

Sterling continued his conversation with Adderly, advising

him that Jermaine Adderly had been arrested and some documents

in his possession linked him to the 1426 Picadilly address.

When Sterling explained that he was attempting to verify

Jermaine Adderly's identity so a summons could be issued,

Adderly acknowledged that Jermaine lived at the address.

Sterling asked Adderly if there were any guns or drugs in

the apartment. Adderly responded that he had a gun and a

permit, and directed Sterling to the bedroom to show it to him.

After examining the gun and permit, Sterling saw an ashtray that

contained marijuana. When asked, Adderly stated the drugs

belonged to him, explaining he had just finished smoking a

joint. After advising Adderly of his Miranda rights, Sterling

asked him if he could search the apartment for drugs. To

alleviate Adderly's expressed concern about the absence of a

search warrant, Sterling told him that he would not charge him

with any drug offense based on drugs he might find in the

apartment and that he would simply take the contraband and

"voucher it." Accepting the terms proffered, Adderly agreed to

the search of the apartment. Sterling found evidence of drug

offenses in the apartment, but assured Adderly he would not

bring any charges based on that evidence.

- 3 - He then asked if there were any drugs or guns in the "Chevy

Tahoe." Adderly responded in the negative. Sterling asked if

he could search the truck, and Adderly responded in the

affirmative and gave Sterling the keys. In the truck, Sterling

found 70 plastic baggies of marijuana. Adderly denied the drugs

belonged to him, and denied knowledge that they were in his

truck. Adderly was arrested based on the marijuana found in the

truck.

Analysis

Adderly contends the trial court erred in denying his

motion to suppress the evidence found in his truck on the ground

that his consent to the search of the truck was tainted by the

events preceding his consent. For the reasons that follow, we

disagree and affirm the decision of the trial court.

Subject to several well established exceptions, the Fourth

Amendment prohibits warrantless searches of any place or thing

in which a person has a reasonable expectation of privacy.

Mincey v. Arizona, 437 U.S. 385, 390 (1978). However, searches

made by the police pursuant to a valid consent do not implicate

the Fourth Amendment. Schneckloth v. Bustamonte, 412 U.S. 218,

222 (1973); Iglesias v. Commonwealth, 7 Va. App. 93, 99, 372

S.E.2d 170, 173 (1988) (en banc).

When relying upon consent as the justification for a

search, the Commonwealth must prove, given the totality of the

circumstances, that the consent was freely and voluntarily

- 4 - given. Bumper v. North Carolina, 391 U.S. 543, 548 (1968);

Hairston v. Commonwealth, 216 Va. 387, 388, 219 S.E.2d 668, 669

(1975); Commonwealth v. Rice, 28 Va. App. 374, 378, 504 S.E.2d

877, 879 (1998). "The voluntariness of the consent is a

question of fact to be determined by the trial court and must be

accepted on appeal unless clearly erroneous." Limonja v.

Commonwealth, 8 Va. App. 532, 540, 383 S.E.2d 476, 481 (1989)

(en banc). As such, the trial court's resolution of those

issues will not be reversed on appeal unless we find that the

decision was clearly erroneous. McGee v. Commonwealth, 25

Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (noting

that appellate courts are "bound by the trial court's findings

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

support them and [this Court] give[s] due weight to the

inferences drawn from those facts by resident judges and local

law enforcement officers"); Satchell v. Commonwealth 20 Va. App.

641, 648, 640 S.E.2d 253, 256 (1995) (en banc) (great deference

is given the "peculiar fact finding capability of the trial

court" since it is "not limited to the stark, written record,"

but "has before it the living witnesses and can observe their

demeanors and inflections"). Therefore, Adderly must

demonstrate on appeal "that the [trial court's] denial of [his]

motion to suppress constitute[d] reversible error. Motley v.

Commonwealth, 17 Va. App. 439, 440-41, 437 S.E.2d 232, 233

(1993).

- 5 - Adderly contends that the police acted unlawfully before

obtaining his consent and deceived him as to their purpose. See

Commonwealth v. Ealy, 12 Va. App. 744, 757, 407 S.E.2d 681, 689

(1991) (upholding suppression of evidence obtained pursuant to

voluntary consent because it was tainted by previous unlawful

searches (citation omitted)); Limonja, 8 Va. App. at 540, 383

S.E.2d at 481 (noting that deception may invalidate a consent to

search). Specifically, Adderly claims that his express consent

was not freely and voluntarily given because: (1) the police did

not have a "legitimate basis" for appearing at his door; (2)

Sterling's questions about the possible presence of guns or

drugs in the apartment were improper; and (3) Sterling "bribed"

Adderly with the promise that any contraband found in the search

of the residence would not be used as a basis for criminal

charges. The evidence admitted at both the trial and

suppression hearings, viewed in the light most favorable to the

Commonwealth, Greene v. Commonwealth 17 Va. App. 606, 607, 440

S.E.2d 138, 139 (1994), does not support these contentions. 1

1 Although there is evidence to the contrary in the record, we need not consider it. See McCary v. Commonwealth, 36 Va. App. 27, 35, 548 S.E.2d 239, 243 (2001) (noting that it is the trial court's role on a motion to suppress to evaluate and resolve conflicts in the evidence). The trial court, in concluding that Adderly voluntarily consented to the search, credited the police officer's account of the events leading up to and including Adderly's consent to the search of his truck and resolved the conflicts between Sterling's testimony and that of Adderly in favor of the former.

- 6 - First, we find that Sterling did not act unlawfully before

obtaining Adderly's consent to search his truck. The police may

approach a citizen's door and knock to seek his attention. See

Shaver v. Commonwealth, 30 Va. App. 789, 796, 520 S.E.2d 393,

396-97 (1999). Moreover, the record shows that the police went

to his apartment to verify the identity and address of an

individual whom they had stopped for a traffic infraction

because the suspect had produced one piece of identification

that listed Adderly's apartment as his address. The officers

needed the correct name and address to issue summonses and went

to the Adderlys' residence for that express purpose. Indeed,

during the visit, Sterling verified with Adderly that the

traffic offender lived at that address. Thus, the initial

encounter between Adderly and the police was consensual.

Second, Sterling's questions were proper and did not turn

the consensual encounter into a seizure. See Florida v.

Bostick, 501 U.S. 429, 434 (1991). Because Sterling smelled the

odor of marijuana coming from the defendant's apartment, he

asked Adderly if there were guns or drugs in the apartment.

Adderly voluntarily responded that he had a gun in his bedroom

for which he had a permit. He then asked Sterling if he wanted

to see it. Sterling accepted the offer and followed Adderly to

a bedroom in the rear of the apartment. After Sterling found

the evidence of drugs in Adderly's apartment, he asked Adderly

whether there were any drugs or guns inside the truck. Adderly

- 7 - responded that there was not. Adderly thus consensually engaged

in the encounter.

Third, Sterling's promise that he would not charge the

defendant with any drug offense based on drugs he found in the

apartment, pursuant to Adderly's consent, did not deceive

Adderly. Sterling honored his promise and did not charge

Adderly with any crimes based on the $8,615, two kilos of

marijuana, 86 plastic baggies of marijuana, two additional

weapons, and the digital scale he found in Adderly's apartment.

Adderly was charged based on evidence found during the search of

his truck, about which Sterling had made no promises.

In short, Adderly's contentions are without merit.

Moreover, the totality of the circumstances demonstrates that

Adderly's consent to the search of his truck was voluntary. See

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

665 (1990) (noting that whether an accused's consent to search

was voluntary requires a review of the totality of the

circumstances). As noted above, the conversation between the

officer and Adderly prior to his consent to search his truck was

not coercive. In addition, Sterling was open and honest with

Adderly throughout the encounter. He told Adderly he did not

have a search warrant. He said he could apply for one, but he

was not sure that he could get one. He told Adderly he would

not charge him with any drug crimes based on evidence found

during the search of his apartment, and he remained true to his

- 8 - word. He never lied to or deceived Adderly. Moreover, when the

officer asked him whether he could search the truck, he said,

"[g]o ahead," gave the officer the keys, and added that there

was "nothing in there." Given these circumstances, the trial

court correctly found that the officer's actions were

objectively reasonable and that the defendant freely and

voluntarily consented to the search of the truck. See Ohio v.

Robinette, 519 U.S. 33, 39 (1996) (holding that the

voluntariness of consent is determined by an objective test).

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

Adderly's motion to suppress the evidence found in his truck.

Affirmed.

- 9 -