Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Carrico, S.J.
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 030942 SENIOR JUSTICE HARRY L. CARRICO
March 5, 2004
JAMES SYLVESTER JONES
FROM THE COURT OF APPEALS OF VIRGINIA
The question for decision in this appeal is whether the
Court of Appeals erred in holding that the doctrine of
inevitable discovery was inapplicable to support the trial
court’s refusal to suppress evidence seized in a search
purportedly lacking in probable cause. Finding the Court of
Appeals’ holding erroneous, we will reverse.
The question stems from indictments charging James
Sylvester Jones (Jones) with attempted possession of cocaine
and possession of a firearm after having been convicted of a
felony. In a bench trial, the court found Jones guilty of
both offenses and sentenced him to serve a total of eight
years in the penitentiary, with five and one-half years
suspended.
In an unpublished opinion, the Court of Appeals affirmed
the weapons conviction but reversed the cocaine conviction.
We granted the Commonwealth an appeal from the reversal of the
cocaine conviction.1
The evidence shows that about 10:30 p.m. on July 23,
2000, Officer Brian O’Donnell of the Charlottesville Police
Department and two fellow officers were on patrol in response
to numerous complaints of drug sales occurring at a residence
located at 321 Sixth Street, S.W., in Charlottesville. The
officers approached the residence through the backyards of
other homes and observed a group of men standing on the
sidewalk in front of the residence.
When the officers came into view, the men ran. Officer
O’Donnell flashed his light on Jones and saw that he had a gun
in his right hand. O’Donnell yelled “[g]un” and ordered Jones
to “[g]et on the ground.” O’Donnell then wrestled Jones to
the ground and heard Jones’ gun hit the pavement “right beside
[a] minivan.” O’Donnell called to one of his fellow officers
to “[g]et the gun, he put it under the van.” O’Donnell placed
Jones under investigative detention, handcuffed him, and began
to search him. While O’Donnell was conducting the search, the
other officer recovered Jones’ gun, a revolver that appeared
to be in operating condition.
1
In a separate petition, Jones appealed the Court of
Appeals affirmance of his weapons conviction, but this Court
refused his petition. (Record No. 031019, Sept. 9, 2003.)
2
In the search, O’Donnell found in Jones’ right rear
pants pocket a “knotted plastic bag containing nine off-white,
rock-like substances.” At that point, O’Donnell arrested
Jones for possession of drugs and transported him to the
police station. There, after Jones had been advised of his
Miranda2 rights, he said that the rocks were cocaine worth
approximately $120.00 and that he mixed the cocaine with
marijuana.3
Upon arrival at the police station but before
interviewing Jones, Officer O’Donnell ran “a criminal history”
on Jones, which, O’Donnell testified, he “would do in the
normal ordinary course of business when [he finds] somebody in
the possession of a firearm.”4 Jones’ criminal history
disclosed he had been found guilty as a juvenile of an offense
that would be a felony if committed by an adult. He was then
charged with the firearms offense.
In considering Jones’ motion to suppress, the trial court
stated that Officer O’Donnell’s detention of Jones was
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reasonable as a valid pat-down stop under Terry but that
O’Donnell did not have probable cause to search Jones. Yet,
2
Miranda v. Arizona, 384 U.S. 436 (1966).
3
Upon analysis, the rocks were determined to be aspirin.
4
Officer O’Donnell testified he did not conduct a record
check with respect to the firearm at the time of arrest
because he “was going to bring [Jones] to the police
department and [he] didn’t have time to check.”
5
Terry v. Ohio, 392 U.S. 1 (1968).
3
the court continued, the discovery of the drugs would have
been inevitable and, on this basis, the court denied Jones’
motion to dismiss.
Jones concedes that his “initial detention was valid
based on the officer observing him running away from the area
with a firearm in hand,” and the Commonwealth does not
question the trial court’s ruling that Officer O’Donnell did
not have probable cause to search Jones. Jones argues that
once the trial court found the search was without probable
cause, it should have excluded the evidence concerning the
drugs and held the doctrine of inevitable discovery
inapplicable. The Commonwealth argues the trial court
properly held that the doctrine was applicable.
Ordinarily, evidence obtained as the result of an
unlawful search is subject to suppression under the
exclusionary rule. Weeks v. United States, 232 U.S. 383
(1914); Hart v. Commonwealth, 221 Va. 283, 287, 269 S.E.2d
806, 809 (1980). However, not all illegally obtained evidence
is subject to suppression. Wong Sun v. United States, 371
U.S. 471, 487-88 (1963).
One of the exceptions to the exclusionary rule is the
doctrine of inevitable discovery. This Court recognized the
exception in Warlick v. Commonwealth, 215 Va. 263, 266, 208
S.E.2d 746, 748 (1974), and Keeter v. Commonwealth, 222 Va.
4
134, 140 n.2, 278 S.E.2d 841, 845 n.2, cert. denied, 454 U.S.
1053 (1981). Later, the Supreme Court of the United States
recognized the exception in Nix v. Williams, 467 U.S. 431
(1984), the Court holding that evidence obtained by unlawful
means is nonetheless admissible “[i]f the prosecution can
establish by a preponderance of the evidence that the
information ultimately or inevitably would have been
discovered by lawful means.” Id. at 444.
In reversing the trial court on the ground that the
doctrine of inevitable discovery was inapplicable in Jones’
case, the Court of Appeals cited its earlier decision in Walls
v. Commonwealth, 2 Va. App. 639, 656, 347 S.E.2d 175, 185
(1986). In turn, Walls cited and embraced United States v.
Cherry, 759 F.2d 1196 (5th Cir. 1985), cert. denied, 479 U.S.
1056 (1987). In Cherry, the Fifth Circuit recognized the
inevitable discovery rule enunciated by the Supreme Court in
Nix but said the Supreme Court had failed to state what must
be shown to establish that the discovery of evidence in a
particular case is inevitable. 759 F.2d at 1204. Filling this
purported void and only citing one of its own decisions,
United States v. Brookins, 614 F.2d 1037, 1042 n.2 (5th Cir.
1980), the Fifth Circuit held that the prosecution must show:
(1) a reasonable probability that the evidence in
question would have been discovered by lawful means but
for the police misconduct, (2) that the leads making the
discovery inevitable were possessed by the police at the
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time of the misconduct, and (3) that the police also
prior to the misconduct were actively pursuing the
alternative line of investigation.
Cherry, 759 F.2d at 1204; see also United States v. Hernandez-
Cano, 808 F.2d 779, 784 (11th Cir.), cert. denied, 482 U.S.
918 (1987).
The Court of Appeals found that the Commonwealth failed
to satisfy items (2) and (3) of the Cherry test, and Jones
cites this same failure on appeal. With respect to item (2),
the Court of Appeals said “[t]here was no specific complaint
concerning Jones, so there were no leads for the police to
follow prior to the police misconduct.” While neither Cherry
nor Walls specifies what is necessary to satisfy item (2),
nothing in the Supreme Court’s opinion in Nix or our opinions
in Warlick and Keeter suggests that, to be sufficient, a lead
must relate to the specific offense with which the suspect is
ultimately charged.
Here, Officer O’Donnell had a lead sufficient to satisfy
item (2). After observing Jones fleeing the scene with a gun
in hand, Officer O’Donnell, “pursuant to normal police
practices,” United States v. Seals, 987 F.2d 1102,1108 (5th
Cir. 1993), would have run “a criminal history” and discovered
Jones’ prior adjudication of guilt for an offense equivalent
to a felony, would have arrested Jones for the weapons
offense, and then would have found the drugs on Jones’ person
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as a result of a search incident to arrest or pursuant to
normal booking procedures.
With respect to item (3) of the Cherry test, the Court of
Appeals held the item was not satisfied because Officer
O’Donnell “was not actively pursuing any alternative line of
investigation.” The Commonwealth urges us to reject item (3)
because the test it creates is “unnecessarily rigid.” Jones
responds that the test is not unnecessarily rigid and that we
should reject the Commonwealth’s proposal.
Again, we find nothing in the Supreme Court’s opinion in
Nix or our opinions in Warlick and Keeter requiring a showing
that the police were actively pursuing an alternative line of
investigation. And the precedential value of Cherry, upon
which the Court of Appeals relied in Walls, is now suspect.
Without mentioning its decision in Cherry or the requirement
of an alternative line of investigation, the Fifth Circuit in
United States v. Seals, supra, applied the inevitable
discovery rule to uphold the challenged seizure of a vehicle
following a search without a warrant. The court stated that
police procedures required an inventory of impounded vehicles,
and the questioned evidence would have been inevitably
discovered “during the normal inventory procedures” of the
police department. Id. at 1108.
7
Other federal circuits have disapproved the requirement
for an alternative line of investigation. United States v.
Silvestri, 787 F.2d 736, 745-46 (1st Cir. 1986); United States
v. Thomas, 955 F.2d 207, 210 (4th Cir. 1992); United States v.
Kennedy, 61 F.3d 494, 499-500 (6th Cir. 1995); United States
v. Ramirez-Sandoval, 872 F.2d 1392, 1399 (9th Cir. 1989).
The Court of Appeals opined in Walls that the requirement
for an alternative line of investigation is necessary to
ensure “that the inevitable discovery exception will be
applied consistently with the overall purpose of the
exclusionary rule, which is to deter police misconduct.”
2 Va. App. at 656, 347 S.E.2d at 185. The court also said
that a “ ‘contrary result would cause the inevitable discovery
exception to swallow the [exclusionary] rule by allowing
evidence otherwise tainted to be admitted merely because the
police could have chosen to act differently and obtain the
evidence by legal means.’ ” Id. (quoting Cherry, 759 F.2d at
1205).
However, as noted in Nix, while the prosecution should
not be put “in a better position than it would have been in if
no illegality had transpired,” 467 U.S. at 443, neither should
the prosecution be “put in a worse position simply because of
some earlier police error or misconduct” when the evidence
would inevitably have been discovered. Id. The requirement
8
for an alternative discovery line of investigation would tip
the scales against the prosecution and put it in a worse
position than it would have been in had no illegality
transpired. And, if the requirement is allowed to stand,
rather than having the exception swallow the rule, the
requirement would swallow the exception. Eliminating the
requirement would level the playing field.
It is clear, at least ”by a preponderance of the
evidence,” Nix, 467 U.S. at 444, that the drugs “ultimately
and inevitably would have been discovered by lawful means.”
Id. The trial court did not err, therefore, in admitting the
evidence related to drugs under the doctrine of inevitable
discovery. Accordingly, we will reverse the judgment of the
Court of Appeals, reinstate the judgment of conviction, and
enter final judgment in favor of the Commonwealth.
Reversed and final judgment.
9