COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Frank
Argued at Chesapeake, Virginia
EUGENE WILKINS
OPINION BY
v. Record No. 2973-00-1 JUDGE ROBERT P. FRANK
FEBRUARY 12, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
D. Arthur Kelsey, Judge
James O. Broccoletti (Zoby & Broccoletti, on
brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
Eugene Wilkins (appellant) was convicted in a bench trial
of two counts of possession with intent to distribute cocaine,
in violation of Code § 18.2-248. On appeal, appellant contends
the trial court erred in ruling (1) appellant was properly
informed of his Miranda rights; (2) the search warrant was
issued based on probable cause; (3) appellant's vehicle was
properly searched; and (4) the evidence seized in the vehicle
was admissible. For the reasons stated, we affirm the
convictions.
I. BACKGROUND
On February 25, 1999, Detective Frank Chappell of the
Portsmouth Police Department was working with an informant who
previously had provided information resulting in at least one
arrest. The informant reported that for some time he had been
buying quantities of narcotics from appellant and Calvin West.
He explained that appellant delivered the drugs to West's home
on Brookwood Drive in Suffolk, where the drugs then were sold.
The informant described appellant's vehicle as a blue van "with
a wood grain." As the informant and Chappell were driving to
appellant's home, Chappell saw the blue van. They changed
direction and followed the van to West's residence, where
informant made a controlled purchase.
According to the informant, appellant and West sold drugs
at West's home from early morning to early afternoon. Appellant
would deliver the drugs to West in the morning and come back
later in the afternoon to pick up the proceeds. If the porch
light was on at West's residence, then no drugs were for sale;
if the light was off, then drugs could be purchased.
On June 16, 1999, the police began surveillance of West's
and appellant's homes. Early that morning, appellant was
observed driving from his residence on Water View Drive to
West's home.
That same day, a different informant made a controlled buy
at West's residence. He was unable to buy the drugs before
appellant arrived. After appellant arrived, however, the porch
light was switched off, and the informant then purchased
narcotics.
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On June 17, the confidential informant again went to West's
home before appellant arrived and was told no narcotics were
available. The porch light was on, and West told the informant
that he was waiting for appellant to arrive with the cocaine.
On that day, appellant left his home and stopped at 3943 Bridge
Road, his mother's home, where he got out of his car and walked
to the side of the house behind a large tree. "All [the police]
could see was that he went to the side of the house or towards
the side of the garage area," where he remained out of view for
a few minutes. He then returned to his van and drove directly
to West's residence. The confidential informant then made a
purchase from appellant at West's home.
On June 18 at 9:00 a.m., the informant again attempted to
make a purchase while the light was on, but West told him that
appellant would be "en route shortly with some [cocaine]." At
about the same time, appellant was observed driving into a Farm
Fresh parking lot. Appellant met with an individual and then
proceeded to Bridge Road. At Bridge Road, appellant again got
out of the van and went to the side of the house for a short
time. He then drove back to his residence, left again at
9:35 a.m., and drove to West's house.
Search warrants were obtained for both appellant's and
West's residences. Appellant was stopped at approximately
9:45 a.m. "within a block or two from West's house," and the
police searched his van. They found cocaine in sweatpants that
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were lying in the van between the driver and passenger seats.
The police did not find any drugs on appellant.
Both the Brookwood and Waterview houses were searched. No
drugs were found at either address. The arresting officers
brought appellant back to the Waterview house, but appellant
made no statement to Chappell or to any other officer while
Chappell was there. Chappell then left to obtain a search
warrant for the Bridge Road property. Chappell testified,
"[B]ased on what the surveillance was and the observation was,
then I felt there was a reason to go to Bridge Road." Chappell
went to the magistrate and obtained a search warrant for that
address.
In the affidavit presented to the magistrate to obtain the
search warrant for the Bridge Road residence, Chappell stated:
On 6-17-99, CI#2 was sent to 6117 Brookwood
Dr. to purchase cocaine. CI#2 was told by
"C.W." that he didn't have anymore cocaine
and that he was waiting for "Gene" who was
still at home to bring over the cocaine.
Surveillance was again established at 100
Waterview Rd. The home of Wilkins. Wilkins
van was parked in the driveway of said
address. Wilkins was observed coming out of
the house carr[y]ing a white bag, he got into
the van and drove to 6117 Brookwood Dr.
Prior to stopping at 6117 Brookwood Dr.,
Wilkins stopped at 3943 Bridge Rd.[,] exited
the van and was observed going towards the
side door.
CI#2 was given money and sent to 6117
Brookwood Dr. to purchase cocaine. Prior to
leaving the CI#2 was searched and found to
have no controlled substances. CI#2 was
observed going to and inside 6117 Brookwood
Dr. CI#2 purchased cocaine from "Gene."
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CI#2 advised that "Gene" and "C.W." had just
got through cutting up a quantity of cocaine.
* * * * * * *
On 6-18-99, surveillance was established at
100 Waterview Rd. by Det. DeFreitas.
Wilkins was observed coming out of the house
and getting into his van, Virginia tag
HP/56-561. Wilkins was then followed to a
shopping center in the City of Chesapeake,
Va. where he met up with a black male.
After a brief conversation both Wilkins and
the unknown left in different direction[s].
Wilkins was followed where he stopped at
3943 Bridge Rd. Got out of the vehicle and
went up to the side of the house. Wilkins
th[e]n returned a short time later and drove
back directly back to his home at 100
Waterview Rd.
During the time Wilkins was driven back to
his home, CI#2 was at the home of "C.W." as
directed by this [affiant] in attempts to
purchase cocaine. "C.W." told CI#2 that he
didn't have any cocaine and that he was on
the phone with "Gene". "C.W." added that
"Gene" would be at the house shortly with
cocaine. As this phone conversation was
occurring between "Gene" and "C.W." Det.
Karpowski observed "Gene" talking on a
cellular phone while riding down the street.
At approximately 9:45 A.M., Eugene Wilkins
was arrested with a quantity of cocaine on
his person. When asked about where he had
been earlier that morning Wilkins stated
that he had only went to the Food Lion and
got some bananas and went back home.
Parked in the driveway of 3943 Bridge is a
1978 red & white Chevy El Camaro with
Virginia tag PTQ-920. The registered owner
is Eugene Wilkins. It was further learned
that Wilkins 89 year old mother lives at the
address.
Chappell, on cross-examination, conceded the police never
saw appellant enter the El Camino or the Bridge Road house on
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either visit. The affidavit did not mention that appellant was
briefly hidden from view by a "big tree" at the side of the house
while at Bridge Road.
The search warrant was signed at 1:30 p.m. Chappell then
called Detective M.K. Wright, who was already at the Bridge Road
house. When Chappell told him that he had obtained the warrant,
Wright entered the El Camino, which was parked behind the big
tree on the side of the house, and recovered a brown paper bag
containing cocaine.
While Chappell went to get the search warrant, Detective
L.L. DeFreitas remained with appellant at the Waterview Road
house. DeFreitas testified he Mirandized appellant from memory,
and appellant said he understood those rights. The detective
then asked whether appellant wished to speak with him without an
attorney present, and appellant replied that he would. Around
noon, appellant said he wanted to speak to a lawyer, and
DeFreitas stopped his conversation with appellant. Appellant's
wife, who was also present, "constantly" urged appellant to speak
with the police and cooperate.
Around 2:30 p.m. appellant asked DeFreitas if he could talk
with him in another room. At that point, appellant said he
wished to cooperate and tell them where the drugs could be found.
DeFreitas responded that he could not talk to appellant because
he had asked for a lawyer. Appellant said he had changed his
mind and wanted to talk. Appellant then said he would take the
officer to the place where the drugs were located.
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They drove to the Bridge Road address. Appellant led the
detective to the El Camino 1 and indicated the drugs were in the
backseat. They then learned the drugs had already been recovered
by other officers pursuant to the search warrant. The trial
judge found they "arrived only moments after Detective Wright
recovered the evidence."
Later that day, after DeFreitas described the surveillance
to him, appellant said, "Okay, so you know that I come here, pick
it up, and then go over to CW's. I only sold a little. I use as
well. It's for pain. What's the difference, I'll be gone soon
anyway." When he asked how much he sold, appellant said he
needed to talk to an attorney, and the conversation ceased.
II. MIRANDA RIGHTS
Appellant claims the evidence was insufficient for the trial
court to find DeFreitas informed appellant of all his rights
under Miranda v. Arizona, 384 U.S. 436 (1966). In examining this
claim, the evidence is considered in the light most favorable to
the Commonwealth, and the trial court's determination that
appellant was informed of these rights will not be overturned
unless plainly wrong or without evidence to support that finding.
See Commonwealth v. Benjamin, 28 Va. App. 548, 552-53, 507 S.E.2d
113, 115 (1998).
In the case of Dickerson v. United States, the Supreme
Court explained the rule established by Miranda:
Accordingly, we laid down "concrete
constitutional guidelines for law
enforcement agencies and courts to follow."
1
The El Camino was registered in appellant's name.
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[Miranda, 384 U.S.] at 442. Those
guidelines established that the
admissibility in evidence of any statement
given during custodial interrogation of a
suspect would depend on whether the police
provided the suspect with four warnings.
These warnings (which have come to be known
colloquially as "Miranda rights") are: a
suspect "has the right to remain silent,
that anything he says can be used against
him in a court of law, that he has the right
to the presence of an attorney, and that if
he cannot afford an attorney one will be
appointed for him prior to any questioning
if he so desires." Id., at 479.
530 U.S. 428, 435 (2000) (emphasis added). Previously, the
Supreme Court has called them "the now-familiar warnings."
Rhode Island v. Innis, 446 U.S. 291, 310 (1980).
The trial court did not err by inferring from the
detective's use of the phrase, "Miranda warnings," during his
testimony that he informed appellant of these four rights,
although the court was not required to make this inference. 2 The
evidence was sufficient to support the trial court's finding.
First, other courts have held that similar testimony was
sufficient to prove the Miranda rights were read to a defendant.
In Phelps v. Duckworth, for example:
At trial, the arresting officer testified
that he "read [Mr. Phelps] his rights"
following the arrest. The state argues that
this testimony does not conclusively show
that the petitioner was read his Miranda
2
Clearly, the Commonwealth risks a finding by the trial
court that the complete warnings were not given where an officer
testifies only that he informed the suspect of his "Miranda
rights."
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warnings as opposed to some other warnings.
The state does not speculate as to what
other rights Mr. Phelps reasonably might
have been read immediately following his
arrest.
The district court found that the record
revealed that Mr. Phelps was read his
Miranda warnings following arrest. We will
not set aside a district court's factual
finding unless it is clearly erroneous. In
reviewing the lower court finding, we may
infer reasonable conclusions drawn from the
record as a whole.
We fully agree with the district court that
Mr. Phelps was given his Miranda warnings by
the arresting officer. To hold otherwise,
in light of the arresting officer's own
testimony, would contradict reason and
common sense. The present case is plainly
distinguishable from Fletcher [v. Weir, 455
U.S. 603, 605 (1982)], where there was no
evidence in the record that the defendant
had been read his rights, Miranda or
otherwise. There is nothing in the present
record which suggests that the rights read
to Mr. Phelps by the arresting officer were
not Miranda rights. 3
757 F.2d 811, 816, rev'd on altern. gds. en banc, 772 F.2d 1410
(7th Cir. 1985). See also State v. Esser, 480 N.W.2d 541,
543-44 (Wis. Ct. App. 1992) (noting "[t]he phrase 'Miranda
rights' conjures up the well-known litany of rights which many
citizens could recite verbatim," and affirming a trial court's
finding that these rights were read to a suspect, based on
3
The prosecution was arguing Mr. Phelps's silence after his
arrest could be used to impeach his trial testimony. Phelps,
757 F.2d at 815. Such impeachment evidence is allowed only if a
defendant was not read his Miranda rights after his arrest. Id.
See generally Doyle v. Ohio, 426 U.S. 610 (1976).
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evidence that the officer read his "constitutional rights" to
the defendant "from a police department Miranda card" that was
not introduced into evidence).
Here, the record supports the trial court's finding.
DeFreitas testified that, after he arrested appellant, "I
Mirandized him" before beginning their initial conversation.
The detective admitted he did not read the rights from a
preprinted card, but instead recited them "from [his] memory." 4
He also asked appellant "if he understood his rights," and
appellant responded that he did. DeFreitas then "[a]sked him if
he wished to talk to me without an attorney present."
The record contains no hint that anything other than the
traditional Miranda rights were explained to appellant. While
other trial courts might not reach the same conclusion,
appellate courts must defer to the judge's factual finding where
the evidence supports that finding. See Benjamin, 28 Va. App. at
552-53, 507 S.E.2d at 115. The evidence here supports the trial
court's factual finding that appellant was informed of his
Miranda rights.
III. SUPPRESSION OF THE DRUGS
4
Defense counsel did not challenge DeFreitas's memory at
trial nor does he challenge it on appeal.
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Appellant also claims the evidence found in the El Camino
should have been suppressed because the search warrant 5 for the
Bridge Road house where the car was parked lacked probable cause
and because the car was not listed on the warrant as a place to
search. Even assuming both these arguments are correct, the
evidence should not have been suppressed. The drugs were
admissible under the inevitable discovery doctrine even if the
warrant and resulting search were improper.
When evidence is collected as the result of an
unconstitutional process, normally it should be excluded under
the exclusionary rule or as "fruit of the poisonous tree."
However, very limited exceptions to this rule do exist. One
such exception is the inevitable discovery rule, which is an
off-shoot of the independent source doctrine. See Murray v.
United States, 487 U.S. 533, 536-39 (1988); Nix v. Williams, 467
U.S. 431, 446-48 (1984); Timbers v. Commonwealth, 28 Va. App.
187, 199-201, 503 S.E.2d 233, 238-39 (1998).
The inevitable discovery exception "has long been
recognized in Virginia." Walls v. Commonwealth, 2 Va. App. 639,
655, 347 S.E.2d 175, 184 (1986). In order to apply this
exception, this Court, in Walls, required a showing that:
"(1) a reasonable probability [exists] that
the evidence in question would have been
discovered by lawful means but for the
police misconduct, (2) that the leads making
5
The Commonwealth does not argue that appellant lacked
standing to object to a search warrant for his mother's home.
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the discovery inevitable were possessed by
the police at the time of the misconduct,
and (3) that the police also prior to the
misconduct were actively pursuing the
alternative line of investigation."
Id. at 656, 347 S.E.2d at 185 (quoting United States v. Cherry,
759 F.2d 1196, 1204 (5th Cir. 1985)).
The trial court here concluded the Commonwealth's evidence
met this test, finding that DeFreitas arrived "only moments"
after Chappell's recovery of the drugs, that the police had
appellant in custody prior to any of the alleged misbehavior by
Chappell, and that DeFreitas actively pursued the alternative
source of information. As this conclusion involves a mixed
question of fact and law, we defer to the trial court's factual
findings unless plainly wrong or without evidence to support
them, but review the ultimate question of law, the application of
the inevitable discovery doctrine, de novo. See Trent v.
Commonwealth, 35 Va. App. 248, 250, 544 S.E.2d 379, 380 (2001).
See also Williams, 467 U.S. at 444 n.5 (inevitable discovery
should be proven by a preponderance of the evidence, applying the
usual burdens for a motion to suppress).
First, more than a reasonable probability exists that,
without the warrant, the police would have recovered the drugs in
the El Camino. Obtaining the search warrant had nothing to do
with appellant's discussion with DeFreitas. Appellant's decision
to voluntarily disclose the location of the drugs provided the
police with a completely independent basis for searching the El
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Camino. 6 If the officers had never attempted to obtain a search
warrant for the Bridge Road address, they still would have
arrested appellant. This arrest and events at his home, not the
search warrant, prompted appellant to disclose to police that
the cocaine was in the backseat of the vehicle.
As appellant actually took DeFreitas to the exact location
where the police earlier found the drugs, speculation about an
abstract future discovery of the drugs is unnecessary. The
evidence here clearly shows discovery of the contraband was more
than reasonably probable; it was inevitable, even without the
allegedly improper warrant and search.
The second prong of the test was met also. The police
"possessed the lead" at the time they applied to the magistrate
for the warrant: they had appellant, the "lead," in custody and
had Mirandized him. While appellant initially invoked his
Miranda rights and did not talk with DeFreitas, the police still
had appellant under arrest. Appellant does not contest the
legality of this arrest.
Finally, the officers were actively pursuing this
alternative source of information. DeFreitas initially asked if
appellant wanted to talk to the police. Although appellant
appeared uncooperative at that point, the officers did not take
6
Seizure of the drugs based on appellant's statements was
constitutionally permissible without a warrant based on both
consent to search, Hughes v. Commonwealth, 31 Va. App. 447, 454,
524 S.E.2d 155, 159 (2000) (en banc), and the automobile
exception, McCary v. Commonwealth, 228 Va. 219, 227-28, 321
S.E.2d 637, 641-42 (1984). Appellant does not argue this point.
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him to jail, but instead held him in his home. Clearly, the
investigation had not concluded. The police still wanted to hear
any information appellant was willing to disclose. They were
doing all they could do constitutionally, once appellant invoked
his Miranda rights, to pursue this lead. 7
In this case, DeFreitas's lead was completely separate from
the alleged police "misconduct" related to the warrant, as
appellant's cooperation was obtained independently of the request
for the search warrant. 8 See Cherry, 759 F.2d at 1205 n.11;
Walls, 2 Va. App. at 643, 347 S.E.2d at 177. Chappell, who
requested the warrant, did not know about appellant's statements
when he submitted his affidavit to the magistrate nor when he
began the search at Bridge Road. DeFreitas did not know what
appellant would say or where the drugs would be found. Appellant
did not know about the alleged inadequacies of the warrant and
the search. The warrant and search procedure in no way tainted
appellant's disclosure of the location of the drugs because the
two investigations were independent.
Appellant argues the alternative lines of investigation also
must flow from completely independent sources. However, he cites
no authority to support this interpretation of the rule, and we
7
Appellant was informed of his Miranda rights. See II,
supra.
8
The record does not indicate whether appellant knew
Chappell was attempting to get a search warrant for the Bridge
Road residence. The allegedly improper actions taken by the
police in relation to the warrant and search occurred after
Chappell left appellant's home. Nothing suggests that appellant
knew about the allegedly improper action or that his decision to
talk to DeFreitas was in any way influenced by those actions.
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do not believe this prong suggests such an extreme view. The
requirement is only that the alternative line of investigation is
not tainted by the allegedly unconstitutional source of
information, allowing a court to find that "the police would have
obtained that evidence if no misconduct had taken place."
Williams, 467 U.S. at 444. See also Cherry, 759 F.2d at 1205.
See, e.g., United States v. Lamas, 930 F.2d 1099, 1103-04 (5th
Cir. 1991) (holding that evidence obtained based on Lamas's
invalid consent to search his house was admissible under the
inevitable discovery rule where an officer had probable cause and
left to obtain a search warrant prior to the improper consent).
This analysis is especially applicable here, where if
Chappell had never requested the search warrant and never began
his search, DeFreitas still would have recovered the cocaine in
the backseat of the El Camino, based on appellant's cooperation.
In fact, if the process for obtaining the warrant had been
slower, the drugs would have been recovered based on appellant's
cooperation rather than the execution of the warrant. Excluding
this evidence would exact "the enormous societal cost of
excluding truth," while providing no deterrence of police
misconduct because an officer "will rarely, if ever, be in a
position to calculate whether [this] evidence sought would
inevitably be discovered." Id. at 445.
As the evidence found in the El Camino is admissible under
the inevitable discovery doctrine, we do not need to examine
appellant's remaining arguments. Any impropriety related to the
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affidavit and the execution of the search at Bridge Road did not
taint the independent investigation by DeFreitas.
Because appellant was informed of his Miranda rights, and
because the inevitable discovery doctrine allowed introduction of
the drugs obtained pursuant to the search warrant, we affirm the
convictions.
Affirmed.
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