Hargraves v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Elder and Annunziata
Argued at Richmond, Virginia

KEVIN N. HARGRAVES
OPINION BY
v. Record No. 2543-00-2 JUDGE ROSEMARIE ANNUNZIATA
JANUARY 15, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
E. Everett Bagnell, Judge Designate

David M. Gammino for appellant.

Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

Kevin N. Hargraves appeals his conviction for possession of

cocaine with intent to distribute in violation of Code

§ 18.2-248. He contends the trial court's denial of his motion

to suppress certain evidence violated his rights under the

Fourth Amendment and that the evidence was insufficient to

support a finding of guilt beyond a reasonable doubt. For the

reasons that follow, we reverse and remand.

I.

Background

On appeal, we review the evidence in the light most

favorable to the Commonwealth, the party prevailing below. Reid

v. Commonwealth, 256 Va. 561, 564, 506 S.E.2d 787, 789 (1999)

(citations omitted). At the time of the incident, Kevin
Hargraves lived in a residence owned by his girlfriend, Nikia

Glasper. Glasper had a contract with ADT Security to protect

her home. The contract required ADT to contact the police and

Glasper if the alarm sounded. Glasper testified that nothing in

the contract allowed the police to enter her home, inventory the

home, or analyze the crime scene.

On September 15, 1999, at 10:01 p.m., Hopewell patrolman

James E. Jackson received a call from dispatch regarding a

report from ADT Security. Jackson was told that the burglary

alarm at the residence had been activated.

Officers Jackson and Norsworthy responded to the location

of the home within six minutes and found the alarm still

sounding. They found that the rear door had been broken open.

After they secured the exterior of the premises, they called for

a K-9 unit. The officers put the dog inside the home. His

immediate return signified that no one was inside and that the

residence was secure.

Jackson and Norsworthy thereupon entered the home. They

observed that the back doorjamb was splintered and that the rear

bedroom had been ransacked. Although they found Glasper's name

on something they found in the home, they did not contact her.

The police had not received permission to investigate the

interior of the home from the security company, Glasper, or

Hargraves. Nevertheless, Jackson embarked on a "crime scene

investigation," in which he methodically dusted for
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fingerprints, took photographs and "look[ed] for any evidence."

Although the master bedroom was the only area that appeared to

be disturbed, he "dusted for latent fingerprints throughout the

entire residence . . . ." In the bedroom, he saw that some

drawers were open, clothes were on the floor, and the mattress

had been pulled to one side. He opened a drawer located on the

right side of the bed's headboard and dusted it for

fingerprints. He also opened a drawer on the left side for the

same purpose.

Inside the left drawer he observed a clear plastic bag with

a white substance, two sacks of money, an electronic scale and

some plastic baggies. The items later proved to be 56.9 grams

of cocaine, $1,110 in cash, a Virginia identification card

belonging to Hargraves, an electronic scale, and plastic

baggies.

When Glasper arrived home from work at 11:30 p.m., no one

was there. She found the alarm still sounding, the kitchen

light on, the back door closed but unlocked and her bedroom

ransacked. She called ADT and was informed of the break-in.

Glasper testified that Hargraves occasionally stayed away

from the home and that she was not sure whether he had stayed at

the residence on the night prior to the break-in. She also

noted that, facing the headboard, she slept on the right and

Hargraves on the left and that they each kept their personal

items in the drawers or compartments on their respective sides.
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Glasper never opened the drawer on Hargraves' side of the bed

and denied any knowledge of the items found in the headboard.

On June 21, 2000, the trial judge denied Hargraves' motion

to suppress the evidence seized during the search of his home.

The trial court overruled Hargraves' motion to strike and found

him guilty of possession of cocaine with intent to distribute.

On October 11, 2000, the court sentenced Hargraves to ten years

imprisonment with six years of that sentence suspended. It is

from this conviction that Hargraves appeals.

II.

Analysis

A. Motion to Suppress

In reviewing the trial court's denial of Hargraves' motion

to suppress, we view the evidence and all reasonable inferences

arising therefrom in the light most favorable to the

Commonwealth, the party prevailing below. Dickerson v.

Commonwealth, 35 Va. App. 172, 543 S.E.2d 623 (2001). Hargraves

has the burden on appeal to demonstrate that the denial of the

motion to suppress constituted reversible error. Fore v.

Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980);

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

233 (1993).

The Fourth Amendment to the United States Constitution

protects "[t]he right of the people to be secure in their

person, houses, papers, and effects, against unreasonable
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searches and seizures." U.S. Const. amend. IV. "A warrantless

search by the police is invalid unless it falls within one of

the narrow and well-delineated exceptions to the warrant

requirement." Flippo v. West Virginia, 528 U.S. 11, 13 (1999)

(citing Katz v. United States, 389 U.S. 347, 357 (1967)).

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

implicate the Fourth Amendment. See 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).

At trial, the Commonwealth bears the burden of proving that

consent was in fact given. Limonja v. Commonwealth, 8 Va. App.

532, 540, 383 S.E.2d 476, 481 (1989). The Commonwealth "must

prove, given the totality of the circumstances, that the consent

was freely and voluntarily given." McNair v. Commonwealth, 31

Va. App. 76, 82, 521 S.E.2d 303, 306 (1999). Where consent is

based on implication, the Commonwealth bears a heavier burden of

proof. Jean-Laurent v. Commonwealth, 34 Va. App. 74, 78-79, 538

S.E.2d 316, 318 (2000); Johnson v. Commonwealth, 26 Va. App.

674, 687, 496 S.E.2d 143, 150 (1998) (citing Walls v.

Commonwealth, 2 Va. App. 639, 645, 347 S.E.2d 175, 178 (1986)).

The presence of consent is, however, a factual question. See

Bynum v. Commonwealth, 23 Va. App. 412, 418, 477 S.E.2d 750, 753

(1996). Therefore, 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
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those facts by resident judges and local law enforcement

officers." McGee v. Commonwealth, 25 Va. App. 193, 198, 487

S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United

States, 517 U.S. 690, 699-703 (1996).

It is undisputed that Glasper did not expressly consent to

a search of her home under the terms of her contract with ADT.

Rather, the contract expressly required ADT to contact the

police and Glasper if the alarm sounded. The trial court found

that, by virtue of her contract with the security company,

Glasper provided "implied consent" for the police to enter her

home and "investigate anything going on in the house." Because

the record does not support this finding, we reverse.

The Commonwealth argues that the police reasonably believed

the contract provided implied consent for an investigation into

the circumstances surrounding the activation. To support this

proposition, the Commonwealth cites several cases based on a

third party's apparent authority to consent. See Illinois v.

Rodriguez, 497 U.S. 177, 179 (1990) (finding belief that third

party possessed common authority of premises to give consent

reasonable); Jones v. Commonwealth, 16 Va. App. 725, 432 S.E.2d

517 (1993) (finding officer could reasonably have believed that

motel room was no longer occupied by guest and that maid thus

had authority to consent to search); Caldwell v. Commonwealth,

15 Va. App. 540, 543, 425 S.E.2d 534, 536 (1993) (holding that

officers acted reasonably in believing that defendant's sister
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had general control over house and authority to consent to entry

and search). We find, however, that the facts and circumstances

of this case do not sustain a finding of apparent authority.

Consent by a third party with apparent authority over the

premises justifies a warrantless search only where "the facts

surrounding the situation would have led a reasonable officer to

conclude that the person providing consent had the requisite

authority." Jones, 16 Va. App. at 727-28, 432 S.E.2d at 519

(citing Rodriguez, 497 U.S. at 186-88). As in all Fourth

Amendment cases, the touchstone is "reasonableness under the

facts and circumstances of the case." Weathers v. Commonwealth,

32 Va. App. 652, 658, 529 S.E.2d 847, 850 (2000); see also Deer

v. Commonwealth, 17 Va. App. 730, 734, 441 S.E.2d 33, 36 (1994)

(holding that inquiry must focus on objective reasonableness

rather than on officer's subjective intent). In assessing

whether apparent authority existed in Rodriguez, the United

States Supreme Court stated:

[a]s with other factual determinations
bearing on search and seizure,
determinations of consent to enter must "be
judged against an objective standard: would
the facts available to the officer at the
moment . . . warrant a man of reasonable
caution in the belief" that the consenting
party had authority over the premises? If
not, then warrantless entry without further
inquiry is unlawful unless authority
actually exists.

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497 U.S. at 188-89 (quoting Terry v. Ohio, 392 U.S. 1, 21-22

(1968)). For example, in Jones, we found the officer could

reasonably conclude that a motel room was vacant and that the

maid had authority to consent to a search of the room based on

the facts available to the officer. 16 Va. App. at 729, 432

S.E.2d at 519-20. We noted that the officer saw no cars in the

parking lot near the room, the doors to the room and surrounding

rooms were open as if being cleaned and he could see no personal

items while standing in the doorway. Id. Similarly, in

Caldwell, we found it reasonable for an officer to believe a

woman had authority to consent to a search because she possessed

a key to her mother's house and assured the police that she had

control over the property and authority to permit their entry

into the home. 15 Va. App. at 541-43, 425 S.E.2d at 535-36.

In contrast, the facts and circumstances available to

Officers Jackson and Norsworthy do not support the conclusion

that the security contract provided consent. The officers were

notified by dispatch that a burglary alarm had sounded at

Hargraves' residence. When they arrived at the home, its

condition suggested that a break-in had occurred. Officer

Norsworthy spoke with the security company. The security

company did not tell the officers to process the crime scene,

nor did the company give consent to a search. More importantly,

the security company did not provide the police with any

information about the company's contract with Glasper. The
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officers received no other information before conducting the

search. Thus, we conclude that the facts known to the officers

would not warrant a person of reasonable caution in the belief

that the contract provided the company with "authority over the

premises." Rodriguez, 497 U.S. at 188. In short, the

Commonwealth contends that a reasonable officer could infer a

homeowner's consent to a full investigatory search from the

existence of a security contract and the sounding of the home's

alarm. We find this proposition directly contrary to our Fourth

Amendment jurisprudence.

It is a "'basic principle of Fourth Amendment law' that

searches . . . inside a home without a warrant are presumptively

unreasonable." Payton v. New York, 445 U.S. 573, 586 (1980).

The Fourth Amendment protects the
individual's privacy in a variety of
settings. In none is the zone of privacy
more clearly defined than when bounded by
the unambiguous physical dimensions of an
individual's home--a zone that finds its
roots in clear and specific constitutional
terms: "The right of the people to be
secure in their . . . houses . . . shall not
be violated."

Id. at 589 (citation omitted). "The Fourth Amendment embodies

[the] centuries-old principle of respect for the privacy of the

home," Wilson v. Layne, 526 U.S. 603, 610 (1999), such that its

entry "is the chief evil against which the wording of the Fourth

Amendment is directed," United States v. United States District

Court for E.D. Michigan, 407 U.S. 297, 313 (1972).

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 "[A] warrantless search must be 'strictly circumscribed by

the exigencies which justify its limitation,'" Mincey v.

Arizona, 437 U.S. 385, 393 (1970) (quoting Terry, 392 U.S. at

25-26), and "[t]he scope of a [consent] search is generally

defined by its expressed object." Florida v. Jimeno, 500 U.S.

248, 251 (1991); accord Lawrence v. Commonwealth, 17 Va. App.

140, 145, 435 S.E.2d 591, 594 (1993) ("'A suspect may . . .

delimit as he chooses the scope of the search to which he

consents.'" (quoting Jimeno, 500 U.S. at 252)); Megel v.

Commonwealth, 262 Va. 531, 534, 536, 551 S.E.2d 638, 640, 642

(2001) (concluding that defendant's written agreement to

"subject himself to random, unannounced home visits by the

sheriff" while under an electronic incarceration program did not

give the police the generalized right to fully search his home).

Therefore, notification by a citizen of a possible crime in his

or her home authorizes the police to "make a prompt warrantless

search of the area to see if there are other victims or if a

[criminal] is still on the premises," Mincey, 437 U.S. at 392,

to protect property, or to render emergency aid or assistance if

the police reasonably believe that such protection, aid, or

assistance is needed. See generally 3 W. Lafave, Search and

Seizure § 6.6, at 390-407 (1996). To conduct a more extensive

search of the citizen's home, the Fourth Amendment requires a

warrant, consent, or additional exigencies. See Flippo, 528

U.S. at 12-13 (finding no exception to the warrant requirement
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where the police are called to a crime scene); Thompson v.

Louisiana, 469 U.S. 17, 21 (1984) (per curiam) (same); Mincey,

437 U.S. at 390 (same). Consequently, a call to police for

assistance when a crime has been committed does not relinquish

or diminish a citizen's Fourth Amendment right to privacy in his

or her home. See Thompson, 469 U.S. at 22 (finding that

petitioner's attempt to get medical assistance and a call to

police from her daughter did not diminish petitioner's

expectation of privacy in her home); Elliotte v. Commonwealth, 7

Va. App. 234, 239, 372 S.E.2d 416, 419 (1988) (finding that

consent to search the home "must be unequivocal, specific and

intelligently given . . . and it is not lightly to be inferred"

(internal quotation omitted)).

Applying these principles, we hold that the dispatch of the

police pursuant to a contract for home security and the sounding

of the home's alarm, like any dispatch of the police to a crime

scene, does not, without more, provide authority to conduct a

full criminal investigation of the premises. Cf. McNair, 31 Va.

App. at 83-84, 521 S.E.2d at 307-08 (finding full investigatory

search of defendant's home, a crime scene, proper because

defendant failed to withdraw consent when the search was

expanded in his presence). Because the search in this case was

conducted without a warrant or valid consent, it was unlawful

and the evidence obtained as a result is inadmissible. See Mapp

v. Ohio, 367 U.S. 643, 655 (1961) ("[A]ll evidence obtained by
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searches and seizures in violation of the Constitution is

. . . inadmissible in a state court."). Accordingly, we reverse

the trial court's judgment and Hargraves' conviction.

B. Sufficiency of the Evidence

Notwithstanding the fact that we reverse for a Fourth

Amendment violation, "we address appellant's sufficiency of the

evidence argument because the Commonwealth would be barred on

double jeopardy grounds from retrying appellant if we were to

reverse for insufficiency of the evidence." Timbers v.

Commonwealth, 28 Va. App. 187, 202, 503 S.E.2d 233, 240 (1998);

see also Parsons v. Commonwealth, 32 Va. App. 576, 581, 529

S.E.2d 810, 812 (2000) (citing Burks v. United States, 437 U.S.

1, 98 (1978)).

"When considering the sufficiency of the
evidence on appeal of a criminal conviction,
we must view all the evidence in the light
most favorable to the Commonwealth and
accord to the evidence all reasonable
inferences fairly deducible therefrom. The
jury's verdict will not be disturbed on
appeal unless it is plainly wrong or without
evidence to support it."

Clark v. Commonwealth, 30 Va. App. 406, 409-10, 517 S.E.2d 260,

261 (1999) (quoting Traverso v. Commonwealth, 6 Va. App. 172,

176, 366 S.E.2d 719, 721 (1988)). In making this assessment, we

consider all admitted evidence, including illegally admitted

evidence. Lockhart v. Nelson, 488 U.S. 33, 41 (1988). "If

there is evidence to support the conviction, the reviewing court

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is not permitted to substitute its judgment, even if its view of

the evidence might differ from the conclusions reached by the

finder of fact at the trial." Commonwealth v. Taylor, 256 Va.

514, 518, 506 S.E.2d 312, 314 (1998). We accord the judgment of

a trial court sitting without a jury the same weight as a jury

verdict. See Clay v. Commonwealth, 30 Va. App. 254, 258, 516

S.E.2d 684, 685 (1999).

Hargraves argues that the evidence presented by the

Commonwealth fails to establish that he was aware of the

presence of the drugs. We disagree.

"To establish possession of a controlled substance, it

generally is necessary to show that the defendant was aware of

the presence and character of the particular substance and was

intentionally and consciously in possession of it." Gillis v.

Commonwealth, 215 Va. 298, 301, 208 S.E.2d 768, 771 (1974).

However, "suspicion or even probability of guilt is not

sufficient. There must be an unbroken chain of circumstances

'proving the guilt of the accused to the exclusion of any other

rational hypothesis and to a moral certainty.'" Gordon v.

Commonwealth, 212 Va. 298, 300, 183 S.E.2d 735, 736 (1971)

(quoting Brown v. Commonwealth, 211 Va. 252, 255, 176 S.E.2d

813, 815 (1970)). The Commonwealth must point to:

evidence of acts, statements, or conduct of
the accused or other facts or circumstances
which tend to show that the defendant was
aware of both the presence and the character

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 of the substance and that it was subject to
his dominion and control.

Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364,

368-69 (1994) (en banc) (citation omitted); see also Andrews v.

Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814 (1975).

Although "ownership or occupancy of the premises where the drug

is found does not create a presumption of possession . . . these

factors may be considered in deciding whether an accused

possessed the drug." Walton v. Commonwealth, 255 Va. 422, 426,

497 S.E.2d 869, 872 (1998) (citations omitted).

The police found drugs, scales, cash, and plastic baggies

in a drawer that Hargraves used for his personal belongings.

The evidence unequivocally demonstrates that the contents of the

drawer were under Hargraves' sole dominion and control. Glasper

testified that Hargraves shared the home with her, occupied the

left side of the bed and exclusively used the headboard and its

drawer on that side. Furthermore, the police found Hargraves'

identification card among the drug evidence.

The nature of the evidence found also indicates that

Hargraves was aware of "the presence and character of the

particular substance" in his drawer. The large plastic bag full

of 56.9 grams of powder cocaine would have been easily visible

in Hargraves' personal drawer.

Hargraves also contends the Commonwealth has not excluded

his hypothesis that the unknown intruder placed the contraband

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in his drawer. See McNair, 31 Va. App. at 86, 521 S.E.2d at 308

("Circumstantial evidence is sufficient to prove guilt beyond a

reasonable doubt so long as 'all necessary circumstances

proved . . . exclude every reasonable hypothesis of innocence.'"

(quoting Bishop v. Commonwealth, 227 Va. 164, 169, 313 S.E.2d

390, 393 (1984))). Because the evidence does not support this

hypothesis, the Commonwealth is not charged with disproving it.

See Goins v. Commonwealth, 251 Va. 442, 467, 470 S.E.2d 114, 130

(1996) (holding that hypotheses which must be excluded are those

that "arise from the evidence rather than from the imagination

of defense counsel" (citations omitted)); Hamilton v.

Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993)

(finding that the Commonwealth met its burden without dispelling

defendant's unsupported contention that someone else

"surreptitiously discarded the pipe and cocaine in the car").

In addition, the Commonwealth need not disprove Hargraves'

hypothesis because it is unreasonable. See McNair, 31 Va. App.

at 86, 521 S.E.2d at 308 (holding that the Commonwealth must

exclude only reasonable hypotheses of innocence). First,

although the police found the room ransacked and several drawers

open upon inspection, this particular drawer was closed.

Second, the drawer contained $1,100 in cash. If the intruder

had searched the drawer, it is reasonable to conclude that he or

she would have taken the cash. Third, it is highly unlikely

that the intruder would have left such a valuable amount of
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cocaine and electronic scales in the drawer. See Brown v.

Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 883 (1992) (en

banc) ("[T]he finder of fact may infer from the value of drugs

found on premises owned or occupied by an individual that it is

unlikely anyone who is a transient would leave a thing of great

value in a place not under his dominion and control." (citation

omitted)).

The evidence is, therefore, sufficient to prove that

Hargraves possessed cocaine with intent to distribute. For the

reasons stated in this opinion, we reverse and remand for a new

trial if the Commonwealth be so disposed.

Reversed and remanded.

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