Whitaker v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Frank and Humphreys
Argued at Chesapeake, Virginia

COLLIN W. WHITAKER, S/K/A
COLLIN WAYNE WHITAKER
OPINION BY
v. Record No. 2802-00-1 JUDGE ROBERT J. HUMPHREYS
OCTOBER 16, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge

Willard M. Robinson, Jr. (Law Offices of
Willard M. Robinson, Jr., on brief), for
appellant.

Marla Graff Decker, Assistant Attorney
General (Randolph A. Beales, Acting Attorney
General, on brief), for appellee.

Collin W. Whitaker appeals his conviction after a bench

trial of possession of marijuana with intent to distribute.

Whitaker contends the trial court erred in denying his motion to

suppress evidence, which he argues was obtained under the

authority of a stale search warrant and as a result of an

unlawful detention. For the reasons that follow, we affirm in

part and reverse in part and remand.

I. Background

On March 7, 2000, Detective Randy Ronneberg of the Newport

News Police Department Narcotics Division received information

from a "reliable informant" that "a black male, dark brown
skinned, 5'7"-5'8", 200-225 lbs, fade hair cut, slight mustache,

34-38 yrs old," had sold marijuana to an individual in a "hand

to hand [sic] transaction for money," at a residence located at

519 North Avenue in Newport News. The informant also indicated

that a "quantity of marijuana remained for sell [sic] by this

black male," that the man drove a gray truck, that the man was

only present at the dwelling when the truck was parked in the

driveway, and that the man kept two large attack dogs inside the

dwelling.

Based on this information, Detective Ronneberg immediately

obtained a warrant to search the dwelling located at 519 North

Avenue. The warrant authorized police to search the premises

for marijuana, money, records, and all other "drug-related"

paraphernalia. That same evening, police officers began

surveillance of the residence. However, the gray truck was not

present. The officers continued to watch the residence on March

8, 2000 and March 9, 2000, but the gray truck was not present on

either day.

On March 13, 2000, Detective Ronneberg received information

that the gray truck was present at the residence. Detective

Brandon Price reported to the location. About ten minutes after

he arrived, he observed a "black male" get into the truck and

leave the residence. Price followed the truck and observed that

the driver matched the description of the individual referred to

in the search warrant. Price telephoned Ronneberg, who then

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proceeded to the location and picked up surveillance of the

truck. When the truck pulled into a driveway at 315 Huntington

Avenue, about a mile to a mile and one-half from 519 North

Avenue, Detective Ronneberg pulled into the driveway behind it.

Detective Ronneberg approached the driver, showed the

driver his badge, identified himself, and informed the driver

that he "was being detained in reference to a search warrant."

Ronneberg asked the driver if he was Collin Whitaker and the

driver replied, "Yes." Ronneberg then asked Whitaker if he had

any narcotics on his person. Whitaker responded that he had

marijuana. Ronneberg searched Whitaker and found marijuana. He

then arrested Whitaker and advised him of his Miranda rights.

Next, Ronneberg asked Whitaker if there were any drugs in

the house to be searched. Whitaker replied that there was a

"half ounce in the house." Whitaker also admitted that there

were scales in the house. Whitaker confirmed that there were

two dogs and stated that his wife was there and would take care

of them. 1 Ronneberg and the other officers then took Whitaker

back to the residence and executed the warrant. With Whitaker's

cooperation, police found an ounce and one-half of marijuana,

which was packaged in three clear plastic bags, on the floor of

a closet in the den area of the home. Police also found a metal

1
During the suppression hearing, Whitaker testified that he
had a Chihuahua and Pit Bull in the home.

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hand-held scale in an orange candy jar "in the same room that

this marijuana was located."

The police then took Whitaker to the station for booking.

While there, Ronneberg asked Whitaker about the contraband and

Whitaker explained that he was "a smoker and that people came

over to his house to smoke." When asked if he had "ever given

anybody marijuana at [his] house," Whitaker replied, "Yes."

Whitaker was indicted for possession of more than one-half

ounce, but less than five pounds, of marijuana with intent to

distribute. Prior to trial, Whitaker moved to suppress the

evidence related to his arrest, arguing that the warrant was

stale at the time of execution, that his detention away from the

residence was unlawful, and that his statement in response to

Detective Ronneberg's questioning as to whether he had "ever"

given marijuana to anyone was unrelated to any present intent to

distribute.

During the hearing, Ronneberg testified that the length of

time it took to ultimately stop Whitaker amounted to the time

necessary for "[the officers] to get in [their] vehicles, get up

in that area to a radio [sic] marked unit to stop the vehicle."

In response to the prosecutor's question, "Matter of minutes

then?" Ronneberg replied, "Correct."

After the hearing on the motion, the trial court denied the

motion, finding that the officers were entitled to "a little bit

of latitude in terms of what they deem to be the most opportune

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time" to execute the warrant and that the detention was lawful

because "there was a safety issue from the officer's [sic]

perspective." The trial court also found that Whitaker's claim

with regard to the context of his statement went to its weight

as evidence, rather than its admissibility.

Whitaker moved to suppress again during trial. This motion

was also denied by the trial court. Subsequently, the

Commonwealth put on Detective Ronneberg as an expert witness,

who opined that the weight of the marijuana found "could go

either way" on the issue of whether it was consistent or

inconsistent with personal use. Ronneberg further testified

that the presence or absence of scales "generally [goes] with

the intent to distribute," but then stated, "[he had] run across

where users also have scales." He finally opined that "[d]ue to

the fact of no smoking device pushes the opinion as more for

distribution than it is for personal use."

At the close of evidence, the trial court found Whitaker

guilty of the charge, holding:

All right. The Court looks at the amount of
the marijuana and how it was packaged, the
fact that the defendant lacked credibility,
the fact that there was no apparent
paraphernalia that's consistent with
personal possession was found [sic].
Looking at the totality of the
circumstances, the Court does not think it
should reduce this to anything.

Whitaker was subsequently sentenced to five years imprisonment,

with five years suspended.

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 We analyze the actions of the officers as three separate

events: the execution of the search warrant; the stop and

detention of Whitaker; and the interrogation of Whitaker.

II. The Execution of the Search Warrant

Whitaker bases his chief argument on the Fourth Amendment

and Code § 19.2-56, contending that the trial court erred in

refusing to suppress the evidence found in his home, because the

warrant upon which the search was based was stale. We disagree.

We first note that "[q]uestions of reasonable suspicion and

probable cause to . . . search are subject to de novo review on

appeal. 'In performing such analysis, we are bound by the trial

court's findings of historical fact unless "plainly wrong" or

without evidence to support them[.]'" Archer v. Commonwealth,

26 Va. App. 1, 8, 492 S.E.2d 826, 830 (1997) (quoting McGee v.

Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997)

(en banc)). Further, when we review a trial judge's refusal to

suppress evidence, we consider the "evidence adduced at both the

trial and the suppression hearing." Greene v. Commonwealth, 17

Va. App. 606, 608, 440 S.E.2d 138, 139 (1994). On appeal, the

burden is upon the appellant to show that the denial of the

motion to suppress constitutes reversible error. See Fore v.

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

Whitaker correctly contends that:

Code § 19.2-56 contains two time
limitations, a fifteen-day bar and a
"forthwith" requirement. The fifteen-day

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 bar serves to extinguish absolutely the
viability of a search warrant if not
executed within fifteen days, regardless of
circumstances. The "forthwith" requirement
of Code § 19.2-56 is directory and defines
the policy of the Commonwealth that search
warrants be executed as soon as reasonably
practical while probable cause continues to
exist.

Turner v. Commonwealth, 14 Va. App. 737, 740, 420 S.E.2d 235,

237 (1992). Whitaker argues that it is the "forthwith"

requirement of this statute that the officers failed to comply

with. However, "'[f]orthwith' is a practical and flexible

standard which must conform to the necessities of

circumstances." Id. Thus, "a warrant will be tested for

'staleness' by considering whether the facts alleged in the

warrant provided probable cause to believe, at the time the

search actually was conducted, that the search conducted

pursuant to the warrant would lead to the discovery of evidence

of criminal activity." Johnson v. Commonwealth, 259 Va. 654,

671, 529 S.E.2d 769, 778 (2000).

The ultimate criterion in determining the
degree of evaporation of probable cause,
however, is not case law but reason. The
likelihood that the evidence sought is still
in place is a function not simply of watch
and calendar but of variables that do not
punch a clock: the character of the crime
(chance encounter in the night or
regenerating conspiracy?), of the criminal
(nomadic or entrenched?), of the thing to be
seized (perishable and easily transferable
or of enduring utility to its holder?), of
the place to be searched (mere criminal
forum of convenience or secure operational
base?), etc. The observation of a

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 half-smoked marijuana cigarette in an
ashtray at a cocktail party may well be
stale the day after the cleaning lady has
been in; the observation of the burial of a
corpse in a cellar may well not be stale
three decades later. The hare and the
tortoise do not disappear at the same rate
of speed.

Turner, 14 Va. App. at 745, 420 S.E.2d at 240. Furthermore,

other relevant considerations to whether a warrant was executed

"forthwith" "might include the safety of the officers executing

the warrant, the safety of others in the area and other

competing law enforcement interests which preclude an immediate

execution of the warrant." Id. at 747 n.2, 420 S.E.2d at 241

n.2.

Here, the warrant was issued based upon probable cause to

believe the informant had witnessed Whitaker sell marijuana from

his home and that "a quantity of marijuana remained for sell

[sic]." The delay of six days between issuing the warrant and

the search, standing alone, did not vitiate the reasonable

belief that contraband would be on the premises and in the

possession of Whitaker, the occupant described by the informant.

The fact that the remaining drugs were described as a "quantity"

significant enough for continued sale, and that they were being

offered for sale from a particular residence, suggests a

continuing enterprise. See id. at 746, 420 S.E.2d at 240.

Indeed, we have held that "[t]he selling of drugs, by its

nature, is an ongoing activity." Id.

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 In addition to the above, by his own admission, Whitaker

left the home on March 7, 2000, the day the warrant was issued,

and did not return until March 13, 2000, the day the warrant was

executed. Consequently, the officers could have reasonably

concluded that the contraband remained at the residence after

the informant left and would remain there until the person who

had been engaged in the illegal sale of the drugs returned.

Finally, the officers had information from the informant

that Whitaker owned two attack dogs that were kept inside the

house. They had no information prior to confronting Whitaker

that there was anyone other than himself living at the

residence. Thus, the police officers were reasonably concerned

for their safety, which further supported their decision to

await Whitaker's return before executing the warrant.

Accordingly, we hold that under the circumstances of this

case, the police officers, by waiting six days to execute the

warrant, did not violate either the "forthwith" provision of the

statute or the Fourth Amendment. The officers executed the

warrant as soon as reasonably practicable under the

circumstances. Given our holding in this regard, we need not

address the Commonwealth's contention concerning the application

of the "good faith exception."

III. The Stop and Detention

Whitaker next argues that the trial court improperly denied

his motion to "suppress all evidence because the search and

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statements made by [him] were the result of an illegal stop and

warrantless arrest." The Commonwealth, relying chiefly on

Michigan v. Summers, 452 U.S. 692 (1981), Williams v.

Commonwealth, 4 Va. App. 53, 354 S.E.2d 79 (1987), and Allen v.

Commonwealth, 3 Va. App. 657, 353 S.E.2d 162 (1987), responds

that Whitaker was lawfully seized and detained for the purpose

of the execution of the search warrant. We disagree with the

position of the Commonwealth.

The Fourth Amendment says that the "right of
the people to be secure in their persons,
houses, papers, and effects, against
unreasonable searches and seizures, shall
not be violated." U.S. Const., Amdt. 4.
Its "central requirement" is one of
reasonableness. In order to enforce that
requirement, this Court has interpreted the
Amendment as establishing rules and
presumptions designed to control conduct of
law enforcement officers that may
significantly intrude upon privacy
interests. Sometimes those rules require
warrants. We have said, for example, that
in "the ordinary case," seizures of personal
property are "unreasonable within the
meaning of the Fourth Amendment," without
more, "unless . . . accomplished pursuant to
a judicial warrant," issued by a neutral
magistrate after finding probable cause.

Illinois v. McArthur, 121 S. Ct. 946, 949-50 (2001) (quoting

United States v. Place, 462 U.S. 696, 701 (1983)). "We

nonetheless have made it clear that there are exceptions to the

warrant requirement. When faced with special law enforcement

needs, diminished expectations of privacy, minimal intrusions,

or the like, the Court has found that certain general, or

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individual, circumstances may render a warrantless search or

seizure reasonable." Id.

Based on these principles, courts have long held that a

warrant to search the premises carries with it the limited

authority to detain the occupants while a proper search is

conducted. See Summers, 452 U.S. at 705. In Summers, the

United States Supreme Court held that it was constitutionally

permissible for police officers to detain the defendant, who was

found descending the front steps of his dwelling, for purposes

of conducting a search of the premises authorized by a valid

search warrant. See id. at 704-05. In so holding, the Supreme

Court found that the minor intrusiveness of detaining a resident

in his home is outweighed by the law enforcement interests in:

(1) preventing flight if incriminating evidence is found; (2)

minimizing the risk of harm to the officers from violent

occupants; and (3) conducting an orderly search with the

occupants' help in unlocking doors and containers. See id. at

701-03; see also United States v. Hogan, 25 F.3d 690, 693 (8th

Cir. 1994). The Court also observed that the existence of the

search warrant provided an articulable and individualized

suspicion which justified the "limited authority to detain the

occupants at the premises." Summers, 452 U.S. at 705; see also

United States v. Cochran, 939 F.2d 337, 339 (6th Cir. 1991).

Here, Whitaker was not on or in the premises when the

officers first approached the residence to execute the warrant.

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Instead, officers watched Whitaker drive over a mile and

one-half away from the premises, and waited for him to reach his

apparent destination before approaching his vehicle and

informing him of his detention "pursuant to" the search warrant.

Officers then questioned Whitaker about marijuana on his person,

arrested and Mirandized him, then questioned him further, before

transporting him back to his home in order to execute the

warrant. On these facts, we find the rationale of Summers to be

inapplicable.

While we recognize that Summers does not impose upon police

an explicit duty based on geographic proximity to the site of

the search, it clearly stresses the propriety and reasonableness

of police performance in the manner in which they execute the

warrant. We find on these facts that the conduct of the police

officers does not satisfy the standards of reasonableness

required under the Fourth Amendment.

We reiterate that the right to detain the occupant of

premises to be searched is a limited one based upon the threefold

rationale noted by the Summers Court. On the facts before us,

however, there is no issue of preventing flight if incriminating

evidence were to be found. Whitaker had left the premises and,

until his return, he would have had no way of knowing that a

search had been or was being conducted.

Likewise, the right to detain occupants to minimize the risk

of harm to the officers from violent residents is inapplicable

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because the officers believed Whitaker was the sole occupant of

the house and there is no evidence in this record that the police

suspected the presence of other potentially violent occupants. In

our view, Summers permits the limited detention of potentially

violent individuals who otherwise have a constitutional right to

be free from governmental interference who are on or in the

immediate vicinity of the place to be searched and who might,

therefore, interfere with the orderly execution of the search

warrant.

Finally, the Commonwealth asserts that the presence of two

"attack dogs" justifies the off-premises detention of Whitaker.

However, we do not read Summers to support this proposition. In

furtherance of the goal of an orderly execution of a search

warrant, an occupant's help in unlocking doors and containers or,

as here, with the restraint of animals on the premises, may be

convenient and helpful to the police. We do not believe, however,

that this reason is sufficient, standing alone, to justify the

detention and involuntary transportation to the scene of a search,

an individual who is not named in the search warrant and who is a

significant distance from the premises to be searched. Thus, we

decline the Commonwealth's invitation to extend Summers to the

circumstances of this case.

Furthermore, the remaining cases relied upon by the

Commonwealth also do not support an extension of Summers. In

Allen, the officers, as in this case, had a search warrant for

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the home and detained the defendant for purposes of executing

the warrant. We held that the defendant's detention was

permissible under the doctrine of Summers. See Allen, 3 Va.

App. at 662, 353 S.E.2d at 165. However, the defendant in that

case was stopped by police in a van traveling along a

single-lane driveway leading from the house. See id. at 659-60,

353 S.E.2d at 163-64. The defendant had not yet left the

curtilage. In addition, the defendant was aware that the police

were about to search his residence and was, thus, a risk to flee

or possibly destroy evidence if not detained. Furthermore, the

officers had earlier observed occupants of the premises to be in

possession of shotguns. See id.

Finally, in Williams, we held that a stop and detention of

the defendant, who was stopped after having driven three to four

blocks away from his home, was permissible because "the officers

who detained [the defendant] clearly possessed sufficient

articulable facts to support a reasonable suspicion that [the

defendant] was, or had been, engaged in criminal activity."

Williams, 4 Va. App. at 65, 354 S.E.2d at 85-86. In short, our

holding in Williams was not based upon the holding of Summers.

Instead, we held that the detention of Williams was based upon

the articulation of reasonable suspicion that Williams was

involved in criminal activity. Unlike Williams, here, the

Commonwealth has not asserted a claim of reasonable suspicion

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sufficient to support a Terry stop. See Terry v. Ohio, 392 U.S.

1, 30 (1968).

Based upon the above, we find the facts of this case

insufficient to support the Commonwealth's assertion that

Whitaker's detention, over a mile away from his home, was lawful

pursuant to the Fourth Amendment and the rationale of Summers,

and we reverse the decision of the trial court on this issue.

IV. The Interrogation

Whitaker finally argues that the trial court erred in

admitting his "statement," contending that all statements made

by him were made pursuant to an illegal arrest. The

Commonwealth concedes that Whitaker's first statement, that he

had marijuana on his person, should have been excluded.

However, the Commonwealth argues that the admission of the

statement was harmless error. The Commonwealth further contends

that any statements made after that time, which were made after

Whitaker was arrested and Mirandized, were admissible by virtue

of the Miranda warnings. Again, we disagree.

"'Before a federal constitutional error can be held

harmless, the court must be able to declare a belief that it was

harmless beyond a reasonable doubt.'" Ellis v. Commonwealth,

227 Va. 419, 423, 317 S.E.2d 479, 481 (1984) (quoting Chapman v.

California, 386 U.S. 18, 24 (1967)). On this record, although

the Commonwealth claims that Whitaker's initial statement to

police was of no consequence and that Whitaker was not charged

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with possession of marijuana on his person, we cannot determine

whether the trial court relied upon the tainted statement in

finding Whitaker guilty of the crime charged. Furthermore,

[t]he United States Supreme Court has
expressly rejected a per se rule that
Miranda warnings dissipate the taint of an
illegal seizure. While we agree that the
giving of Miranda warnings is a factor which
the trial and appellate courts should
consider, we must consider the totality of
the circumstances surrounding the violation
of the suspect's rights.

Watson v. Commonwealth, 19 Va. App. 659, 665, 454 S.E.2d 358,

362 (1995) (citations omitted). Indeed, "[t]his Court has

recognized that evidence which is 'directly linked to the

primary taint of the illegal seizure' is not admissible against

the person illegally seized." Id. at 665-66, 454 S.E.2d at 362

(quoting Deer v. Commonwealth, 17 Va. App. 730, 737, 441 S.E.2d

33, 38 (1994)).

Here, for the reasons noted above, when Whitaker was first

detained, he was illegally seized. While illegally seized,

Whitaker made an incriminating statement, which led police to

find marijuana on his person. This statement and the marijuana

found on his person were the direct result of the illegal

seizure and were, therefore, inadmissible. See Wong Sun v.

United States, 371 U.S. 471, 487-88 (1963); see also Davis v.

Commonwealth, 35 Va. App. 533, 543, 546 S.E.2d 252, 257 (2001).

The subsequent arrest, which was based directly on the illegally

obtained statement and, therefore, indirectly on the illegal

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seizure, was likewise, illegal. Furthermore, Whitaker's

statements to police following the arrest "flowed one from the

other with no discernable break in the chain of causation";

thus, those statements were the proverbial fruit of the

poisonous tree and were also inadmissible. Deer, 17 Va. App. at

737, 441 S.E.2d at 38.

Nevertheless, we note that, although Whitaker's statements

and the marijuana found on his person were inadmissible, we have

determined that the warrant, and the search pursuant thereto,

were valid. Because we are not in the position of fact finder,

we cannot determine whether the contraband found in Whitaker's

home would have inevitably been found by police during the

execution of the search warrant, despite Whitaker's inadmissible

statements directing police to the various locations of the

items. Accordingly, we reverse and remand this matter for

further proceedings consistent with this opinion, with direction

to the trial court to make this determination on any retrial

should the Commonwealth be so advised.

Affirmed in part,
reversed in part and
remanded.

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