COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Elder
Argued at Norfolk, Virginia
WALTER LEE CHERRY, JR.
v. Record No. 1458-93-1 OPINION
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA OCTOBER 10, 1995
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Jerome B. Friedman, Judge
Besianne Tavss Shilling (John R. Fletcher; Tavss,
Fletcher, Earley & King, P.C., on briefs),
for appellant.
Kathleen B. Martin, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Walter Lee Cherry (appellant) appeals from his bench trial
conviction by the Circuit Court of the City of Virginia Beach
(trial court) for possession of more than five pounds of
marijuana with intent to distribute. Appellant entered a plea of
guilty, conditioned upon his right to appeal the trial court's
refusal to suppress the evidence admitted as a result of a
1
previous panel decision.
Appellant concedes that the evidence presented at the trial
from which this appeal emanates is the same as was before the
trial court in the prior case. The record discloses that on
November 6, 1991, Detective A. B. Byrum (Byrum) of the Virginia
Beach Police Department received information from a special agent
1
Commonwealth v. Cherry, Record No. 1249-92-1, referred to
herein as the "prior case."
of the United States Customs Service that a suspected package of
marijuana was being shipped via United Parcel Service (UPS) to
Walter Lee Cherry at 3021 Gentry Road, Virginia Beach, Virginia.
That address is appellant's home.
When the package arrived at the Virginia Beach UPS office,
the police were advised. A trained narcotics search dog was
taken to that office and alerted on the package. Pursuant to the
dog's alert, a warrant to search the package was procured. The
package was opened, searched, and numerous individual bags of
marijuana were found. The package was resealed and a second
warrant was obtained that gave the following authorization to
search appellant's premises:
To Detective A. B. Byrum:
You are hereby commanded in the name of the
Commonwealth to forthwith search either day
or night 3021 Gentry Road, Virginia Beach,
Virginia for the following property, objects
and/or persons: Marijuana.
The warrant, being anticipatory, contained the further proviso
that "UPON DELIVERY OF SAID PACKAGE, EXECUTION OF THIS SEARCH
WARRANT IS GRANTED."
On November 7, 1991, the package was delivered to 3021
Gentry Road, Virginia Beach, Virginia by Virginia Beach Detective
Duane Hart (Hart), who posed as a UPS delivery person. Hart
verified the delivery to Byrum, who was waiting outside
appellant's house with Agent Saunders of United States Customs,
and Virginia Beach Police Officers Houston, Mills, Kurrle,
Stafford, Crayle, Santos, and Hart. The officers then proceeded
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to execute their search as had been planned. When they received
no response to a knock, the officers pushed the door open and
entered the premises. Within a matter of seconds after the
entry, the package was recovered, unopened, in a downstairs
bedroom. The house was quickly secured.
Each officer was assigned an area of the house to search.
In addition to the package, the search revealed two sets of
scales, plastic baggies, packaging material, and a small
additional amount of marijuana in an upstairs bedroom. A
laboratory analysis revealed that the substance in the package
was marijuana, weighing in excess of five pounds.
On March 2, 1992, appellant was indicted for possession of
more than five pounds of marijuana with intent to distribute. In
the prior case, he filed a motion to suppress all the evidence
found in the house, alleging that the evidence had been obtained
during an illegal search and seizure of his house on November 7,
1991. In that case, the trial court denied the general motion to
suppress all the evidence found in appellant's house but
sustained that portion of the motion that dealt with the evidence
found in the bedroom after the UPS package had been discovered.
From that decision, the Commonwealth appealed and in a prior
memorandum opinion, 2 we reversed the trial court's order
suppressing evidence found incident to execution of the
anticipatory search warrant and remanded the case to the trial
2
See supra note 1.
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court for such further proceedings as the Commonwealth may be
advised.
On March 17, 1993, appellant entered a plea of guilty,
conditioned upon his right to appeal. As noted, appellant
concedes that the evidence reviewed by this Court in its November
3, 1992 opinion is the same as presented at the trial from which
this appeal emanates. Appellant contends that the anticipatory
search warrant limited the search to the package delivered, and
that the police exceeded the scope of the warrant in conducting a
general search of the premises for marijuana. These are the same
arguments previously made in opposition to the Commonwealth's
appeal of the suppression ruling.
I.
Citing Commonwealth v. Burns, 240 Va. 171, 395 S.E.2d 456
(1990), the Attorney General argues that because a panel of this
Court previously decided that the evidence discovered during the
search of appellant's residence after the UPS package had been
found should not have been suppressed, appellant is by the
doctrine of stare decisis barred by that panel's decision from
raising that issue again in the appeal before us. We disagree.
The rule of stare decisis controls only "if the parties are
different, though the question be the same." Steinman v.
Clinchfield Coal Corp., 121 Va. 611, 623, 93 S.E. 684, 688
(1917). The parties on this appeal are not strangers to the
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record of the interlocutory appeal. 3 Moreover, in Satchell v.
Commonwealth, 20 Va. App. 641, 460 S.E.2d 253 (1995) (en banc),
we specifically found that in an en banc proceeding an appellant
is entitled to have the full Court "reconsider an issue which was
the subject of the pretrial appeal." Id. at 647, 460 S.E.2d at
256 (quoting Code § 19.2-409).
II.
The magistrate may draw from the information presented by
the affiant reasonable inferences that are based upon objective
facts which will justify the issuance of the warrant. Boyd v.
Commonwealth, 12 Va. App. 179, 186, 402 S.E.2d 914, 918 (1991).
On appeal, the magistrate's determination of probable cause will
be given great deference. Williams v. Commonwealth, 4 Va. App.
53, 68, 354 S.E.2d 79, 87 (1987). Nothing in the record suggests
that the magistrate intended to issue a warrant to search only
for the UPS package. The evidence known to the police officers
and conveyed to the magistrate was that a substance inside the
package was alerted upon by the trained narcotics dog and found
to be marijuana packaged in numerous individual baggies. With
that information, the magistrate issued a second warrant to
search appellant's house for marijuana, limited only to the time
the search was to begin.
Appellant argues that the words "said package" limit the
3
Whether the doctrine of res judicata or law of the case can be
invoked is not before us as the Commonwealth did not raise those
issues.
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scope of the search to the package of marijuana. We disagree.
The anticipatory language of the warrant limited only the time at
which the search could begin. The warrant did not command a
search for "a package containing marijuana," or other words to
the same effect which might have limited the scope of the search.
Moreover, the "said package" contained more than five pounds of
marijuana with an estimated value of $11,000. That large amount
gave the police reasonable cause to suspect, and gave probable
cause for the magistrate to find, that appellant probably was
involved in marijuana distribution and that more evidence might
be found in other parts of the house. See Monroe v.
Commonwealth, 4 Va. App. 154, 156, 355 S.E.2d 336, 338 (1987)
(possession of controlled substance in quantity greater than that
ordinarily possessed for one's personal use sufficient to
establish intent to distribute).
A search warrant is valid if it describes with specification
the places to be searched and the items to be seized. Code
§§ 19.2-53, -56. Here, appellant's address was identified in the
warrant as the place to be searched, and "marijuana" was
specified as the item to be seized. The warrant issued by the
neutral magistrate specifically described the premises to be
searched as the place that was searched. It defined the
substance to be searched for as "marijuana." That is the
substance that the officers clearly had probable cause to suspect
would be concealed on the premises. A search is not invalid
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merely because officers seize items not named in the warrant.
See Coolidge v. New Hampshire, 403 U.S. 443 (1971).
A lawful search of premises described in a
warrant "extends to the entire area in which
the object of the search may be found and is
not limited by the possibility that separate
acts of entry or opening may be required to
complete the search."
Kearney v. Commonwealth, 4 Va. App. 202, 205, 355 S.E.2d 897, 899
(1987) (quoting United States v. Ross, 456 U.S. 798, 820-21
(1982)).
We hold that the warrant permitted a search of the entire
premises for marijuana, and that the only limitation relevant to
this appeal was the time at which the search could begin.
For the reasons stated, the judgment of the trial court is
affirmed.
Affirmed.
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Elder, J., dissenting.
I respectfully dissent because I believe the search of
appellant's house exceeded the scope of the anticipatory search
warrant and was unreasonable under the fourth amendment. I would
therefore reverse the conviction.
As Satchell v. Commonwealth, 20 Va. App. 641, 460 S.E.2d 253
(1995) (en banc), indicates, we must review this issue in the
light most favorable to appellant. This is so because the trial
court ruled in appellant's favor on the suppression issue after
making findings that "constitute[d] the factual predicate to
which we must apply our legal analysis." Id. at 648, 460 S.E.2d
at 256.
The record reveals the police obtained an anticipatory
search warrant from the magistrate. "An anticipatory search
warrant is defined as 'a warrant based upon an affidavit showing
probable cause that at some future time (but not presently)
certain evidence of crime will be located at a specified place.'"
McNeill v. Commonwealth, 10 Va. App. 674, 677 n.1, 395 S.E.2d
460, 462 n.1 (1990) (quoting 1 W. LaFave, Search and Seizure
§ 3.7(c), at 698 (1978)). I agree with the majority that there
was probable cause to believe the package of marijuana would be
located at appellant's premises at the time the search was
executed. See id. at 680, 395 S.E.2d at 463-64.
However, I do not agree with the majority concerning the
lawful scope of the search. "The permissible scope of a search
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is limited by the terms of the warrant pursuant to which it is
conducted." Kearney v. Commonwealth, 4 Va. App. 202, 204, 355
S.E.2d 897, 898 (1987). In this case, the warrant provided "upon
delivery of said package, execution of this search warrant is
granted." The only basis for the issuance of the warrant was the
delivery of the specific package of marijuana. Once the package
was found, any further search by police was unreasonable and
unconstitutional. See Horton v. California, 496 U.S. 128, 140
(1990). The record reveals police testimony to support this
conclusion. Detective Byrum, who was in charge of the search,
testified that the warrant was invalid until the package was
delivered and that the package was the sole object of the search.
In my opinion, the majority misinterprets the authority
conferred by the warrant. First, the majority improperly
concludes that the anticipatory language limited only the time at
which the search could begin. Second, the majority ignores the
specific limiting language of the warrant and the facts in the
underlying affidavit. It is true that the warrant states that
"[t]he things or persons to be searched for are . . . marijuana."
However, under the majority's approach, the warrant is reduced
to an unconstitutional "general warrant" that fails to
particularly describe the objects to be seized. See Morke v.
Commonwealth, 14 Va. App. 496, 419 S.E.2d 410 (1992) (stating
general warrants are proscribed by both the fourth amendment and
Code § 19.2-54).
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There are no applicable exceptions that would validate the
seizure of objects other than the package. The items seized from
the upstairs room at least thirty minutes after the package was
found were not in plain view, see Cantrell v. Commonwealth, 7 Va.
App. 269, 282, 373 S.E.2d 328, 334 (1988), and the actions of the
police did not fall under the so-called "good faith" exception.
See McCary v. Commonwealth, 228 Va. 219, 232, 321 S.E.2d 637, 644
(1984). Viewed in the light most favorable to appellant, the
police officers could not reasonably have believed that they were
authorized to search the entire house for any and all marijuana
found therein. Officer Byrum's testimony belies such an
assertion, as he specifically stated the sole object of the
search was the delivered package. See generally United States v.
Leon, 468 U.S. 897 (1984); Atkins v. Commonwealth, 9 Va. App.
462, 389 S.E.2d 179 (1990).
Therefore, I would reverse appellant's conviction because
the police exceeded their authority to search.
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