COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Clements
Argued at Richmond, Virginia
DAVID EVAN BROWN
MEMORANDUM OPINION * BY
v. Record No. 1666-00-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
OCTOBER 16, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Matthew T. Paulk, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Susan M. Harris, Assistant Attorney General
(Mark L. Earley, Attorney General; Shelly R.
James, Assistant Attorney General, on brief),
for appellee.
David Evan Brown (appellant) was convicted in a bench trial
of possession of a firearm while in possession of cocaine with
intent to distribute, possession with intent to distribute
cocaine, and possession of a firearm by a convicted felon.
Prior to trial, appellant was held without bond. Appellant
contends the trial court erred in (1) failing to uphold a facial
challenge to the constitutionality of Code § 19.2-120(B), and
(2) refusing to suppress evidence recovered during a
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
warrantless, nonconsensual search of appellant's apartment. For
the following reasons, we affirm appellant's convictions.
I. BACKGROUND
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to that evidence all
reasonable inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
The trial court's judgment will not be set aside unless plainly
wrong or without evidence to support it. See Hunley v.
Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999).
A. OFFENSE
So viewed, the evidence established that three police
officers, including Detective John O'Connor, were on patrol in
an unmarked van in an area known to be an open air drug market.
They were flagged down in front of 2310 North 23rd Street by a
man they believed was attempting to sell them drugs. O'Connor
saw an elderly man sitting on the porch of the residence.
O'Connor asked him if it was his apartment. The man said it was
not and he was there to visit "Heavy."
O'Connor went to the apartment, and appellant and
codefendant Whittaker answered the door. O'Connor discussed the
drug activity in the area with them. Appellant told O'Connor he
smoked marijuana but did not have any at the time. O'Connor
asked Whittaker if he could come in and look in the trash can.
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She said she had just emptied the trash, but brought the trash
can to him. O'Connor saw plastic bags with the corners removed
stuck to the bottom of the trash can. O'Connor then asked
Whittaker if he could look in the trash can outside. She told
him it was "out the back door." She met O'Connor behind the
residence and indicated which trash can contained the trash she
recently emptied. Inside the can were numerous bags with the
corners removed and "corner bags" with white powder residue.
Based on his training and experience, O'Connor believed these
items to be evidence of drug trafficking.
O'Connor asked Whittaker if there was anyone else inside
the apartment. Whittaker said "no." O'Connor then asked her if
there were any guns inside. Whittaker hesitated, looked away,
and then stated "[N]ot that I know of." O'Connor returned to
the front door and asked appellant for permission to search the
residence. Appellant refused and said "his girlfriend Tonya"
was inside. Based on the conflicting responses, O'Connor became
concerned for his safety and the possible destruction of
evidence. O'Connor went into the house, looked for other
occupants and finding none, secured the premises while he
obtained a search warrant.
At trial, appellant moved to suppress the evidence of drugs
and the gun because the officers entered his apartment without
first obtaining a warrant. The trial court denied the motion
based on the "totality of the circumstances" and determined that
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credible evidence supported the officer's concern for his safety
and the possible destruction of evidence.
B. BOND
Appellant was arraigned in general district court, and his
bond was set at $101,000. The Commonwealth appealed requesting
the circuit court to apply the presumption of Code
§ 19.2-120(B). Appellant presented no evidence to rebut the
presumption. The circuit court revoked appellant's bond and
denied bail. Appellant did not appeal the decision to deny
bond.
II. CONSTITUTIONALITY OF CODE § 19.2-120(B)
Appellant contends that Code § 19.2-120(B) 1 is
unconstitutional as drafted because it violates the Due Process
1
Code § 19.2-120(B) provides in pertinent part:
The judicial officer shall presume, subject
to rebuttal, that no condition or
combination of conditions will reasonably
assure the appearance of the person or the
safety of the public if the person is
currently charged with:
* * * * * * *
3. A violation of §§ 18.2-248, 18.2-248.01,
18.2-255 or § 18.2-255.2 involving a
Schedule I or II controlled substance if
. . . the maximum term of imprisonment is
ten years or more and the person was
previously convicted of a like offense[;]
4. A violation of §§ 18.2-308.1,
18.2-308.2, or § 18.2-308.4 and which
relates to a firearm and provides for a
minimum, mandatory sentence; [or]
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Clause of the Fifth Amendment. Appellant concedes that he does
not challenge the applicability of the statute as it applies to
him. We hold that appellant is barred from raising a facial
constitutional challenge.
An individual may only challenge the constitutionality of a
law as it applies to him or her. See Coleman v. City of
Richmond, 5 Va. App. 459, 463, 364 S.E.2d 239, 241-42 (1988)
(citing Grosso v. Commonwealth, 177 Va. 830, 839, 13 S.E.2d 285,
288 (1941)). "That the statute may apply unconstitutionally to
another is irrelevant. One cannot raise third party rights."
Id. at 463, 364 S.E.2d at 242.
Nor is the instant case one of the limited exceptions to
the general standing required to maintain such a challenge.
This is neither a case in which the First Amendment is
implicated nor is it an instance where there is no other
"effective avenue of preserving [his] rights." See Broderick v.
Oklahoma, 413 U.S. 601 (1973); Code § 19.2-124. 2
For the foregoing reasons, we conclude that appellant falls
within the general rule that one who attacks the
5. Any felony, if the person has been
convicted of two or more offenses described
in subdivision 1 or 2, whether under the
laws of this Commonwealth or substantially
similar laws of the United States[.]
2
We note that appellant failed to appeal the circuit
court's denial of his pretrial bond pursuant to Code § 19.2-124.
This issue is moot because he now stands convicted of the
underlying offenses. See Murphy v. Hunt, 455 U.S. 478 (1982).
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constitutionality of a statute must establish that his own
rights are infringed and, thus, he has no standing to facially
challenge Code § 19.2-120(B).
III. MOTION TO SUPPRESS
Appellant next contends the trial court erred in allowing
evidence found in the warrantless search of his residence. In
reviewing the trial court's denial of a motion to suppress, we
view the evidence in the light most favorable to the
Commonwealth. See Marable v. Commonwealth, 27 Va. App. 505,
509, 500 S.E.2d 233, 235 (1998). On appeal, the burden is on
appellant to show that the denial of the motion to suppress was
reversible error. See Purdie v. Commonwealth, 36 Va. App. 178,
184, 549 S.E.2d 33, 36 (2001). "'Ultimate questions of
reasonable suspicion and probable cause' . . . involve questions
of both law and fact and are reviewed de novo on appeal." McGee
v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261
(1997) (en banc) (quoting Ornelas v. United States, 517 U.S.
690, 691 (1996)). The appellate court is "bound by the trial
court's findings of historical fact unless 'plainly wrong' or
without evidence to support them and [it] give[s] due weight to
the inferences drawn from those facts by resident judges and
local law enforcement officers." Id. at 198, 487 S.E.2d at 261.
A trial court's determination of the facts is given great weight
because it is "not limited to the stark, written record," but
"has before it the living witnesses and can observe their
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demeanors and inflections." Satchell v. Commonwealth, 20 Va.
App. 641, 648, 460 S.E.2d 253, 256 (1995).
Our analysis in this case is controlled by Crosby v.
Commonwealth, 6 Va. App. 193, 367 S.E.2d 730 (1988). In Crosby,
we held a limited "securing the premises" exception to the
warrant requirement is available to law enforcement when
necessary to preserve evidence and ensure their safety. The
criteria for applying this exception includes: the police must
(1) have probable cause to believe evidence is on the premises;
(2) believe delaying entry would create a substantial risk that
the evidence will be lost or destroyed; and (3) not create their
own exigencies. Id. at 201, 367 S.E.2d at 735. See Segura v.
United States, 468 U.S. 796 (1984).
"'[I]n determining whether . . . circumstances were
sufficient to overcome the presumption of unreasonableness and
justify a warrantless entry, the court must examine the
circumstances as they reasonably appeared to the law enforcement
officers on the scene [when the decision to enter was made].'"
Crosby, 6 Va. App. at 201, 367 S.E.2d at 735 (quoting Verez v.
Commonwealth, 230 Va. 405, 411, 337 S.E.2d 749, 753 (1985)).
Because only a "limited security check of the premises for
people who might destroy evidence is warranted" under this
exception, the circumstances justifying entry are not as
stringent as the "exigent circumstances" requirement. Id.
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Applying this standard to the instant case, the evidence
supports the trial court's finding of admissibility. The trial
court believed O'Connor's version of events.
[B]ased on what I found on both the trash
cans; activity I had seen when we pulled up,
the person flagging us down and the person
sitting outside of the house; the bag
corners in the trash can inside of the
house; the bags with the residue and the bag
corners in the rear trash can; the
statements by Ms. Whittaker that there
wasn't anybody else in the house and then
Mr. Brown telling me that there was somebody
else in the house; her answer about
firearms, I felt at that time I should go in
and make sure there was nobody in there with
a weapon or that was destroying the drugs.
His testimony provided probable cause to believe that drugs
were in the apartment; that there might be others in the
apartment with access to firearms and the ability to destroy the
evidence; and lastly, the police did nothing to create the
exigency.
Accordingly, we affirm appellant's convictions.
Affirmed.
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