COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Humphreys and Senior Judge Coleman
Argued at Richmond, Virginia
JERMAINE HARRIS
MEMORANDUM OPINION * BY
v. Record No. 0687-00-2 JUDGE SAM W. COLEMAN III
JULY 10, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Lawrence Martin Cohn (AA, Affiliated
Attorneys, Inc., on briefs), for appellant.
John H. McLees, Jr., Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.
Jermaine Harris, appellant, appeals his convictions after a
bench trial of possession of cocaine with the intent to distribute
in violation of Code § 18.2-248, the simultaneous possession of a
firearm in violation of Code § 18.2-308.4, and possession of
marijuana in violation of Code § 18.2-250.1. He argues that the
trial court erred in denying his motion to suppress the evidence,
claiming that the search of his apartment was illegal because the
police (a) did not obtain a search warrant before entering the
curtilage of his residence, and (b) exceeded the scope of a lawful
protective sweep of the apartment. Appellant claims the evidence
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
collected by the police both before and after they obtained a
search warrant, and the statements he made to the police, should
have been suppressed. Appellant also contends the trial court
erred by sentencing him to the five year mandatory minimum under
Code § 18.2-308.4(B). He asserts the mandatory sentencing
provision of Code § 18.2-308.4(B) is invalid because (a) it is
unconstitutionally ambiguous, (b) it violates the separation of
powers doctrine, and (c) it violates his right to due process of
the law. For the reasons that follow, we disagree and affirm his
convictions.
BACKGROUND
Viewed in the light most favorable to the Commonwealth,
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,
48 (1991), the evidence proved that on October 21, 1999, Richmond
Police Officers Robert Barlow and Michael McCray received
information from an informant that the residents of a certain
apartment were selling drugs. The officers traveled to the
specified apartment located adjacent to a private street. They
knocked on the door, which was opened from within. The officers
saw appellant and his brother, Darrell Harris, standing in the
doorway and noticed a strong odor of marijuana coming from inside
the apartment. After the officers identified themselves and asked
permission to enter, Darrell Harris invited them inside. Barlow
informed appellant and Darrell Harris that they were investigating
a complaint of drug activity and asked the brothers if there were
- 2 -
any illegal drugs or weapons in the apartment. Both men denied
having drugs or weapons but after the officers mentioned the odor
of marijuana, appellant admitted that he had just smoked a "blunt"
(a hollowed-out cigar filled with marijuana).
The officers then asked permission to search the apartment.
Darrell Harris gave his consent, but appellant demanded that the
officers obtain a search warrant. Barlow and McCray moved the
brothers away from the front door into the living room and told
them that they would be held under investigative detention to
preserve the scene while Barlow went to obtain a warrant. As the
officers and the brothers entered the living room, Darrell Harris
began backing up towards a windowsill on which an object was lying
covered by a towel. McCray testified that he was concerned that
the object beneath the towel was a weapon. Therefore, McCray
pulled the towel from the windowsill. From beneath the towel, a
clear box fell to the floor. Without touching the box, the
officers could see inside and saw nine individually packaged small
white rocks that appeared to be cocaine.
The officers then handcuffed the brothers and advised them of
their Miranda rights. Barlow remained with the detainees as
McCray conducted a security check of the rest of the apartment.
On the staircase leading to the second floor, McCray found a small
plastic bag of the type often used to package drugs. Upstairs in
plain view he found a rifle, two shotguns and the marijuana blunt.
- 3 -
Barlow obtained a search warrant. In his affidavit for the
warrant, Barlow stated that among the material facts constituting
probable cause were the presence of the marijuana blunt, the
weapons, and packages of cocaine.
ANALYSIS
Suppression Motion
On appeal from a motion to suppress evidence, we review the
evidence in the light most favorable to the prevailing party.
See McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259,
261 (1997) (en banc). When reviewing a Fourth Amendment
suppression ruling, "we are bound by the trial court's findings
of historical fact unless 'plainly wrong' or without evidence to
support them." Id. at 198, 487 S.E.2d at 261 (citing Ornelas v.
United States, 517 U.S. 690, 699 (1996)). However, we consider
de novo whether those facts implicate the Fourth Amendment and,
if so, whether the officers unlawfully infringed upon an area
protected by the Fourth Amendment. See id.
Appellant contends Barlow and McCray, by entering the
curtilage of his apartment without first obtaining a warrant,
violated his Fourth Amendment right to be free from unreasonable
searches and seizures. Indeed, "[s]ubject to several well
established exceptions, the Fourth Amendment prohibits
warrantless searches of any place or thing in which a person has
a justifiable expectation of privacy." Shaver v. Commonwealth,
30 Va. App. 789, 795, 520 S.E.2d 393, 396 (1999). However, in
- 4 -
this case, the officers did not conduct a "search" when they
approached the apartment by its principal entrance and knocked on
the door. "Under the Fourth Amendment, a search is an invasion
into a space or area where a person has a reasonable expectation
of privacy in the 'person,' or the person's 'houses,' 'papers,'
or 'effects.'" Hughes v. Commonwealth, 31 Va. App. 447, 455,
524 S.E.2d 155, 159 (2000). To determine whether a citizen
"enjoys a reasonable expectation of privacy . . . we consider
whether he [or she] has exhibited an expectation of privacy in
the object and whether that expectation is one that 'society is
prepared to recognize as reasonable.'" Anderson v.
Commonwealth, 25 Va. App. 565, 576, 490 S.E.2d 274, 279 (1997)
(quoting Katz v. United States, 389 U.S. 347, 361 (1967)
(Harlan, J., concurring)), aff'd, 256 Va. 580, 507 S.E.2d 339
(1998). "[W]here private lands are exposed to observation by
members of the public who may legitimately come upon the
property, a citizen does not reasonably have an expectation of
privacy in areas that the passing public can observe." Shaver,
30 Va. App. at 795, 520 S.E.2d at 396.
Here, appellant had no reasonable expectation of privacy in
the front entrance to his apartment, an area "observable by
members of the public who might approach [his] residence, pass
by, or lawfully be upon [the] property." Id. Therefore, the
Fourth Amendment protections did not prohibit the officers from
- 5 -
approaching the apartment and knocking on the front door for the
purpose of investigating the allegation of drug activity.
Appellant also contends the officers illegally searched his
apartment after they entered the residence. The evidence proved
that the officers' initial contact with appellant and his
brother was consensual. Darrell Harris invited the officers
into the apartment.
[A] consensual encounter between the police
and a citizen becomes a seizure for Fourth
Amendment purposes "only if, in view of all
the circumstances surrounding the incident,
a reasonable person would have believed that
he was not free to leave." In order for a
seizure to occur, the police must restrain a
citizen's freedom of movement by the use of
physical force or show of authority.
Ford v. City of Newport News, 23 Va. App. 137, 141-42, 474
S.E.2d 848, 850 (1996) (citations omitted). See United States
v. Mendenhall, 446 U.S. 544, 554-55 (1980) (holding that Fourth
Amendment rights are not implicated by consensual encounters
between citizens and the police).
Once inside the apartment, the officers asked the brothers
whether they had drugs or weapons in the apartment. When they
denied having any contraband, Barlow noted that he could smell
marijuana. Appellant then admitted that he had smoked
marijuana. The officers asked permission to search the
premises. Darrell Harris agreed to the search but appellant
objected. The officers decided that McCray would detain the
brothers while Barlow obtained a search warrant. Based on the
- 6 -
totality of the circumstances, at the time the officers detained
appellant they had the reasonable suspicion necessary to conduct
an investigative detention.
An officer may detain a person in a "Terry
stop" if the officer possesses articulable
facts supporting a reasonable suspicion that
a person has committed a criminal offense,
is engaging in one, or is about to engage in
one. In determining whether an officer had
a particularized and objective basis for
suspecting a person of criminal activity, a
court must consider the totality of the
circumstances. The test for reasonable
suspicion under Terry is less stringent than
the test for probable cause. Reasonable
suspicion can be established with
information different in quantity or content
than that required to establish probable
cause. Reasonable suspicion differs from
probable cause "also in the sense that
reasonable suspicion can arise from
information that is less reliable than that
required to show probable cause."
Clarke v. Commonwealth, 32 Va. App. 286, 294-95, 527 S.E.2d 484,
488-89 (2000).
The officers moved the brothers from the foyer to the
living room. At that time, Darrell Harris began backing towards
the windowsill. "Although the authority to conduct a pat-down
search does not follow automatically from the authority to
effect an investigative stop, '[w]here the officer can "point to
particular facts from which he reasonably inferred that the
individual was armed and dangerous" [he is] justified in
searching for weapons.'" Harris v. Commonwealth, 33 Va. App.
325, 334, 533 S.E.2d 18, 22 (2000) (citation omitted).
- 7 -
"[F]risking for weapons based upon the exigency of protecting an
officer's safety is not limited to a pat-down of the suspect but
may extend to nearby vehicles . . . or rooms or premises to
which the suspect may retreat to secure a weapon." Washington
v. Commonwealth, 29 Va. App. 5, 14, 509 S.E.2d 512, 516 (1999)
(en banc). McCray testified that he was concerned that the
object beneath the towel was a weapon. "An officer is entitled
to view the circumstances confronting him in light of his
training and experience, and he may consider any suspicious
conduct of the suspected person." James v. Commonwealth, 22 Va.
App. 740, 745, 473 S.E.2d 90, 92 (1996) (citation omitted).
"The relationship between the distribution of controlled
substances . . . and the possession and use of dangerous weapons
is now well recognized." Logan v. Commonwealth, 19 Va. App.
437, 445, 452 S.E.2d 364, 369 (1994). McCray reasonably
inferred that the brother may have been going to obtain a
firearm or weapon. McCray's lawful search of the immediate area
surrounding the suspects revealed several packets of cocaine.
Barlow testified that the officers decided to determine
whether other people were in the apartment in order to protect
McCray's safety and preserve any evidence while Barlow had gone
to obtain a search warrant. McCray cursorily searched the
upstairs rooms of the apartment and located drug paraphernalia
and weapons. Once officers have entered a residence and
observed contraband inside, "in order to determine if anyone is
- 8 -
present who might destroy evidence or pose a threat to police
safety, police officers may conduct a limited security check in
those areas where individuals could hide." Crosby v.
Commonwealth, 6 Va. App. 193, 202, 367 S.E.2d 730, 735 (1988).
See also Commonwealth v. Thornton, 24 Va. App. 478, 486, 483
S.E.2d 487, 491 (1997).
Accordingly, because the officers lawfully searched the
apartment, the search warrant Barlow obtained was valid and not
based on evidence impermissibly acquired. Thus, the trial court
did not err by refusing to suppress the evidence.
Mandatory Sentence
Appellant challenges the imposition of the mandatory five
year sentence under Code § 18.2-308.4. He argues that because
it conflicts with other sentencing statutes, it is ambiguous;
that it violates the Virginia Constitution's separation of
powers doctrine; and that it violates constitutional guarantees
of due process by denying him an individualized sentencing
proceeding. "When testing the constitutional validity of
statutes, courts shall presume the statute to be valid.
Consequently, the burden to show the constitutional defect is on
the challenger." Gray v. Commonwealth, 30 Va. App. 725, 731-32,
519 S.E.2d 825, 828 (1999) (citations omitted).
In pertinent part, Code § 18.2-308.4 states:
Violation of this section shall constitute a
separate and distinct felony and any person
convicted thereof shall be guilty of a Class
- 9 -
6 felony, shall not be eligible for
probation, and shall be sentenced to a
minimum, mandatory term of imprisonment of
five years.
Appellant contends this mandatory minimum sentence conflicts
with the Class 6 felony sentencing range found in the Code.
Code § 18.2-10(f) provides that the punishment for a Class 6
felony is
a term of imprisonment of not less than one
year nor more than five years, or in the
discretion of the jury or the court trying
the case without a jury, confinement in jail
for not more than twelve months and a fine
of not more than $2,500, either or both.
"[W]hen one statute speaks to a subject in a general way and
another deals with a part of the same subject in a more specific
manner, the two should be harmonized, if possible, and where
they conflict, the latter prevails." Virginia Nat'l Bank v.
Harris, 220 Va. 336, 340, 257 S.E.2d 867, 870 (1979). Code
§ 18.2-308.4 imposes a mandatory minimum sentence that is within
the range provided by Code § 18.2-10. By describing the offense
as a Class 6 felony, Code § 18.2-308.4 limits the sentence that
the trial judge may impose. Additionally, the Class 6
designation also serves the purpose of precluding the imposition
of a fine because the mandatory jail term exceeds twelve months.
In In re: Commonwealth of Virginia, 229 Va. 159, 326 S.E.2d 695
(1985), the Supreme Court approved mandatory minimum sentences,
finding that "by prescribing a mandatory sentence, the General
Assembly has divested trial judges of all discretion respecting
- 10 -
punishment." Id. at 163, 326 S.E.2d at 697. The legislative
creation of this sentence does not violate the separation of
powers doctrine.
The concept of individualized sentencing in criminal cases
generally is not constitutionally required. Shifflett v.
Commonwealth, 26 Va. App. 254, 260, 494 S.E.2d 163, 166 (1997).
The trial court's imposition of the mandatory minimum sentence
in this non-capital case did not violate appellant's
constitutional rights. The trial court did not err in
sentencing appellant pursuant to Code § 18.2-308.4.
Therefore, we affirm appellant's convictions.
Affirmed.
- 11 -