COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Lemons and Senior Judge Cole
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 0318-99-2 JUDGE LARRY G. ELDER
AUGUST 3, 1999
JACKY RAY LANE
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H. C. Taylor, Judge
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
briefs), for appellant.
Bruce P. Ganey (Ganey & Laibstain, P.C., on
brief), for appellee.
Jacky Ray Lane (defendant) stands indicted for possession
of cocaine. The Commonwealth appeals a pretrial ruling granting
defendant's motion to suppress all evidence seized pursuant to a
search warrant on the ground that the seizure resulted from an
earlier illegal entry into defendant's home, which occurred when
police responded to a 911 call involving defendant's reported
drug overdose. On appeal, the Commonwealth contends the trial
court erroneously suppressed the evidence because the deputies'
warrantless entry of defendant's house was lawful and, even if
it was not, the evidence subsequently discovered resulted from a
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
valid search warrant obtained independently of any illegal
entry. For the reasons that follow, we reverse the trial
court's granting of defendant's suppression motion and remand to
the trial court for further proceedings consistent with this
opinion. 1
At a hearing on a defendant's motion to suppress, the
Commonwealth has the burden of proving that a warrantless search
or seizure did not violate the defendant's Fourth Amendment
rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380
S.E.2d 656, 659 (1989). On appeal, we view the evidence in the
light most favorable to the prevailing party, here the
defendant, granting to it all reasonable inferences fairly
deducible therefrom. See Commonwealth v. Grimstead, 12 Va. App.
1066, 1067, 407 S.E.2d 47, 48 (1991). "[W]e 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 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
1
After granting the motion to suppress, the trial court
dismissed the indictment. However, it lacked authority to
dismiss at that time. See Code § 19.2-398 (permitting
Commonwealth to petition this Court for appeal of "[a]n order of
a circuit court prohibiting the use of certain evidence at trial
on the grounds such evidence was obtained in violation of
[certain constitutional] provisions prohibiting illegal searches
and seizures and protecting rights against self-incrimination,
provided the Commonwealth certifies the evidence is essential to
the prosecution").
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Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657,
1663, 134 L. Ed. 2d 911 (1996)). However, we review de novo the
trial court's application of defined legal standards such as
probable cause and reasonable suspicion to the particular facts
of the case. See Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663.
The Fourth Amendment protects people from unreasonable
searches and seizures. U.S. Const. amend. IV. "[T]he Fourth
Amendment has drawn a firm line at the entrance to the house.
Absent exigent circumstances, that threshold may not reasonably
be crossed without a warrant." See Payton v. New York, 445 U.S.
573, 590, 100 S. Ct. 1371, 1382, 63 L. Ed. 2d 639 (1980).
The "exclusionary rule" prevents evidence obtained in
violation of one's Fourth Amendment rights from being admitted
into evidence against him in a criminal prosecution. See
Commonwealth v. Ealy, 12 Va. App. 744, 750, 407 S.E.2d 681, 685
(1991). The purpose of the exclusionary rule is "'to deter
police misconduct.'" Johnson v. Commonwealth, 21 Va. App. 172,
175, 462 S.E.2d 907, 909 (1995) (citation omitted). Therefore,
the rule does not apply unless the evidence sought to be
excluded was "'discovered as a result of a warrantless crossing
[into the place searched].'" Id. at 752, 407 S.E.2d at 686
(quoting Reynolds v. Commonwealth, 9 Va. App. 430, 435-36, 388
S.E.2d 659, 663 (1990)).
Generally, the exclusionary rule bars the admission of
"evidence seized and information acquired during an unlawful
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search or seizure [and] also . . . derivative evidence
discovered because of the unlawful act." Warlick v.
Commonwealth, 215 Va. 263, 265, 208 S.E.2d 746, 748 (1974). In
determining whether the evidence is derivative and therefore
barred as "fruit of the poisonous tree," the question is
"'whether[,] granting establishment of the primary illegality,
the evidence to which instant objection is made has been come at
by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary
taint.'" Wong Sun v. United States, 371 U.S. 471, 488, 83
S. Ct. 407, 417, 9 L. Ed. 2d 441 (1963) (citation omitted).
Evidence is obtained by means "sufficiently distinguishable" to
be admissible despite illegality if it is "evidence attributed
to an independent source" or "evidence where the connection has
become so attenuated as to dissipate the taint." Warlick, 215
Va. at 266, 208 S.E.2d at 748.
[These] limitations share the same rationale
and are commonly applied together. For
example, a search warrant . . . obtained
subsequent to an unlawful search may be an
independent source if such warrant . . . is
not obtained by exploitation of the unlawful
search or is so attenuated as to dissipate
the taint of the unlawful search.
Ealy, 12 Va. App. at 755, 407 S.E.2d at 688. Where the illegal
activity of the police did not lead to discovery of evidence a
party seeks to exclude, the exclusion of that evidence does not
meet the purpose of the exclusionary rule, which is to deter
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future unlawful police conduct. See Johnson, 21 Va. App. at
175, 462 S.E.2d at 909.
Assuming without deciding that the deputies' entry of
defendant's home after defendant had left the house by ambulance
and prior to issuance of the search warrant violated the Fourth
Amendment, no legally significant nexus exists between the
initial warrantless entry and the subsequent entry pursuant to
the valid search warrant. 2 The deputies conducted no formal
search at the time of the first entry, and the entry yielded no
tangible evidence used to obtain the warrant. Although
defendant's girlfriend, Erica Woodall, told the deputies while
inside the residence with them that she and defendant had used
cocaine in the residence earlier in the day, information which
was included in the affidavit supporting the search warrant, no
evidence exists that the deputies' entry or Woodall's presence
in the home had any causal connection to her giving the deputies
this information.
Any nexus was temporal only. While still outside the
residence, Woodall confirmed to the deputies that defendant had
been using cocaine that day. While still outside, the deputies
told Woodall she could not accompany defendant to the hospital
and made clear their intention to question her about the
circumstances surrounding defendant's purported cocaine
2
Defendant posed no separate challenge to the validity of
the warrant.
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overdose. Finally, the record contains no indication that the
location of the questioning had any impact on the information
Woodall provided. The questioning of Woodall inside the house
did not amount to an exploitation of the unlawful entry.
Therefore, excluding evidence found pursuant to the search
warrant in the absence of evidence of a nexus between the
alleged illegal entry and issuance of the warrant would not
achieve the purpose of deterring future police misconduct.
Accordingly, the connection between the initial entry and
Woodall's statements while inside was sufficiently "attenuated
as to dissipate the taint" and, in essence, resulted from an
independent source. 3
3
We reject defendant's contention that Rule 5A:18 prevents
the Commonwealth from raising this argument on appeal. Under
that rule, "[n]o ruling of the trial court . . . will be
considered as a basis for reversal unless the objection was
stated together with the grounds therefor at the time of the
ruling, except for good cause shown or to enable the Court of
Appeals to attain the ends of justice." However, as long as the
issue was properly preserved, an appellate court shall decide
the issue according to controlling legal principles. See, e.g.,
Lash v. County of Henrico, 14 Va. App. 926, 929, 421 S.E.2d 851,
853 (1992) (en banc).
Here, the Commonwealth argued to the trial court that the
evidence supporting issuance of the warrant came from the 911
call and the statements of Woodall rather than from any
information gained from their entry into defendant's residence
and that the officers obtained the warrant before conducting the
search which yielded the cocaine. Therefore, the Commonwealth's
argument at trial preserved for appeal its argument that the
cocaine was discovered pursuant to an independent source and
that any taint resulting from the entry dissipated prior to
discovery of the cocaine.
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For these reasons, we hold that the cocaine defendant was
charged with possessing was not seized in violation of the
Fourth Amendment. Therefore, we reverse the ruling of the trial
court and remand for a reinstatement of the charge and further
proceedings consistent with this opinion.
Reversed and remanded.
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Commonwealth of Virginia v. Jacky Ray Lane
Combined Opinion