COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bray
Argued at Richmond, Virginia
GEORGE EUGENE ROBINSON
MEMORANDUM OPINION * BY
v. Record No. 1754-94-3 JUDGE JAMES W. BENTON, JR.
MARCH 19, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
James G. Hunter, III (O'Keeffe & Spies, on
brief), for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
George Eugene Robinson was convicted of possession of
cocaine with intent to distribute in violation of Code § 18.2-248
and possession with intent to distribute of more than one-half
ounce but less than five pounds of marijuana in violation of Code
§ 18.2-248.1(a)(2). He contends the trial judge erred in failing
to suppress numerous items of evidence and in admitting a
certificate of analysis. We affirm the convictions.
SUPPRESSION HEARING
On appeal from a denial of a motion to suppress, "[t]he
burden is upon [Robinson] to show that [the trial judge's]
ruling, when the evidence is considered most favorably to the
Commonwealth, constituted reversible error." Fore v.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert.
denied, 449 U.S. 1017 (1980). The evidence at the hearing proved
Police Officer W. K. Dance applied to a magistrate for a warrant
to search a specific apartment in the City of Lynchburg. Officer
Dance's affidavit recited that drugs were in the apartment and
that the information contained in the affidavit was provided by a
confidential informant. The magistrate issued the warrant.
Shortly before the search warrant was executed, Robinson
arrived at the apartment. After the police entered to search the
apartment, they found Robinson sitting at the kitchen table and
forced him to lie on the floor. When Officer Dance arrived in
the kitchen Robinson was on the floor. Officer Dance testified
that he arrested Robinson after he saw a green plant material in
a ziplock bag hanging out of Robinson's coat pocket. During his
search of Robinson, Officer Dance recovered money, cocaine, razor
blades, keys, including a key to a motel room, and a pager.
Officer Dance did not give Miranda warnings to Robinson then
or at any time in the apartment. He testified that he told
Robinson "that he should not say anything until [he] got to the
station and signed an [advice] of rights form or until he talked
to a lawyer." He handcuffed Robinson and joined in the search of
the apartment.
As the officers searched the apartment, Robinson asked to
speak to Officer Dance in private. When Officer Dance took
Robinson into the bathroom to talk, Robinson became tearful and
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upset. He testified that Robinson became more upset when an
officer entered the room and reported that a drug dog had arrived
and was ready to go around a van that was parked outside the
apartment. Robinson asked to urinate. Officer Dance opened
Robinson's pants and assisted him.
During Robinson's discussion with Officer Dance, Officer
Dance questioned Robinson about the presence of cocaine in the
van. Robinson told him that cocaine and scales were under a seat
in the van. Officer Dance informed the other officer of
Robinson's statements. Officer Dance testified that the dog
alerted to the presence of drugs in the van before the police
entered and searched the van.
In further conversation, Robinson told Officer Dance that he
had cocaine in the motel room in his locked suitcase. After
Robinson signed a consent form for a search of the motel room,
the police went to the motel room and seized a suitcase from a
female who was standing outside the room. Officer Dance used one
of Robinson's keys to open the suitcase. He found cocaine,
marijuana, and money in the suitcase.
Officer Dance then went to the police station where Robinson
had been taken. He read Miranda warnings to Robinson for the
first time. Robinson signed a waiver of his rights and made
further statements.
At the suppression hearing, the Commonwealth conceded that
the statements Robinson made at the apartment were not admissible
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in the Commonwealth's case-in-chief. In ruling on the motion to
suppress, the trial judge upheld the validity of the search
warrant, ruled that the drugs in the van inevitably would have
been discovered, found that Robinson's consent to the search of
his motel room was free, voluntary, and intelligent, and ruled
that the statements Robinson made after receiving Miranda
warnings were admissible.
a. Search warrant
Relying principally upon Franks v. Delaware, 438 U.S. 154
(1978), Robinson contends that the search warrant was issued upon
information in the affidavit that Officer Dance knew or should
have known was false. In Franks, the Supreme Court held as
follows:
[W]here the defendant makes a substantial
preliminary showing that a false statement
knowingly and intentionally, or with reckless
disregard for the truth, was included by the
affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the
finding of probable cause, the Fourth
Amendment requires that a hearing be held at
the defendant's request. In the event that
at that hearing the allegation of perjury or
reckless disregard is established by the
defendant by a preponderance of the evidence,
and, with the affidavit's false material set
to one side, the affidavit's remaining
content is insufficient to establish probable
cause, the search warrant must be voided and
the fruits of the search excluded to the same
extent as if probable cause was lacking on
the face of the affidavit.
438 U.S. at 155-56.
The record establishes that the magistrate approved the
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warrant based upon a factually accurate affidavit. Although
Dance's affidavit did not disclose that the informant had a
criminal record or was paid by the police for information, a
search warrant application need not include all of the facts
known to the officer. United States v. Liberti, 616 F.2d 34, 37
(2nd Cir.), cert. denied, 446 U.S. 952 (1980). The omission of
information from an affidavit does not automatically invalidate a
search warrant. Id.
In the affidavit, Officer Dance represented that a
confidential, reliable informant familiar with cocaine saw
cocaine in the residence within twenty-four hours of the
affidavit. He stated that the informant had given him
information in the past that was corroborated by other informants
who have given information that led to cocaine possession arrests
and convictions. Although the recitations in the affidavit
concerning the informant were skimpy, the evidence in this record
failed to prove that the omission of more detailed information
concerning the informant was the result of "perjury or reckless
disregard" for the truth. Franks, 438 U.S. at 156.
Robinson also argues that the search warrant was issued
without probable cause. We disagree.
In making a probable cause determination,
"[t]he task of the issuing magistrate is
simply to make a practical, commonsense
decision, whether, given all the
circumstances set forth in the affidavit
before him, including the 'veracity' and
'basis of knowledge' of persons supplying
hearsay information, there is a fair
probability that contraband or evidence of a
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crime will be found in a particular place."
The duty of a reviewing court, on the other
hand, is "simply to ensure that the
magistrate had a 'substantial basis for . . .
conclud[ing]' that probable cause existed."
Thus, the magistrate's determination of
probable cause should be afforded great
deference on appellate review. Moreover,
even if the warrant was not issued upon
probable cause, evidence seized pursuant to
the warrant is nevertheless admissible if the
officer executing the warrant reasonably
believed that the warrant was valid.
Lanier v. Commonwealth, 10 Va. App. 541, 547, 394 S.E.2d 495, 499
(1990)(citations omitted). We conclude that when viewed under
the "totality of the circumstances," the magistrate had
substantial basis to conclude that probable cause existed.
Illinois v. Gates, 462 U.S. 213, 238 (1983).
b. Search of Robinson
Robinson argues that the record proved that he was illegally
seized when he was held and searched in the apartment. We
disagree. The principle is well established that when the police
conduct a search pursuant to a warrant, they may detain the
occupants of the place that is being searched. Michigan v.
Summers, 452 U.S. 692, 705 (1981).
Viewed in the light most favorable to the Commonwealth, the
party that prevailed at the suppression hearing, Commonwealth v.
Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991), the
evidence proved that Robinson was inside the apartment when the
police arrived with the search warrant. Robinson was being
lawfully detained during the search of the apartment when Officer
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Dance saw a bag of marijuana protruding from his pocket. The
arrest and search that followed the discovery of the marijuana
were lawful. See Wright v. Commonwealth, 222 Va. 188, 192-93,
278 S.E.2d 849, 852 (1981).
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c. Robinson's statements
The Commonwealth conceded at the suppression hearing that
the statements Robinson made in the apartment before he received
Miranda warnings were not admissible at trial. Consistent with
the Commonwealth's concession, the trial judge entered an order
barring the use of those statements.
Robinson contends, however, that the failure of the police
to give him Miranda warnings in the apartment, when coupled with
other police conduct, so tainted the process that statements he
later made after receiving Miranda warning were inadmissible. In
response, the Commonwealth argues that Oregon v. Elstad, 470 U.S.
298 (1985), plainly supports the trial judge's ruling that the
statements Robinson made after he received Miranda warnings were
admissible. We agree that Elstad controls the decision in this
case.
In Elstad, the Supreme Court reached the following
conclusion:
[A]bsent deliberately coercive or improper
tactics in obtaining the initial statement,
the mere fact that a suspect has made an
unwarned admission does not warrant a
presumption of compulsion. A subsequent
administration of Miranda warnings to a
suspect who has given a voluntary but
unwarned statement ordinarily should suffice
to remove the conditions that precluded
admission of the earlier statement. In such
circumstances, the finder of fact may
reasonably conclude that the suspect made a
rational and intelligent choice whether to
waive or invoke his rights.
470 U.S. at 314.
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The record does not establish, as Robinson contends, that
the police used coercion to gain statements from him in the
apartment. The evidence proved that after Robinson was arrested
he asked to speak to Officer Dance. He was visibly upset
concerning his predicament and lamented the impact of his arrest
on his family. Although the record contains no explanation for
Officer Dance's failure to give Miranda warnings at that time,
that failure, standing alone, did not amount to coercion. See
Elstad, 470 U.S. at 315-16.
Robinson argues that the police conduct was coercive because
they would not free his hands to allow him to urinate. Although
Robinson may have found Officer Dance's assistance unpleasant, we
find no basis to hold that this act coerced Robinson into
confessing. Robinson was not deprived of the opportunity to
perform his bodily function. Moreover, in view of the testimony
that Robinson became emotionally upset, we cannot say that the
officer was unreasonable in not removing Robinson's handcuffs.
The record supports the Commonwealth's argument that
Robinson became emotional because of his arrest for drugs and not
because of coercion or any overpowering police presence. Thus,
the trial judge did not err in finding no evidence of police
coercion and refusing to suppress the subsequent warned
statements because of Robinson's emotional state.
d. Search of the vehicle
Robinson argues that the search of his van violated his
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fourth amendment rights because the van was not within the
curtilage of the apartment. The evidence proved that a trained
dog "alerted" for drugs at the driver's side door of the van.
"[T]he action of the narcotics dog gave the police probable cause
to make the search." Brown v. Commonwealth, 15 Va. App. 1, 6,
421 S.E.2d 877, 881 (1992)(en banc). Furthermore, the evidence
proved that the dog was being prepared to go around the exterior
of the van. Thus, the evidence supports the trial judge's
finding that the police learned from a source independent of
Robinson's statements that cocaine was in the van.
e. Search of the luggage
Robinson informed the police that drugs could be found in
the suitcase in his motel room and signed a consent form for the
search of the room. "The question of whether a particular
'consent to a search was in fact voluntary or was the product of
duress or coercion, express or implied, is a question of fact to
be determined from the totality of all the circumstances.'" Deer
v. Commonwealth, 17 Va. App. 730, 735, 441 S.E.2d 33, 36 (1994)
(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)).
"The fact that [Robinson] has been lawfully seized at the time
consent is given does not in itself invalidate the consent."
Deer, 17 Va. App. at 735, 441 S.E.2d at 36. No evidence proved
that the police coerced Robinson into consenting to the search.
Robinson gave free and voluntary consent to search the room and
its contents.
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The evidence proved that a woman standing outside of the
motel room gave the police the suitcase and disclaimed ownership.
Officer Dance opened the suitcase and saw the drugs. On these
facts, the trial judge did not err in admitting evidence found in
the suitcase.
ADMISSION OF CERTIFICATE OF ANALYSIS
At trial, Robinson objected to the admission in evidence of
the certificate of analysis of the marijuana and cocaine. He
contends that the certificate of analysis was inadmissible on two
grounds.
Relying upon Hill v. Commonwealth, 17 Va. App. 480, 438
S.E.2d 296 (1993), he claims that under Code § 54.1-3401 the
laboratory should have excluded any seeds and stalks prior to
weighing the marijuana. Although the decision does address the
weighing of marijuana, the holding in Hill addressed the
sufficiency of evidence to prove the elements of the offense, not
the admissibility of evidence. Id. at 485, 438 S.E.2d at 299.
To the extent that the certificate of analysis proved the
identity of the substances seized from Robinson, it was relevant.
Admissibility of relevant evidence is within the sound
discretion of the trial judge. Blain v. Commonwealth, 7 Va. App.
10, 16, 371 S.E.2d 838, 842 (1988). The record does not suggest
that he abused that discretion in admitting the certificate to
prove the identity of the substances.
Robinson also claims that the trial judge erred in admitting
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the certificate because it related to drugs found outside of the
City of Lynchburg. The certificate of analysis listed the type
and weight of the drugs found on Robinson's person, in the
apartment, in the van, and in the suitcase. Although the police
seized the suitcase in Campbell County, and Robinson was
prosecuted in the City of Lynchburg, the rule of venue does not
require that all evidence in a particular case must come from
only one jurisdiction.
The Commonwealth had the burden to prove that Robinson
intended to distribute the cocaine and marijuana. The
introduction of the large amount of drugs and money found in the
suitcase tended to prove the hypothesis that Robinson intended to
distribute the drugs found in the apartment and van. See
Jennings v. Commonwealth, 20 Va. App. 9, 14-15, 454 S.E.2d 752,
754-55, aff'd en banc, 21 Va. App. 328, 464 S.E.2d 179 (1995).
The trial judge properly allowed the Commonwealth to introduce
evidence of all the drugs as tending to prove an essential
element of the crime.
For these reasons, we affirm the convictions.
Affirmed.
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