Cherry v. Commonwealth

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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