McNair v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis,
Elder, Bray, Annunziata, Bumgardner, Lemons and Frank
Argued at Richmond, Virginia

JEFFERY McNAIR, S/K/A
JEFFREY McNAIR
OPINION BY
v. Record No. 2717-97-2 JUDGE SAM W. COLEMAN III
NOVEMBER 30, 1999
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Oliver A. Pollard, Jr., Judge

Mary Katherine Martin, Senior Assistant
Public Defender (Office of the Public
Defender, on brief), for appellant.

Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

Jeffery McNair was convicted of possession of cocaine in

violation of Code § 18.2-250. He contends the trial court erred

by denying his motion to suppress evidence obtained during a

warrantless search of his residence following an investigation of

a reported robbery. He also contends the evidence is insufficient

to support the conviction.

A divided panel of this Court affirmed the trial judge's

rulings, see McNair v. Commonwealth, 29 Va. App. 559, 513 S.E.2d

866 (1999), and we granted a rehearing en banc. Upon rehearing en

banc, we hold that the trial court did not err by denying the
motion to suppress the evidence, but we find the evidence

insufficient to support the conviction. Accordingly, we vacate

the panel decision, reverse McNair's conviction for possession of

cocaine, and dismiss the charge.

BACKGROUND

Officer William Hannum responded to a report that a robbery

was in progress at McNair's apartment. McNair, who was "very

upset," told Officer Hannum that he had just been robbed and that

he believed the robbers were still inside his apartment. Officer

Hannum remained with McNair until two additional police officers

arrived. Officer Hannum and the two officers then searched

McNair's apartment, "mainly looking for anyone who might have done

the robbery . . . or any other individuals that might need . . .

assistance." During their search of the two-level apartment,

which "was in somewhat of a state of disarray, of clutter," the

officers entered McNair's second-floor bedroom. Finding no one in

the apartment, the officers returned to the first-floor living

room and discussed the robbery with McNair.

Detective Willie Wells arrived while Hannum and the other

officers were in the living room talking to McNair. At that time,

an emergency crew was removing a "victim" from the apartment.

Detective Wells asked Hannum whether he or the other officers had

looked for clues to the robbery. Without speaking to McNair about

the robbery, Wells then went upstairs "specifically looking for

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evidence that the robbers might have dropped or left behind." In

McNair's bedroom, which was in disarray, the detective noticed a

glass test tube lying in plain view on the floor in the doorway to

a closet. The test tube was intact, contained a white substance,

and contained moisture on the inside. The detective testified

that he recognized the tube as a type that "is commonly used to

cook up small amounts of crack cocaine." When the detective asked

McNair about the test tube, McNair replied that the robbers must

have dropped it when they were in his bedroom. The white

substance in the test tube proved to be cocaine. McNair was

charged with possession of the cocaine.

ANALYSIS

Motion to Suppress

McNair argues that the test tube was seized by the police

during an unlawful search of his residence and that the trial

court erred by refusing to suppress the test tube and cocaine as

evidence. Conceding that exigent circumstances existed when the

officers initially arrived at his apartment, which would have

justified their searching his apartment without a warrant, McNair

argues that the exigency ceased to exist when the officers

determined that the robbers were no longer present and no one

needed emergency assistance. McNair argues that Detective Wells'

subsequent warrantless search of the apartment was unreasonable

and, therefore, violated the Fourth Amendment.

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 When we review a trial court's denial of a motion to

suppress, "[w]e view the evidence in a light most favorable to

. . . the prevailing party below, and we grant all reasonable

inferences fairly deducible from that evidence." Commonwealth v.

Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). In

our analysis, "we are bound by the trial court's findings of

historical fact unless 'plainly wrong' or without evidence to

support them." McGee v. Commonwealth, 25 Va. App. 193, 198, 487

S.E.2d 259, 261 (1997) (en banc) (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.

Subject 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. See

Mincey v. Arizona, 437 U.S. 385, 390 (1978). However, searches

made by the police pursuant to a valid consent do not implicate

the Fourth Amendment. See Schneckloth v. Bustamonte, 412 U.S.

218, 222 (1973); Iglesias v. Commonwealth, 7 Va. App. 93, 99, 372

S.E.2d 170, 173 (1988) (en banc). When relying upon consent as

the justification for a search, the Commonwealth must prove, given

the totality of the circumstances, that the consent was freely and

voluntarily given. See Bumper v. North Carolina, 391 U.S. 543,

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548 (1968); Hairston v. Commonwealth, 216 Va. 387, 388, 219 S.E.2d

668, 669 (1975); Commonwealth v. Rice, 28 Va. App. 374, 378, 504

S.E.2d 877, 879 (1998). "A consensual search is reasonable if the

search is within the scope of the consent given." Grinton v.

Commonwealth, 14 Va. App. 846, 850-51, 419 S.E.2d 860, 862 (1992).

"The standard for measuring the scope of a suspect's consent under

the Fourth Amendment is that of 'objective' reasonableness -- what

would the typical reasonable person have understood by the

exchange between the officer and the suspect?" Florida v. Jimeno,

500 U.S. 248, 251 (1991). While conducting a consensual search,

the police may lawfully seize an item that they discover in plain

view if they "have probable cause to believe that the item in

question is evidence of a crime or contraband." Conway v.

Commonwealth, 12 Va. App. 711, 721, 407 S.E.2d 310, 316 (1991) (en

banc).

Here, the officers responded to a report that a robbery was

in progress at McNair's residence. McNair met the responding

officers and informed them that the robbers could still be in his

apartment. When an initial search of the residence disclosed no

suspects, McNair voluntarily assisted the officers by answering

questions while standing in the living room of his apartment. At

no point did he attempt to restrict or terminate the officers'

investigation of his residence, which he had requested.

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 When Detective Wells arrived, he asked Officer Hannum whether

the officers had searched for clues to the robbery. The detective

then went upstairs. McNair did not object. From this evidence,

the trial court reasonably inferred that McNair (1) consented to

the officers' presence in his apartment for the purpose of

investigating the robbery, (2) observed the detective go upstairs,

and (3) knew that the detective was searching for clues to the

robbery. McNair's failure to withdraw his consent is evidence

that he consented to Detective Wells' search. See Lawrence v.

Commonwealth, 17 Va. App. 140, 146, 435 S.E.2d 591, 594-95 (1993),

aff'd, 247 Va. 339, 443 S.E.2d 160 (1994); see also Grinton, 14

Va. App. at 851, 419 S.E.2d at 863 ("[t]he scope of a search may

be further defined during the course of the search by the passive

acquiescence of the person whose property is being searched").

McNair argues that the Supreme Court's ruling in Thompson v.

Louisiana, 469 U.S. 17 (1984) (per curiam), is controlling. We

disagree. Thompson dealt with the government's contention that a

"crime scene" exception exists to the warrant requirement. In

Thompson, the petitioner shot her husband and then attempted to

kill herself by taking a large quantity of pills. Before she lost

consciousness, she called her daughter, requesting help. The

daughter contacted the police. The responding officers searched

the petitioner's residence, looking for additional victims or

suspects. See id. at 18. The search uncovered no evidence.

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Thirty-five minutes after transporting the petitioner to the

hospital and after securing the scene, two homicide investigators

arrived and without obtaining a warrant, searched the residence

for two hours for the purpose of securing evidence pertaining to

the murder-attempted suicide investigation. See id. During this

search, the investigators found items that were admitted at trial

as evidence against the petitioner. See id. at 18-19. The

Supreme Court reversed the murder conviction and disagreed with

the Louisiana Supreme Court's finding that the petitioner, by

making the call to her daughter for assistance, had a "diminished

expectation of privacy" in her home. Id. at 22. The Court

specifically noted that no one had given consent to search the

residence. See id. at 19. The Court stated that the

"[p]etitioner's call for help can hardly be seen as an invitation

. . . that would have converted her home into the sort of public

place for which no warrant to search would be necessary." Id. at

22. See also, Mincey, 437 U.S. 385 (no crime scene exception to

the warrant requirement exists), and Flippo v. West Virginia, ___

U.S. ___ (No. 98-8770 Oct. 18, 1999).

McNair's reliance on Thompson is misplaced, because here the

police had McNair's consent to search for evidence of criminal

activity. In Thompson, the Court specifically explained that it

"express[ed] no opinion as to whether the search at issue . . .

might [have] be[en] justified as consensual." 469 U.S. at 23.

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Here, McNair contacted the police reporting a robbery at his

residence and that the robbers may still be in the home. Either

expressly or implicitly, McNair consented to the officers

searching his house in order to investigate the reported crime.

Conversely, in Thompson, the defendant's telephone call to her

daughter in no way could be construed as implied consent by

Thompson to allow the police inside her residence. Furthermore,

the scope of the search in Thompson is distinguishable from the

search in the instant case. In Thompson, the warrantless search

began thirty-five minutes after the scene had been secured and

lasted two hours. The officers' search was not limited to a

cursory inspection of whether an emergency situation existed, but

rather, involved an extensive search which included opening

Christmas card envelopes and reading discarded, torn paper in the

trash can. Here, Detective Wells testified that upon entering

McNair's bedroom to continue the robbery investigation that McNair

had requested, he discovered the test tube in plain view.

Thompson, therefore, does not control our decision.

Once valid consent is given, the police may conduct a

reasonable search of a residence until the consent is

unequivocally withdrawn. See Lawrence, 17 Va. App. at 146, 435

S.E.2d at 595 (recognizing that withdrawal of consent requires an

"unequivocal act or statement of withdrawal"). Here, an officer

reasonably could have believed that, in responding to a report of

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a robbery in progress, the scope of the consent to search

permitted a search for clues to the crime, not just for the

presence of robbers. Consequently, any items of illegal

contraband discovered in plain view during the consensual search

may be seized by the officers and may be used as evidence at

trial. See Jimeno, 500 U.S. at 251 (stating that "[t]he scope of

a search is generally defined by its expressed object"). The

trial court, therefore, did not err by denying McNair's motion to

suppress the seized cocaine.

Sufficiency

Next, McNair argues that the evidence was insufficient to

prove he possessed the cocaine in the test tube found in his

bedroom. He argues that the evidence contained no direct proof of

possession by him and that the circumstantial evidence did not

exclude the reasonable hypothesis that the robbers left the test

tube in his closet. We agree.

"To establish possession of a controlled substance, it

generally is necessary to show that the defendant was aware of the

presence and character of the particular substance and was

intentionally and consciously in possession of it." Gillis v.

Commonwealth, 215 Va. 298, 301, 208 S.E.2d 768, 771 (1974).

Possession may be actual or constructive. Constructive possession

may be proved through evidence demonstrating "that the accused was

aware of both the presence and character of the substance and that

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it was subject to his or her dominion and control." Wymer v.

Commonwealth, 12 Va. App. 294, 300, 403 S.E.2d 702, 706 (1991).

"Suspicious circumstances, including proximity to a controlled

drug, are insufficient to support a conviction." Behrens v.

Commonwealth, 3 Va. App. 131, 135, 348 S.E.2d 430, 432 (1986).

"To support a conviction based upon constructive possession, 'the

Commonwealth must point to evidence of acts, statements, or

conduct of the accused or other facts or circumstances which tend

to show that the defendant was aware of both the presence and

character of the substance and that it was subject to his dominion

and control.'" Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d

844, 845 (1986) (quoting Powers v. Commonwealth, 227 Va. 474, 476,

316 S.E.2d 739, 740 (1984)). Circumstantial evidence is

sufficient to prove guilt beyond a reasonable doubt so long as

"all necessary circumstances proved . . . [are] consistent with

guilt and inconsistent with innocence and must exclude every

reasonable hypothesis of innocence." Bishop v. Commonwealth, 227

Va. 164, 169, 313 S.E.2d 390, 393 (1984). The Commonwealth "need

not affirmatively disprove all theories which might negate the

conclusion that the defendant . . . [possessed the cocaine], but

the conviction will be sustained if the evidence excludes every

reasonable hypothesis of innocence." Higginbotham v.

Commonwealth, 216 Va. 349, 353, 218 S.E.2d 534, 537 (1975).

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 When an appellant challenges the sufficiency of the evidence,

we view the evidence "in the light most favorable to the

Commonwealth and give it all reasonable inferences fairly

deducible therefrom." Id. at 352, 218 S.E.2d at 537. The

Commonwealth's evidence failed to prove acts, words, or conduct by

McNair or other circumstances from which the trial judge could

infer beyond a reasonable doubt that McNair knowingly and

intentionally possessed the cocaine found in the test tube in his

second-floor bedroom. See Hairston v. Commonwealth, 5 Va. App.

183, 186, 360 S.E.2d 893, 895 (1987). McNair contacted the police

after a robbery purportedly occurred in his residence. On the

second floor, where the robber or robbers reportedly had been, the

police observed that McNair's bedroom was in disarray. According

to the detective, the disarray of the room was consistent with one

or more persons having searched it for something. When asked

about the test tube, McNair expressed no awareness of it and told

the police that the robbers must have left it in the apartment.

He denied any knowledge of the test tube.

Although the detective testified that he had found test tubes

similar to the one found in McNair's closet when executing search

warrants for drug distribution, no evidence negated the hypothesis

that the robbers left or dropped the test tube as they searched

the room. The police found no smoking devices in the residence or

on McNair and found no other drugs or drug paraphernalia related

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to cocaine. See Behrens, 3 Va. App. at 135, 348 S.E.2d at 432.

Although the test tube containing cocaine was found in McNair's

bedroom, no evidence other than its location tied it to McNair and

the disarray in the room and report of a robbery support the view

that individuals other than McNair had most recently been in the

bedroom. No evidence proved McNair was in the bedroom at any time

after the robbers left and before the police discovered the test

tube. The fact that the detective found moisture on the inside of

the test tube, a circumstance consistent with cooking crack

cocaine, did not tend to prove that McNair "cooked the cocaine"

rather than that the robbers had done so either before arriving or

while at McNair's apartment. Although the record contains few

details about the alleged robbery, the disarray in the apartment

and the fact that a victim was removed support the conclusion that

something untoward occurred prior to the officers' arrival.

Apparently, McNair had made no complaint about a forced entry or

burglary. Although the circumstances are suspicious, from this

evidence, it is just as likely that the test tube containing

cocaine had been used and left there by the robbers or by the

"victim" as by McNair and that he had exercised no dominion and

control over it. Because the circumstantial evidence does not

exclude other reasonable hypotheses, as supported by the evidence,

that the robbers or someone other than the defendant left the test

tube behind, the evidence is insufficient to support the

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conviction. See Drew, 230 Va. at 473-74, 338 S.E.2d at 845-46;

Garland v. Commonwealth, 225 Va. 182, 300 S.E.2d 783 (1983);

Burchette v. Commonwealth, 15 Va. App. 432, 425 S.E.2d 81 (1992);

Behrens, 3 Va. App. 136-37, 348 S.E.2d at 433-34.

CONCLUSION

In summary, we find that the detective's search of McNair's

residence was made with McNair's consent, and we affirm the trial

court's refusal to suppress the test tube and cocaine as evidence.

Additionally, we find the evidence is insufficient to support the

conviction for possession of cocaine. We, therefore, vacate the

panel decision, reverse McNair's conviction, and dismiss the

charge.

Reversed and dismissed.

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Benton, J., concurring, in part, and dissenting, in part.

I concur in the portions of the opinion styled Background

and Sufficiency, and I concur in the judgment reversing the

conviction and dismissing the indictment. I dissent, however,

from the conclusion that Jeffrey McNair consented to Detective

Wells' search of McNair's bedroom for clues to the robbery.

"The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated." U.S. Const. amend. IV. "In a

long line of cases, [the United States Supreme] Court has

stressed that 'searches conducted outside the judicial process,

without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment -- subject only to a few

specifically established and well delineated exceptions.'"

Thompson v. Louisiana, 469 U.S. 17, 19-20 (1984) (citation

omitted). "The landmark case of Mincey v. Arizona, 437 U.S. 385

(1978) established that no 'crime scene exception' to the

warrant requirement exists." Hunter v. Commonwealth, 8 Va. App.

81, 84, 378 S.E.2d 634, 635 (1989). See also Thompson, 469 U.S.

at 21 (reaffirming the Mincey holding that creating a crime

scene exception for a warrantless search "'is inconsistent with

the Fourth and Fourteenth Amendments'").

In Thompson, the record established that the petitioner

shot her husband and then attempted to kill herself by taking a

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large quantity of pills. Before she lost consciousness,

however, the petitioner called her daughter, who then called the

police. The responding officers searched petitioner's residence

for additional victims or suspects. See 469 U.S. at 18. This

search uncovered no evidence. Later, two homicide investigators

arrived and searched the residence for two hours for the purpose

of finding evidence. During this search, the investigators

found items which were later admitted into evidence against the

petitioner at trial. See id. at 18-19. The Supreme Court, in a

per curiam opinion, reversed the conviction and rejected the

government's contention that the petitioner, by making the call

for assistance, had a "diminished expectation of privacy." Id.

at 22. Specifically, the Court stated that the "[p]etitioner's

call for help can hardly be seen as an invitation . . . that

would have converted her home into the sort of public place for

which no warrant to search would be necessary." Id.

In this case, the evidence proved that when the officers

initially arrived at the "set of apartments" where McNair lived,

they "met . . . McNair right at the entrance of the apartments."

After McNair said "he thought that the individuals who had

[committed] the robbery were still in the apartment," the

officers "went down to the apartment." The officers entered

McNair's apartment and searched the apartment for possible

robbers and victims. McNair's suppression argument would lack

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merit had the cocaine been recovered during this initial search.

See Thompson, 469 U.S. at 22. However, the test tube containing

cocaine was not found during the initial search for robbers and

victims. Instead, a detective who arrived sometime later, when

the exigent circumstances no longer existed, found the test tube

during a search undertaken specifically for the purpose of

finding evidence. See id. at 21-22.

In denying the motion to suppress, the trial judge made the

following findings:

In this case Mr. McNair called the police
relative to a robbery. They go there.
They're trying to make sure the place is
safe. [The] . . . officer in question,
[Detective] Wells, was told the robbery had
involved the bedroom. He went to the
bedroom and looked for clues. McNair is in
the house. In plain view [, Detective
Wells] sees this in the closet.

I don't think this is the same pattern as
your cases. So I'll overrule your motion.

The judge did not find that McNair consented to a search.

The trial judge found, instead, that the entry was made "to make

sure the place [was] safe." Under well established rules, such

a search has limited scope.

We should emphasize that . . . a protective
sweep, aimed at protecting the arresting
officers, if justified by the circumstances,
is nevertheless not a full search of the
premises, but may extend only to a cursory
inspection of those spaces where a person
may be found. The sweep lasts no longer
than is necessary to dispel the reasonable
suspicion of danger and in any event no

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 longer than it takes to complete the arrest
and depart the premises.

Maryland v. Buie, 494 U.S. 325, 335-36 (1990) (footnote

omitted).

When the officers initially searched the residence for

victims and the robbers, that warrantless search was a

protective activity that was "'strictly circumscribed by the

exigencies which justif[ied] its initiation.'" Mincey, 437 U.S.

at 393. See also Arizona v. Hicks, 480 U.S. 321, 325 (1987)

(noting that the officers "taking action, unrelated to the

objectives of the authorized intrusion, which exposed to view

concealed portions of the apartment or its contents, did produce

a new invasion of respondent's privacy unjustified by the

exigent circumstance that validated the entry"). The officers

who initially made the protective search found no robbery

suspects and arranged for an ambulance to remove from the

apartment a person who needed assistance. Thus, well before the

detective arrived, the police officers had assuaged their safety

concerns during their initial search for victims and robbers.

As in Thompson, the following circumstance is applicable:

Petitioner's attempt to get . . . assistance
does not evidence a diminished expectation
of privacy on [his] part. To be sure, this
action would have justified the authorities
in seizing evidence under the plain-view
doctrine while they were in petitioner's
house to offer . . . assistance. In
addition, the same doctrine may justify
seizure of evidence obtained in the limited

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 "victim-or-suspect" search discussed in
Mincey. However, the evidence at issue here
was not discovered in plain view . . .
during the "victim-or-suspect" search that
had been completed by the time [the
detective] arrived.

469 U.S. at 22. The exigency clearly had ended because "[a]ll

the persons in [McNair's] apartment had been located before the

investigating [detective] arrived there and began [his] search."

Mincey, 437 U.S. at 393.

In a recent per curiam decision, the Supreme Court again

held, on facts similar to this case, that the rule announced in

Mincey strictly limits the scope of a warrantless "crime scene"

search. See Flippo v. West Virginia, ___ U.S. ___ (No. 98-8770,

Oct. 18, 1999). The facts in Flippo are as follows:

One night in 1996, [Flippo] and his wife
were vacationing at a cabin in a state park.
After [Flippo] called 911 to report that
they had been attacked, the police arrived
to find [Flippo] waiting outside the cabin,
with injuries to his head and legs. After
questioning him, an officer entered the
building and found the body of [Flippo's]
wife, with fatal head wounds. The officers
closed off the area, took [Flippo] to the
hospital, and searched the exterior and
environs of the cabin for footprints or
signs of forced entry. When a police
photographer arrived at about 5:30 a.m., the
officers reentered the building and
proceeded to "process the crime scene."
. . . According to the trial court, "[a]t
the crime scene, the investigating officers
found on a table in Cabin 13, among other
things, a briefcase, which they, in the
ordinary course of investigating a homicide,
opened, wherein they found and seized
various photographs and negatives."

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Id. at ___. Relying on Mincey and Thompson, the Supreme Court

reversed the trial judge's denial of Flippo's motion to

suppress. The Court again "noted that police may make

warrantless entries onto premises if they reasonably believe a

person is in need of immediate aid and may make prompt

warrantless searches of a homicide scene for possible other

victims or a killer on the premises . . . but . . . rejected any

general 'murder scene exception' as 'inconsistent with the

Fourth and Fourteenth Amendments.'" Flippo, ___ U.S. at ___.

On this appeal, the Commonwealth attempts to justify the

search of McNair's apartment based on consent. However, the

trial judge made no finding that the search was based on

McNair's consent. The principle "is well settled that the

burden is on the Commonwealth to establish an exception to the

warrant requirement." Walls v. Commonwealth, 2 Va. App. 639,

645, 347 S.E.2d 175, 178 (1986). "'Consent to a search . . .

must be unequivocal, specific and intelligently given . . . and

it is not lightly to be inferred.'" Elliotte v. Commonwealth, 7

Va. App. 234, 239, 372 S.E.2d 416, 419 (1988) (citation

omitted). Thus, whenever the Commonwealth alleges that a search

was consensual, "[t]he [Commonwealth] . . . bears the burden of

establishing consent and this burden is heavier where the

alleged consent is based on an implication." Walls, 2 Va. App.

at 645, 347 S.E.2d at 178. The Commonwealth's "burden . . . is

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not satisfied by showing a mere submission to a claim of lawful

authority." Florida v. Royer, 460 U.S. 491, 497 (1983); see

also Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968).

The trial judge's failure to find that the search of

McNair's apartment was based on consent should dispose of the

Commonwealth's claim. Although McNair informed the initial

responding officers that the robbers might still be in his

apartment, no evidence proved that he consented to a search.

Simply put, there was no consent.

Even if McNair may be deemed to have tacitly consented to

those officers entering his apartment for the purpose of

removing the robbers and securing the premises, a proposition

the majority assumes without the benefit of a finding by the

trial judge, to assume further that McNair consented to having

his residence searched a second time for clues, after the search

for the robbers and victims had terminated, would grant the

government power above and beyond that which is constitutionally

permitted. A search beyond the scope of the consent given is an

unreasonable search. See Bolda v. Commonwealth, 15 Va. App.

315, 319, 423 S.E.2d 204, 207 (1992). Moreover, the Supreme

Court has ruled that "[t]he scope of a search is generally

defined by its expressed object." Florida v. Jimeno, 500 U.S.

248, 251 (1991). By indicating his fear that the robbers might

still be in his apartment, McNair only sought to assist the

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police in their search for the robbers. When the officers

completed the search and found no robbers, they had exhausted

the scope of their authority to search. "The government may not

exceed the boundaries of the consent, and any evidence gathered

beyond those boundaries must be excluded." United States v.

Martinez, 949 F.2d 1117, 1119 (11th Cir. 1992).

The undisputed evidence proved the detective did not ask

for or receive McNair's consent to search the apartment for

evidence. The detective asked the officers who had first

searched the apartment whether they had looked for "clues to the

robbery scene." The detective testified that he "didn't

directly speak with [McNair] in regards to the robbery." When

he went upstairs to make a further search, he "was just looking

at the scene as a robbery scene." Cf. Mincey, 437 U.S. at 395

(holding that a warrantless search conducted pursuant to a crime

"scene exception . . . is inconsistent with the Fourth and

Fourteenth Amendments"). This evidence clearly established that

the detective's search was unlawful because it was based on

neither lawfully obtained consent nor a search warrant. See

Thompson, 469 U.S. at 22-23. Thus, the search was an

unreasonable violation of McNair's privacy interest.

Furthermore, no evidence proved that McNair was aware that

the detective intended to search the apartment. Although the

evidence proved the detective asked the other officer whether

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the residence had been searched, the record fails to indicate

that McNair heard the question, knew that the detective intended

to go upstairs, or was aware that the detective went upstairs.

Thus, the evidence does not prove either McNair's knowledge of

or acquiescence in the detective's search. Moreover,

acquiescence, without more, is insufficient to prove consent.

See Crosby v. Commonwealth, 6 Va. App. 193, 199, 367 S.E.2d 730,

734 (1988). McNair never consented to a search of his

residence. Consent could only be found in this case by assuming

facts not proved by the evidence. Such an assumption

impermissibly relieves the Commonwealth of its heavy burden of

proving consent.

The trial judge's decision to admit as evidence the cocaine

discovered by the police in McNair's apartment was error because

the cocaine was found during a warrantless search conducted

without consent or exigency. Thus, I dissent from the portion

of the majority opinion affirming the trial judge's refusal to

suppress the evidence.

I concur in the remainder of the opinion, however, and in

the judgment reversing the conviction and dismissing the

indictment.

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Willis, J., with whom Bray, Bumgardner and Lemons, JJ., join,
concurring, in part, and dissenting, in part.

I agree with the majority that the test tube containing

cocaine was properly admitted into evidence. However, I would

further hold that the evidence sufficiently supported McNair's

conviction.

The test tube containing cocaine was found in McNair's

bedroom, an area personal to him and under his dominion and

control. The test tube was still moist, supporting the

conclusion that it had been used recently to prepare crack

cocaine. Detective Wells, who had participated in executing

more than one hundred search warrants, testified that items such

as the test tube were normally found in homes during the

execution of search warrants and that he had "never located

[such an item] on a person on the street." This testimony

supports the conclusion that paraphernalia such as the test tube

usually remains in the premises where they are used and that

such items are not normally transported from place to place.

These conclusions support the inference that the test tube

belonged to the premises, McNair's apartment and bedroom, and

thus to McNair and discount the supposition that it was an item

transported abroad and abandoned by wandering robbers.

The alternative hypotheses of innocence required to be

excluded for circumstantial evidence to prove sufficient must

"flow from the evidence, and not from the imagination of

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[defense] counsel." Fordham v. Commonwealth, 13 Va. App. 235,

239, 409 S.E.2d 829, 831 (1991). Nothing in the evidence in

this case, other than McNair's exculpatory conjecture, suggests

importation, possession, use, or abandonment of the test tube by

the robbers.

I would affirm the judgment of the trial court.

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