COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole
Argued by Teleconference
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 2387-96-4 JUDGE MARVIN F. COLE
MARCH 27, 1997
STEVE THORNTON
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Carleton Penn, Judge Designate
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Marla G. Decker, Assistant Attorney General,
on briefs), for appellant.
James C. Love, IV (Love, Keilsgard &
Associates, P.C.), for appellee.
Steve Thornton was indicted for the possession of cocaine
with the intent to distribute it, the simultaneous possession of
cocaine and a firearm, and the possession of more than one-half
ounce but less than five pounds of marijuana. The trial judge
granted in part Thornton's motion to suppress evidence seized
from his apartment, but denied the motion to suppress his
statement to the police. The Commonwealth appealed pursuant to
Code § 19.2-398, and Thornton cross-appealed issues decided
adversely to him. For the reasons that follow, we affirm in part
and reverse in part.
FACTS
At about 5:00 p.m. on June 2, 1995, the Leesburg Volunteer
Fire Company received a call regarding a possible fire at the
Cavalier Arms Apartments. When Peter Comanduras, a captain with
the fire company, arrived at the apartments, he met a person who
said he had called 911 because he smelled smoke and heard a smoke
detector sounding in the apartment next door to his own. Police
officers also arrived at the scene and, in conjunction with the
firefighters, knocked on the doors of apartments nearby in an
effort to evacuate the building. Customarily, police officers in
Leesburg respond with firefighters to the scene of a reported
fire to facilitate traffic and crowd control.
Comanduras repeatedly knocked on the door of the apartment
where the fire had been reported, but he received no response.
He heard "what sounded like a smoke detector" inside the
apartment. Comanduras directed Firefighter Rodey to the rear of
the apartment to look through a ground floor window. Rodey
reported that he could not see smoke or fire, but heard what
sounded like "a smoke detector going" inside the apartment.
Rodey removed the screen from an open window and entered the
apartment through the window. He proceeded to the front door and
admitted other firefighters to the apartment.
Upon entering the apartment, Comanduras saw a pager on a
table near the door. The pager, which was emitting a loud
beeping sound, was the source of the noise the firefighters had
heard from outside the apartment. Stacked on the table was a
large amount of cash with what appeared to be a small marijuana
cigarette beside it. To his left in the living room Comanduras
saw suspicious material in a bag on the coffee table. Rodey and
-2-
Firefighter Obaugh continued to check the rest of the apartment
to determine if there was a fire which could have been smoldering
and producing only very light smoke. Comanduras testified that,
while Rodey and Obaugh were engaged in this activity, he stepped
out of the apartment and asked the police officers to enter and
secure the stack of money inside. Then, having found no one in
the apartment and no evidence of a fire, the firefighters
departed the scene, leaving the apartment and the money in the
responsibility of the police officers.
Officer Jeffrey Hunt testified that he was present when
Rodey entered the apartment through the window. Hunt then
returned to the front door and entered the apartment with the
firefighters and Officer Gerard Clarkson. Upon entry, the
officers saw the stack of money. Hunt testified that a
firefighter pointed out the item which appeared to be a marijuana
cigarette to him and Clarkson. Hunt also saw on the living room
coffee table a plastic bag containing a green leafy material he
suspected was marijuana.
After the firefighters had left the apartment, Clarkson
called his sergeant for assistance. Clarkson checked the
apartment to verify that no one was present and for "officer's
safety sake." Clarkson noticed a nine millimeter Glock handgun
on the television in a bedroom. Beside the gun was a baggie
containing a white substance which Clarkson suspected was
cocaine.
-3-
In response to Clarkson's call, Sergeant Willie Potter
arrived at the apartment several minutes later. Clarkson and
Hunt showed Potter the suspected marijuana and cocaine, the cash,
the pager, and the gun. Potter field tested the suspected drugs,
and the results of the tests were positive for cocaine and
marijuana. After conducting the field tests, Potter placed the
suspected cocaine and marijuana, the cash, the pager, a package
of rolling papers, and the gun in a bag, which he took with him
to obtain a search warrant for the apartment.
In the affidavit for the search warrant, Potter described
the circumstances under which the firefighters and police had
entered the apartment and found the cash, gun, and suspected
drugs. He also stated that he field tested the substances and
obtained positive readings for both marijuana and cocaine.
Potter later executed the search warrant he obtained at the
apartment and seized, among other things, additional cocaine and
marijuana, prescription drugs, and food stamps.
On June 7, 1995, before Thornton was charged with any crime
arising from the items seized from the Cavalier Arms apartment,
Thornton's attorney contacted Potter. The attorney advised
Potter that he wished to be present during any communication
between Potter and Thornton.
On June 14, 1995, Thornton himself called Potter, said he
had decided to proceed without his attorney, and agreed to speak
with the police. Later that day, Thornton appeared at the police
-4-
station with his father, and Potter and another officer spoke
with them in the library of the police station. At the beginning
of the interview, Potter explained that Thornton was not in
custody and was free to leave at any time. Thornton said he
understood and did not desire to have an attorney present.
Potter advised Thornton of his constitutional rights, and he
executed a written waiver of his rights. Thornton then admitted
that he lived in the apartment the police had searched. He made
incriminating statements regarding the drugs, money, gun, and
other items found there.
The trial judge ruled that the firefighters' and police
officers' entry to Thornton's apartment was lawful and that any
contraband items in their plain view were admissible. However,
the judge found that the officers were not entitled to field test
the suspected drugs found on the premises. Because the affidavit
for the search warrant referred to the results of the field
tests, the search warrant was invalid and any items seized
pursuant to the warrant were inadmissible. The judge refused to
suppress Thornton's statement, finding that he was not in custody
when he had made it.
SEIZURE OF EVIDENCE IN "PLAIN VIEW"
"The theory of the plain view doctrine is that an individual
has no reasonable expectation of privacy in items that are in
plain view." Arnold v. Commonwealth, 17 Va. App. 313, 318, 437
S.E.2d 235, 238 (1993). "The plain-view doctrine is grounded on
-5-
the proposition that once police are lawfully in a position to
observe an item firsthand, its owner's privacy interest in that
item is lost; the owner may retain the incidents of title and
possession but not privacy." Illinois v. Andreas, 463 U.S. 765,
771 (1983). "[I]n order for a seizure to be permissible under
the plain view doctrine, two requirements must be met: '(a) the
officer must be lawfully in a position to view and seize the
item, [and] (b) it must be immediately apparent to the officer
that the item is evidence of a crime, contraband, or otherwise
subject to seizure.'" Conway v. Commonwealth, 12 Va. App. 711,
718, 407 S.E.2d 310, 314 (1991) (en banc) (quoting Stokes v.
Commonwealth, 4 Va. App. 207, 209, 355 S.E.2d 611, 612 (1987)).
We address both these questions in the context of the facts at
hand.
First, for the evidence seized by Potter without a warrant
to have been admissible, Hunt and Clarkson must have been
lawfully inside Thornton's apartment and in a position to observe
the evidence. The Commonwealth bears a heavy burden to justify
the warrantless entry into a residence, which is presumptively
unreasonable and therefore contrary to the Fourth Amendment. See
Reynolds v. Commonwealth, 9 Va. App. 430, 435-36, 388 S.E.2d 659,
663 (1990). However, because the trial judge found the entry
reasonable, we view the evidence as to this issue "in a light
most favorable to the Commonwealth, granting to it all inferences
fairly deducible therefrom . . . ." Id. at 436, 388 S.E.2d at
-6-
663 (citing Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d
729, 731 (1980)).
In Reynolds, we stated that "[t]he concept of 'exigent
circumstances' forms the basis of the recognized exceptions to
the Fourth Amendment requirement that a warrant to search must be
obtained prior to entry. Among the circumstances accepted as
providing 'exigent circumstances' for a warrantless search are
those where a true 'emergency' exists." Id. (citation omitted).
"A burning building clearly presents an exigency of sufficient
proportions to render a warrantless entry 'reasonable.' Indeed,
it would defy reason to suppose that firemen must secure a
warrant or consent before entering a burning structure to put out
the blaze." Michigan v. Tyler, 436 U.S. 499, 509 (1978).
Furthermore,
[p]olice officers are not required to possess
either the gift of prophecy or the infallible
wisdom that comes with hindsight. Their
conduct in making a warrantless search must
be judged by the circumstances confronting
the officers at the time they act. The
reasonableness of a police officer's response
in a given situation is a question of fact
for the trial court and its ruling will not
be disturbed on appeal absent clear and
manifest error. The right of the police to
enter and investigate in an emergency is
inherent in the very nature of their duties
as police officers. A warrantless search
during an emergency situation is "justified,
if not required, by the fact that 'the
preservation of human life is paramount to
the right of privacy protected by search and
seizure laws and constitutional guaranties
[sic].'"
Reynolds, 9 Va. App. at 437, 388 S.E.2d at 664 (citations
-7-
omitted).
The facts, as they appeared to the firefighters and police
officers called to the reported fire, justified a conclusion that
an emergency existed inside Thornton's apartment, thus justifying
the warrantless entry. The neighbor who made the report met the
firefighters and officers upon their arrival and advised that he
had smelled smoke emanating from Thornton's apartment.
Furthermore, as the firefighters and officers confirmed, a loud
beeping noise which sounded like a smoke detector could be heard
from within the apartment. No one responded to the door of the
apartment as police officers tried to evacuate other residents of
the building. Under these circumstances, the firefighters and
police officers lawfully entered Thornton's apartment to
determine if there was a fire and to protect the lives and
property of the apartment building residents.
Next, we consider the second half of the "plain view"
equation. "The 'immediately apparent' requirement equates to
probable cause in the context of 'plain view.'" Commonwealth v.
Ramey, 19 Va. App. 300, 304, 450 S.E.2d 775, 777 (1994) (citing
Texas v. Brown, 460 U.S. 730, 741-42 (1983)). Once inside the
apartment, Hunt and Clarkson, as well as the firefighters,
observed what appeared to be a bag of marijuana, as well as a
marijuana cigarette, a large amount of cash, and a beeper. These
circumstances provided Hunt and Clarkson with probable cause to
believe that marijuana was present in the apartment, and they
-8-
were entitled to seize it. "[T]he fact that the officers [later]
chose to field test the substance does not indicate that they
lacked probable cause to believe the [substance] was contraband.
Testing for certainty's sake will not, by itself, undermine an
otherwise valid probable cause determination." United States v.
Buchanan, 70 F.3d 818, 826 n.5 (5th Cir. 1995), cert. denied, 116
S. Ct. 1340 (1996).
As a part of the same transaction involving the entry into
the apartment and the observance of suspected drugs, Hunt and
Clarkson, remaining in the apartment to secure the scene, called
for the assistance of other police officers. While they waited,
Clarkson entered the bedroom to ensure the officers' safety and
confirm the firefighters' conclusion about the reported fire. In
the bedroom Clarkson observed in plain view a firearm and
suspected cocaine.
Once police officers have effectuated a lawful warrantless
entry and observed contraband inside, if there is a "'substantial
risk that evidence will be lost or destroyed,'" the officers "may
conduct a limited security check in those areas where individuals
[who might destroy the evidence] could hide." Crosby v.
Commonwealth, 6 Va. App. 193, 201, 367 S.E.2d 730, 735 (1988).
See also Hunter v. Commonwealth, 8 Va. App. 81, 378 S.E.2d 634
(1989). Clarkson did not exceed the scope of this authority in
making the security check of the bedroom. See Hill v.
Commonwealth, 18 Va. App. 1, 4, 441 S.E.2d 50, 51 (1994).
-9-
Therefore, the police officers also were entitled to seize from
the bedroom the contraband found there in plain view.
FIELD TESTS OF THE SUSPECTED DRUGS
"[A] seizure lawful at its inception can nevertheless
violate the Fourth Amendment because its manner of execution
unreasonably infringes possessory interests protected by the
Fourth Amendment's prohibition on 'unreasonable seizures.'"
United States v. Jacobsen, 466 U.S. 109, 124 (1984). Thus, in
determining whether the field tests of the suspected marijuana
and cocaine were lawful, we "'must balance the nature and quality
of the intrusion on the individual's Fourth Amendment interests
against the importance of the governmental interests alleged to
justify the intrusion.'" Id. at 125.
In upholding a police officer's field test of white powder
contained in a package, the United States Supreme Court stated:
The law enforcement interests justifying the
procedure were substantial; the suspicious
nature of the material made it virtually
certain that the substance tested was in fact
contraband. Conversely, because only a trace
amount of material was involved, . . . and
since the property had already been lawfully
detained, the "seizure" could, at most, have
only a de minimus impact on any protected
property interest.
Id. at 125.
Prior to conducting the field tests in this case, the
officers possessed the right to seize the substances they
suspected were marijuana and cocaine. The property interest
Thornton retained in the substances, if any, was outweighed by
-10-
the interests of the police in determining that the substances
were, in fact, contraband. Thus, the field tests were not
unreasonable and did not violate the Fourth Amendment. Because
the field tests were lawful, Potter was permitted to include the
results in the affidavit for the search warrant. The trial judge
erred in ruling otherwise and in finding that items seized
pursuant to the search warrant were inadmissible.
-11-
THORNTON'S STATEMENT TO THE POLICE
On cross-appeal, Thornton contends that his statement to the
police on June 14 violated his Fifth Amendment rights. Where an
accused in a criminal case is subjected to custodial police
interrogation, he first must be advised of his Fifth Amendment
rights as defined in Miranda v. Arizona, 384 U.S. 436 (1966), for
any statement he makes to be admissible in evidence. Custodial
interrogation means "questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way." Id.
at 444.
Thornton contends that he asserted his Fifth Amendment right
to counsel through his attorney on June 7, and that his future
contact with the police in the absence of counsel violated his
Fifth Amendment rights. However, as we have noted,
Edwards [v. Arizona, 451 U.S. 477 (1981),]
held that when an accused, during a custodial
interrogation, invokes the right to have
counsel present, the police may not resume
the interrogation until the individual
re-initiates communications and waives his
right to counsel. The Edwards rule has not
been expanded to include non-custodial
demands for an attorney . . . .
Tipton v. Commonwealth, 18 Va. App. 832, 834, 447 S.E.2d 539, 540
(1994) (citation omitted). The record contains no evidence that
the police had even contacted Thornton before June 7, much less
deprived Thornton of his freedom in any way. Therefore, he was
not in custody at that time and the purported assertion of
-12-
Thornton's right to counsel was ineffectual. See id.
Nor does the record reveal that Thornton was in custody when
he talked to the police on June 14. "[T]he application of
Miranda [is not] triggered 'simply because the questioning takes
place in the station house, or because the questioned person is
one whom the police suspect.'" Pruett v. Commonwealth, 232 Va.
266, 271, 351 S.E.2d 1, 4 (1986) (quoting Oregon v. Mathiason,
429 U.S. 492, 495 (1977)). "The mere presence of an officer and
the mere fact of an investigation does not invoke Miranda."
Jordan v. Commonwealth, 216 Va. 768, 772, 222 S.E.2d 573, 577
(1976).
Thornton called Potter on June 14 and expressed his interest
in talking to the police. Acting upon his own initiative,
Thornton later presented himself at the police station. He was
accompanied by his father. He was immediately advised that he
was free to leave at any time and that he was not under arrest.
Appellant said he understood, and there was no evidence Thornton
was deprived of his freedom thereafter. Although Potter advised
Thornton of his constitutional rights, he was not required to do
so, and no perceived defect in that process rendered his
statement inadmissible. For these reasons, the trial judge did
not err in denying the motion to suppress Thornton's statement.
Thornton further argues that the trial judge erroneously
refused to permit him to introduce evidence in support of his
motion to suppress his statement. Code § 19.2-401 states that
-13-
"[t]he defendant shall have no independent right of appeal
pursuant to § 19.2-398. If the Commonwealth appeals, the
defendant may cross appeal from any orders from which the
Commonwealth may appeal, pursuant to § 19.2-398." Code
§ 19.2-398 does not permit appeal of a trial judge's evidentiary
rulings at a hearing on a motion to suppress. See Code
§ 19.2-398. Accordingly, this question is not an issue
cognizable on cross-appeal pursuant to Code § 19.2-401, and we do
not address it.
For the foregoing reasons, we affirm in part and reverse in
part the trial judge's decision regarding the motion to suppress.
We remand the case for further proceedings consistent with this
opinion.
Affirmed in part,
reversed in part,
and remanded.
-14-