Opinion
Record No. 0920-93-1
October 15, 1993
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK LEONARD B. SACHS, JUDGE.
H. Elizabeth Shaffer, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellant.
Andrew R. Sebok, for appellee.
Present: Judges Baker, Coleman and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Keith Anthony Jarrett (defendant) was arrested and indicted for possession of cocaine with intent to distribute, possession of a firearm while in possession of cocaine and possession of a firearm by a convicted felon. Defendant moved to suppress the evidence recovered during a warrantless search of his automobile, and, following an ore tenus hearing and argument of counsel, the trial court sustained the motion. The Commonwealth appeals, contending that police acted properly under the circumstances. We agree and reverse the decision.
In reviewing a ruling of the trial court on a suppression motion, "[w]e view the evidence in a light most favorable to . . . the prevailing party below," defendant in this instance, "and . . . grant all reasonable inferences fairly deducible from that evidence. We will not reverse the trial judge's decision unless it is plainly wrong. Code § 8.01-680." Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991) (citation omitted).
In the early hours of October 21, 1992, Steven Hoggard, a "narcotics investigator" with the Norfolk Police Department, received a "page" from an informant. This individual had been "working with [Hoggard] for the last three and-a-half years" and had provided information which resulted in "over twenty, thirty convictions." The informant advised that "there was [sic] some subjects selling cocaine" at a specified location, but "they were getting ready to leave possibly in a brown Cadillac Seville" "parked on the west side of the street." The informant noted the "first three letters of the license plate number" of the car and added that the "subjects" would "get . . . drugs from the vehicle." He further reported that the person "selling cocaine was dressed in an all green outfit" and had placed a handgun in the "front portion" of the car, while another man, armed with a "handgun," acted as "guard."
As a result of this information, Hoggard and Investigator Donald R. Norrell proceeded "directly" to the designated area. On arrival, they noticed "four black male subjects standing on the side of the street," "two of them fitting the descriptions that had been provided . . . by the informant," with "the defendant wearing all green." The officers identified themselves, and, when one of the four admitted possession of a gun, Hoggard and Norrell "ordered all . . . to get down on their knees." While complying, defendant "dropped" a "bottle cap." Inside the cap, Hoggard discovered "a small Ziploc bag [which,] from [his] personal experience [, looked] like [it contained] . . . cocaine." Hoggard then arrested and searched defendant, finding $905 and "a set of keys" on his person.
The officers also had observed a Cadillac "parked directly across the street" which matched the informant's description. When questioned, defendant denied ownership of the vehicle, but the keys found on his person "did in fact work on the door" of the car, and it was registered to him. Without either permission or a warrant, Hoggard and Norrell searched the Cadillac and discovered the evidence in issue. At the time of the search, defendant had been arrested and handcuffed, the keys were in possession of the police, and four officers were on the scene. Defendant challenges this warrantless search as wanting in both probable cause and exigent circumstances.
Our analysis begins "with the cardinal principle that the fourth amendment proscribes all unreasonable searches and seizures and '"searches conducted outside the judicial process, without prior approval of a judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions."'"Cantrell v. Commonwealth, 7 Va. App. 269, 282, 373 S.E.2d 328, 334 (1988) (quoting Mincey v. Arizona, 437 U.S. 385, 390 (1978)) (other citation omitted). The warrantless search of an automobile, "where there are both probable cause to believe the car contains evidence of crime and exigent circumstances," is well established among such exceptions. McCary v. Commonwealth, 228 Va. 219, 227, 321 S.E.2d 637, 641 (1984). This exception recognizes the
difference between a search of a . . . structure in respect of which a proper official warrant readily may be obtained and a[n] . . . automobile . . ., where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.
Carroll v. United States, 267 U.S. 132, 153 (1925).
"[P]robable cause exists when the facts and circumstances within the officer's knowledge, and of which he has reasonably trustworthy information, alone are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed." Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E.2d 833, 836 (1981), cert. denied, 456 U.S. 906 (1982). It is a concept that "deals with probabilities. These are not technical; they are the factual and practical considerations in every day life on which reasonable and prudent men, not legal technicians, act." Derr v. Commonwealth, 242 Va. 413, 421, 410 S.E.2d 662, 666 (1991) (quoting Saunders v. Commonwealth, 218 Va. 294, 300, 237 S.E.2d 150, 155 (1977)).
Here, the investigators had received information from a person known to them, with established reliability, which they independently verified in virtually every detail. Such information, together with the observations of trained law enforcement officers, clearly gave rise to probable cause to believe that the Cadillac contained both a weapon and drugs.
Nevertheless, defendant dismisses any threat to the evidence because he was in the physical custody of police, and the automobile could be "secured" at the scene pending issuance of a search warrant. Thus, defendant argues, there existed no exigent circumstances necessary to justify the warrantless search. See Helms v. Commonwealth, 10 Va. App. 368, 371, 392 S.E.2d 496, 497 (1990). This argument, however, is without merit.
In Patty v. Commonwealth, 218 Va. 150, 235 S.E.2d 437 (1977),cert. denied, 434 U.S. 1010 (1978), the Supreme Court approved the warrantless search of an automobile parked on private property, although several police officers were present, the operator and his companions were in custody and the car had been disabled by removal of its ignition coil. Id. The Patty court recognized that someone with a duplicate key to the vehicle could replace the ignition coil and drive away with the evidence while police pursued a warrant. Id. at 156-57, 235 S.E.2d at 441. Moreover, "[f]or the safety of themselves, and the public, sound judgment mandated an immediate search [of the car] by the officers" in the event that "deadly weapons . . . were hidden" with the suspected drugs. Id. at 157, 235 S.E.2d at 441.
Here, the automobile was fully operable, accessible to a public street, and a person not in the custody of police and with keys to the vehicle could have easily removed both car and evidence. Guided by Patty, we decline to hold that the police were required to secure the car at the scene and await a warrant and find that "prompt action to search for and seize the contraband . . . was dictated by the exigencies of the situation."Id.
Thus, probable cause to search the automobile coincided with exigent circumstances, and the trial court erred in suppressing evidence discovered during the warrantless search. Accordingly, we reverse the suppression order and remand the case for such further proceedings as the Commonwealth deems appropriate.
Reversed and remanded.