Opinion
Record No. 0829-94-4
Decided: March 21, 1995
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY, Paul D. Brown, Judge Designate
Michael G. Blaz for appellant.
Robert B. Beasley, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judge Fitzpatrick and Senior Judge Duff
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Levi Burgess (appellant) was convicted in a jury trial of breaking and entering and grand larceny. On appeal, appellant argues that the trial court erred in denying his motions to suppress. We disagree and affirm his convictions.
In connection with a nearby burglary, Sergeant J. W. Chavis of the Kannapolis, North Carolina, police executed a search warrant upon appellant's Kannapolis home on August 6, 1993. The search warrant authorized the police to search for jewelry, weapons, and coins, among other things. Before anything was moved, the police took photographs of the interior of the house. The police found in appellant's home some of the items particularly described in the warrant as stolen property.
During the search, the officers also observed various bags and cases containing a wide assortment of items not grouped by type. Some of the items were inscribed with names other than appellant's or that of his family members. Electronic equipment was not plugged in or prepared for use. The serial numbers had been removed from several electronic components. The officers also found written directions for opening a safe, as well as written information about the placement of an alarm system at a particular home and when the residents would be away.
At the time of the search, Chavis knew that appellant had previously been convicted of numerous property crimes, including burglary, possession of stolen goods, and breaking and entering. Based upon this information and the surrounding circumstances, the police seized numerous items which they believed were stolen. The police did not seize any of the items appellant's wife indicated she had purchased herself.
On May 18, 1993, Mary Elizabeth Millette's Prince William County home had been burglarized. Chavis learned of the Millette burglary subsequent to his search of appellant's home and conferred with the Prince William County police. Millette identified property that had been stolen from her residence among the items seized from appellant's home on August 6. She viewed the pre-search photographs of the interior of appellant's home and identified additional items taken from her home in the burglary that had not been seized on August 6.
On December 29, 1993, Investigator Jeff Tysinger obtained the permission of appellant's wife to search appellant's house and remove the property Millette had identified. The police then seized a "Santa" jar containing coins and a VCR.
By pretrial motions, appellant moved to suppress the evidence seized on August 6, arguing that the police officers did not possess probable cause that the items they seized were evidence of a crime. Appellant also moved to suppress the property seized in the December 29 search because that search was a "fruit" of the earlier illegal seizure. The trial judge denied the motions to suppress.
Appellant argues that North Carolina law controls the disposition of his claims. We disagree. Virginia law, as the lex fori, governs whether the trial court should have suppressed the evidence in this case. See Frye v. Commonwealth, 231 Va. 370, 376, 345 S.E.2d 267, 272 (1986); Jackson v. Commonwealth, 14 Va. App. 414, 416, 417 S.E.2d 5, 6 (1992).
The items seized on August 6 which Millette identified as hers were not described in the search warrant. However, "[a] search is not invalid simply because officers seize items not named in the warrant." Morke v. Commonwealth, 14 Va. App. 496, 502, 419 S.E.2d 410, 414 (1992). Under the plain view doctrine, the police may seize private possessions without a warrant if the police officer is lawfully in a position from which he can "view the location of the seizure" and it is " 'immediately apparent' to the police officer that the item he observes may be evidence of a crime, contraband, or otherwise subject to seizure." Ruffin v. Commonwealth, 13 Va. App. 206, 208, 409 S.E.2d 177, 178-79 (1991) (citing Coolidge v. New Hampshire, 403 U.S. 443, 465-68 (1971)).
The "immediate apparent" requirement equates to probable cause in the context of "plain view." "[P]robable cause is a flexible, common-sense standard . . . [which] merely requires that the facts available to the officer would 'warrant a man of reasonable caution in the belief' that certain items may be . . . useful as evidence of a crime."
Commonwealth v. Ramey, 19 Va. App. ___, ___, 450 S.E.2d 775, 777 (1994) (quoting Texas v. Brown, 460 U.S. 730, 741-42 (1983)).
In Blair v. Commonwealth, 225 Va. 483, 303 S.E.2d 881 (1983), police officers, during the execution of a search warrant for a coin collection, seized 622 items they believed had been stolen. They had observed in the building burglary tools, jewelry, weapons, a collection of pocket knives, and a quantity of sterling silver, some of which had been stuffed into a pillowcase. On appeal, the Court found that, although the necklace that was admitted as evidence against Blair was not described in the search warrant and might not have been seizable if the police had found it alone, "the officers were justified in concluding that the entire building was a repository for stolen goods" and in seizing the property. Blair, 225 Va. at 490, 303 S.E.2d at 886.
Similarly, when police officers entered appellant's home on August 6, they were confronted with numerous bags and cases filled with a jumble of unassociated items. The appearance of some of these items suggested that they were not rightfully appellant's; serial numbers had been removed from electronic items and jewelry was inscribed with initials of persons unknown. The police found written directions to open a safe and information concerning a home alarm system. In addition to these observations, the officers, who were searching for the fruits of a burglary, knew that appellant had been convicted of numerous property crimes. Under these circumstances, the police were justified in concluding that the goods they seized might be useful as evidence of a crime. Thus, the August 6 seizure was proper.
Regarding the December 29 search, appellant argues only that it was a "fruit of the poisonous tree" of the August seizure. Because we conclude that the August seizure was lawful, there was no "poisonous tree" to bear "fruit."
For the reasons stated, the judgment of the trial court is affirmed.
Affirmed.