Opinion
Docket No.: CR17-1853
06-22-2018
Re: Commonwealth of Virginia v. Tion Hill
Catherine Paxson, Esquire Office of the Commonwealth's Attorney City of Norfolk 800 East City Hall Avenue, Suite 600 Norfolk, Virginia 23510 B. Thomas Reed, Esquire 4504 Colley Avenue Norfolk, Virginia 23508
Catherine Paxson, Esquire
Office of the Commonwealth's Attorney
City of Norfolk
800 East City Hall Avenue, Suite 600
Norfolk, Virginia 23510 B. Thomas Reed, Esquire
4504 Colley Avenue
Norfolk, Virginia 23508 Dear Counsel:
Today the Court rules on the Motion to Suppress (the "Motion") filed by Defendant Tion Hill, in which he seeks to suppress any evidence recovered from both his person and the vehicle he was operating prior to his arrest (the "Vehicle"). A hearing (the "Hearing") on the Motion was held on May 2, 2018. The specific issue before the Court is whether the search of Hill and the Vehicle—ostensibly supported by the odor of marijuana emanating from both Hill and the Vehicle—was lawful, such that the property seized as a result of the search may be used as evidence against Hill at trial. Because the Commonwealth failed to satisfy its burden of proving probable cause existed for the search, the Court finds that the search was unlawful. The Court therefore GRANTS Hill's motion to suppress any evidence obtained as a result of the search.
Background
An undercover Norfolk Police Department ("NPD") team, led by Investigator J.P. Carpenter, was surveilling a residence located in the city of Norfolk on the evening of March 9, 2017. (Tr. 6.) The team observed an individual, later identified as Hill, exit the residence and enter the Vehicle to depart. (Tr. 124.) Carpenter decided to follow the Vehicle, and Hill subsequently was observed committing a traffic infraction. (Tr. 85-86.) Carpenter requested that dispatch direct a marked patrol car to pull over the Vehicle, and Officer Austin responded to the call from dispatch. (Tr. 27.)
Austin located the Vehicle as Hill was parking it in a residential driveway. (Tr. 28.) Although Austin testified that he activated his patrol car emergency lights, there was no indication on Austin's body camera video that the lights ever engaged. (Tr. 28, 52.) Hill exited the Vehicle, whereupon Austin pointed a handheld searchlight at Hill, approached him, and asked him for identification. (Tr. 28, 46.) At the preliminary hearing, Austin testified that the Vehicle door was ajar when he approached, but he acknowledged that the door in fact was closed and locked after reviewing the body camera footage at the Hearing. (Tr. 38-39.)
Austin testified that when he was approximately eight to twelve feet from the Vehicle, he detected a strong odor of marijuana emanating from both the Vehicle and Hill. (Tr. 29, 31.) When Hill asked why he was being questioned, Austin indicated he did not know the reason for the "stop." (Def.'s Ex. 2.) Austin subsequently approached the Vehicle and observed through its closed window an AK-47 and a handgun on the front seat. (Tr. 29; Def.'s Ex. 2.) Austin commented to Hill that he saw the weapons, and Hill produced a valid concealed weapon permit. (Tr. 31, 67-68.) Hill indicated that he received "a call from his grandfather" and was "coming to check on him." (Def.'s Ex. 2.) Austin then told Hill, "For my safety and yours, I'm going to put you in handcuffs right now" and proceeded to handcuff Hill. (Def.'s Ex. 2.) Austin then conducted a pat-down search of Hill and recovered a large amount of cash from Hill's pocket. (Tr. 35.) Austin requested Hill's consent to search the Vehicle, which Hill refused to give. (Tr. 64.) Austin subsequently informed Hill that he was going to "take out the AK and the [handgun] and [he was] gonna run those." (Def.'s Ex. 2.) Austin retrieved the keys to the Vehicle from Austin's pocket and asked another officer to place Hill in a patrol car. (Tr. 58; Def.'s Ex. 2.) Of note, Austin testified on direct examination at the Hearing that he opened the door to the Vehicle to retrieve the firearms; however, the body camera footage demonstrates that Austin did not, at any time, open the door to retrieve the guns. (Tr. 39-40; Def.'s Ex. 2.)
Carpenter arrived shortly after Hill had been detained, and Austin notified Carpenter of the firearms. (Tr. 88.) Austin testified at the preliminary hearing that when the investigators arrived on scene, he advised them of the odor of marijuana and asked them if they smelled it. (Tr. 62.) Austin admitted at the Hearing, however, that the body camera footage only shows him informing the investigators about the firearms, with no mention of marijuana. (Tr. 62-64; Def's Ex. 2.) Specifically, Austin states to the first officer who approaches, "Hey, we've got an AK and [a handgun] in the front seat." (Tr. 47.) Later in the video, Austin tells Carpenter, "[Hill] said no to the search. I told him I am still pulling out the AK and the 9 [mm], and I am running them because they are in plain sight." (Def.'s Ex. 2.) Although Carpenter testified that he detected an odor of marijuana emanating from both the Vehicle and Hill's person upon approaching the scene, in the video both he and Austin appear to focus on the firearms, and neither mentions the smell of marijuana to Hill at any time. (Tr. 88-89; Def.'s Ex. 2.) Carpenter then called the other responding officers together and told them, "In this house there is supposed to be a lot of guns, alright, like a shit load. And marijuana, too. So it's, uh, try to like be both spread out, keep your eyes out, see what is going on. I'm gonna take a look inside the car and go from there." (Def.'s Ex. 2.) Another officer then approached Austin and asked, "What have we got?" (Id.) Austin replied, "They told me we have PC for the stop. They said the stop and we got PC on it. So when I walked up to the car, he got out. And he's got an AK and a [handgun] on the seat." (Id.)
Austin then approached the Vehicle and discovered that Carpenter had already opened the driver door and was searching the driver's floor area. (Tr. 66-67.) Carpenter exited the Vehicle to put on evidence gloves, whereupon Austin mentioned, "Oh, there was a 122 odor in there too, so, and on him." (Def.'s Ex. 2.) After searching the interior of the Vehicle, Carpenter opened the Vehicle's trunk and discovered what appeared to be marijuana. (Tr. 89.) Based on the evidence presented at the Hearing, it is disputed whether any marijuana was found within the Vehicle passenger compartment; however, Carpenter reported recovering five plastic bags containing a total of .44 pounds of marijuana from the Vehicle. (Def.'s Ex. 4.) After the search of the Vehicle was underway, another officer called in Hill's information to police headquarters and verified that Hill was not a convicted felon. (Def.'s Ex. 2.)
Austin testified that although his reference to "a 122 odor" was intended to communicate that there was an odor of marijuana, the reference actually indicates that law enforcement has encountered an intoxicated driver. (Tr. 71.)
Hill subsequently filed a motion to suppress any evidence recovered from his person or from the Vehicle. A hearing (the "Hearing") was held on May 2, 2018. The Court took the matter under advisement and allowed the parties to file post-Hearing briefs, which they did.
Position of the Parties
Hill's Position
Hill states that, according to Austin's body camera footage, the only mention of an odor of marijuana occurs after the Vehicle is already being searched and after the apparent discovery of what appears to be marijuana. He contends that the law enforcement officers were mistaken in asserting that they smelled marijuana before they searched the Vehicle and, as such, the search was unlawful. Hill therefore asserts that all items recovered should be suppressed.
As an initial matter, Hill argues that the Commonwealth mischaracterizes Austin's confrontation of Hill as a traffic stop. (Mem. in Supp. 4-6.) To support this argument, Hill emphasizes that Austin did not turn on his emergency lights or siren and, in fact, did not turn on his searchlight until Hill's headlights were already off. (Id.) Hill therefore asserts that the Vehicle was already stopped and that Austin did not "stop" the Vehicle for a traffic stop. (Id.)
Additionally, Hill argues that the law enforcement officers' recollections of the events surrounding the search and seizure at issue are not credible. (Tr. 138-42.) Hill alleges that the officers' testimony at the Hearing regarding the odor of marijuana was demonstratively false because it was inconsistent with both their preliminary hearing testimony and Austin's body camera video. (Mem. in Supp. at 6-7.) He further contends that the video proves that Austin did not relay to Carpenter that he smelled marijuana when Carpenter arrived on scene but rather that Austin revealed this information only after Carpenter commenced searching the Vehicle. (Id. at 9, 12-13.) Hill therefore contends that the law enforcement officers were mistaken in asserting that they smelled marijuana before they searched the Vehicle and, as such, the search was unlawful, and all items recovered should be suppressed. (Tr. 138-41.)
Lastly, Hill argues that the officers' testimony regarding Carpenter's surveillance and Austin's conduct surrounding the investigative detention was not credible. (Mem. in Supp. at 7-8, 10-17.) Specifically, he asserts that Carpenter's testimony regarding the coincidental nature of Carpenter following Hill to a house previously reported to have "a lot of guns" and marijuana was "strange" and not credible. (Id. at 10-17.) He also states that the only information available to Austin regarding the firearms in the Vehicle was that they were legal. (Id. at 7-8.)
The Commonwealth's Position
The Commonwealth argues that the officers' testimony regarding an odor of marijuana emanating from both the Vehicle and Hill's person is sufficient to support probable cause for a search of the Vehicle. (Tr. 132-33.) It concedes that the mere observation of firearms in the front seat of the Vehicle after Hill had exited was insufficient to justify a search, but it asserts that the credibility of the two seasoned law enforcement officers outweighs any doubt that they smelled marijuana. (Tr. 135-36.) It argues that this case is distinguishable from a situation in which the officers had found a small amount of marijuana—or no marijuana at all—where it might be reasonable for the Court to find that they had not smelled marijuana. (Tr. 136.) In contrast, it asserts that, given the experienced officers' testimony and the amount of marijuana retrieved, the Court should find that the circumstances supported probable cause and deny the motion to suppress the evidence. (Tr. 135-37.)
In response to Hill's argument that the confrontation was not a traffic stop, the Commonwealth asserts that it indeed was a traffic stop based on the observed traffic infraction, regardless of whether Austin's patrol vehicle siren and lights were activated. (Resp. to Def.'s Mem. 2-3.) It argues that the investigative detention was based on the observed firearms but that the search was based on the marijuana odor after law enforcement arrived on scene. (Id. at 5.) It further asserts that Carpenter testified that he did not find any marijuana inside the Vehicle and that Austin mentioned the marijuana in listing his reasons for detaining Hill. (Id.) It notes that there was no reason to mention the smell of marijuana because it was "strongly in the air," so the officers assumed everyone could smell it. (Id.)
Regarding the credibility argument, the Commonwealth asserts that witness credibility is for the factfinder to determine. (Id. at 3-4.) It furthers contends that there is no indication of false testimony and that any inconsistencies are the product of the officers' difficulty in remembering specific details due to the passage of time. (Id. at 4.) It states that Carpenter had no reason to lie about his prior knowledge of Hill because he had probable cause to stop the Vehicle regardless. (Id. at 6.)
Analysis
Legal Standard
A defendant seeking to suppress evidence bears the burden of proving factual circumstances giving rise to a reasonable expectation of privacy, which is the burden of persuasion. Testa v. Commonwealth, 55 Va. App. 275, 282 n.3, 685 S.E.2d 213, 216 n.3 (2009). In response, the Commonwealth has the burden to prove admissibility of the seized evidence by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168 (1986). For a warrantless search, the Commonwealth also has the burden of establishing an exception to the warrant requirement. Walls v. Commonwealth, 2 Va. App. 639, 645, 347 S.E.2d 175, 178 (1986).
The Fourth Amendment of the Constitution of the United States ensures "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." As such, warrantless searches are considered per se unreasonable, subject to "a few well-defined exceptions" including (1) consent, (2) search incident to lawful arrest, (3) plain view, and (4) exigent circumstances. Collins v. Commonwealth, 292 Va. 486, 497, 790 S.E.2d 611, 616 (2016) (quoting Abell v. Commonwealth, 221 Va. 607, 612, 272 S.E.2d 204, 207 (1980)), rev'd on other grounds, 2018 U.S. LEXIS 3210 (May 29, 2018). The Virginia Supreme Court has recognized common examples of exigent circumstances, including (1) hot pursuit, (2) the imminent destruction of evidence, and (3) the possibility of danger to others. Id.
Although the Fourth Amendment generally prohibits searches without a warrant, courts have recognized an exception for automobiles. Id. at 497-98, 790 S.E.2d at 617. The automobile exception does not require a separate exigency because it is reserved for cases in which there are "facts that would justify the issuance of a warrant, even though a warrant has not been actually obtained." Id. at 498, 790 S.E.2d at 617 (quoting Maryland v. Dyson, 527 U.S. 465, 466-67 (1999)). Accordingly, "[t]he Supreme Court has articulated a simple, bright-line test for the automobile exception: '[i]f a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment . . . permits police to search the vehicle without more.'" Id. at 498, 790 S.E.2d at 617 (quoting Dyson, 527 U.S. at 467).
In determining whether a law enforcement officer had probable cause for a search, a court must consider "the totality of the circumstances surrounding the search, as well as consider[] . . . the officer's knowledge, training and experience." Cost v. Commonwealth, 275 Va. 246, 251, 657 S.E.2d 505, 507 (2008). Because the automobile exception requires probable cause, an officer's hunch or suspicion is not sufficient to authorize the search. See United States v. Sokolow, 490 U.S. 1, 7 (1989) (stating that reasonable suspicion requires more than an "inchoate and unparticularized suspicion or 'hunch,'" and that probable cause requires even more than what is required for reasonable suspicion (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968))). Police actions are tested using an objective reasonableness standard without regard to the underlying intent or motivation of the officers. Poindexter v. Commonwealth, 16 Va. App. 730, 734, 432 S.E.2d 527, 529-30 (1993).
Discussion
The Court has considered the pleadings, evidence and oral argument presented at the Hearing, and applicable authorities. The Court now rules as follows. A. Austin's Actions in Stopping Hill Constituted a Lawful Traffic Stop.
1. Austin's Reliance on Carpenter's Report that He Witnessed Hill Commit a Traffic Infraction to Justify a Traffic Stop Was Lawful.
Austin did not observe Hill commit any traffic infractions, but rather based the traffic stop on word from Carpenter that he had observed Hill commit a traffic infraction. Federal appellate courts have held that "effective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another." United States v. Robinson, 536 F.2d 1298, 1299 (9th Cir. 1974). Furthermore, "officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information." Id. Thus, according to the "collective-knowledge" doctrine, the knowledge of an officer who acts may be substituted by the knowledge of an officer who instructs. United States v. Massenburg, 654 F.3d 480, 493 (4th Cir. 2011). The Virginia Court of Appeals, citing Massenburg in its analysis, recently upheld this principle, holding that "the collective knowledge doctrine 'preserves the propriety of the stop' and avoids crippling restrictions on our law enforcement." Edmond v. Commonwealth, 66 Va. App. 490, 503, 788 S.E.2d 277, 284 (2016) (quoting United States v. Lyons, 687 F.3d 754, 766 (6th Cir. 2012)).
In the instant case, Carpenter, who was in an unmarked police vehicle, transmitted over the radio that he needed a marked police vehicle to conduct a stop of Hill's vehicle. He indicated that he had witnessed Hill commit a traffic infraction, which justified a traffic stop. Given this information, Austin had to swiftly locate the Vehicle in order to conduct the stop. Austin could not "be expected to cross-examine" Carpenter on whether he actually had appropriate justification for the stop. Austin's reliance on Carpenter having reasonable articulable suspicion to stop the Vehicle therefore was lawful.
2. Carpenter's Decision to Follow Hill's Vehicle After It Left the Surveilled House to Await a Potential Traffic Infraction Was Lawful.
The Commonwealth essentially admits that Hill's actions at the surveilled house did not rise to the level of reasonable articulable suspicion, which is why Carpenter elected to follow the Vehicle—with the hope that Hill would commit a traffic infraction. The United States Supreme Court has held that "the constitutional reasonableness of traffic stops [does not] depend[] on the actual motivations of the individual officers involved." Whren v. United States, 517 U.S. 806, 813 (1996). Thus, an arrest for a traffic violation is not "rendered invalid by the fact that it was 'a mere pretext for a narcotics search.'" Id. (quoting United States v. Robinson, 414 U.S. 218, 221 n.1 (1973)). In sum, "the[] principal basis—which applies equally in attempts to reach subjective intent through ostensibly objective means—is simply that the Fourth Amendment's concern with 'reasonableness' allows certain actions to be taken in certain circumstances, whatever the subjective intent." Id. at 814.
Hill places great emphasis on the coincidental pretext behind the traffic stop; however, he does not contest that he actually committed the traffic infraction Carpenter alleged was the basis for the stop. Thus, even if Carpenter followed Hill hoping that he would commit a traffic infraction—only because of Hill's connection to the surveilled drug house—the stop nevertheless was lawful because there was a valid, objective reason for the stop.
3. The Officers Were Permitted to Stop Hill Based on the Traffic Infraction After He Had Parked and Exited the Vehicle.
Austin's body camera video makes it clear that Austin did not activate his patrol car siren or emergency lights to stop Hill. Rather, by the time Austin located the Vehicle, Hill had already parked, exited, and locked it in the driveway of what he claimed was his grandfather's house.
"As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren v. United States, 517 U.S. 806, 810 (1996). "[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).
There is no constitutional requirement that an offender be arrested the moment probable cause to arrest is established. Probable cause in the context of an arrest grows stale only if it emerges that it was based on subsequently discredited information. In short, although probable cause for a search may grow stale, probable cause to arrest, once formed, will continue to exist for the indefinite future, as long as no intervening exculpatory facts come to light. Finally, these principles are consistent with the fact that when probable cause exists, the timing of an arrest is a matter that the Constitution almost invariably leaves to police discretion.Hairston v. Commonwealth, 67 Va. App. 552, 565-66 (2017).
Here, Austin stopped Hill shortly after receiving reliable information from Carpenter that Hill was observed committing a traffic infraction. Of note, Austin did not delay in pursuing the stop, but rather immediately attempted to locate the Vehicle to facilitate the stop. Under the circumstances, the probable cause to stop Hill did not grow stale, and the stop for the traffic infraction was lawful. B. The Officers Did Not Have Probable Cause to Enter the Vehicle to Retrieve the Observed Firearms.
"The plain view doctrine is an exception to the general rule that warrantless searches and seizures are presumptively unreasonable." Vaughn v. Commonwealth, 53 Va. App. 643, 648, 674 S.E.2d 558, 560 (2009), vacated in part, 279 Va. 20 (2010).
"[O]fficers may seize evidence in plain view, provided that they have not violated the Fourth Amendment in arriving at the spot from which the observation of the evidence is made." Kentucky v. King, 563 U.S. 452, 463 (2011). "[I]t is . . . an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed." Horton v. California, 496 U.S. 128, 136 (1990).
What the "plain view" cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification—whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused—and permits the warrantless seizure.Id. at 135-36.
The fact that a firearm is observed is not sufficient alone for a police officer to seize the item. "[I]n order to invoke the 'plain view' doctrine, the police must have had probable cause to believe that the evidence seized was a seizable item, i.e., contraband, the fruit or tools of a crime, or other evidence of a crime." Delong v. Commonwealth, 234 Va. 357, 365, 362 S.E.2d 669, 673 (1987). The United States Supreme Court has characterized probable cause as "a flexible, common-sense standard." Texas v. Brown, 460 U.S. 730, 742 (1983).
[Probable cause] merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false.Id. (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)).
In Commonwealth v. Simpson, officers were monitoring a motel known for illicit drug activity when they observed a car with two occupants enter the motel's parking lot, stay for approximately five minutes, and depart. No. 1348-16-4, 2017 Va. App. LEXIS 9, at *2 (Jan. 17, 2017). One officer suspected that the vehicle was involved in a drug transaction while in the parking lot. Id. The officers followed the vehicle and subsequently conducted a traffic stop based on a cracked windshield and an object hanging from the rearview mirror. Id. The driver exited the vehicle and spoke with the officer. Id. Another officer arrived at the scene, discovered that the passenger/defendant was wanted in another county, and asked him to step out of the vehicle so that he could detain him, leaving the passenger door open. Id. A third officer arrived at the scene and observed "a possible weapon or gun in the vehicle." Id. The first and third officer discussed the object and shined a flashlight on it. Id. at *2-3.
As is appropriate, the Court does not consider the unpublished Court of Appeals Opinion to hold precedential value. The Court instead considers the rationale offered by the Court of Appeals to the extent that the Court finds it persuasive, which is permissible. See Va. Sup. Ct. R. 5.1(f); Fairfax Cty. Sch. Bd. v. Rose, 29 Va. App. 32, 39 n.3, 509 S.E.2d 525, 528 n.3 (1999) ("[A]lthough an unpublished opinion . . . has no precedential value, . . . a court . . . does not err by considering the rationale in adopting it to the extent it is persuasive.").
Based on the partially obscured location of the firearm, the first officer concluded there was probable cause to believe that the defendant was carrying a concealed weapon. Id. at *3. The officer then removed the firearm from the vehicle and later learned that the defendant was a convicted felon. Id. The circuit court granted the defendant's subsequent motion to suppress because "the plain view doctrine did not justify the seizure," and "the seizure violated [the defendant's] constitutional rights." Id. at *4. On appeal, the Virginia Court of Appeals upheld suppression of the evidence, finding that probable cause to seize a firearm in a vehicle during a traffic stop did "not flow from any of the surrounding circumstances of the traffic stop" when the law enforcement officers "only thought that the vehicle and its occupants were suspicious by virtue of its brief stop at a place where drug transactions were known to take place." Id. at *12-13. The Court held that
because the weapon was not discovered in plain view and no evidence was presented that could lead a person of reasonable caution to believe that [the defendant] was a convicted felon at the time of the weapon's seizure or that the weapon itself constituted evidence of a crime, and because [the defendant] was not arrested until after the gun was seized and manipulated by [the officer] at a time when no independent probable cause existed for doing so, we conclude that the judgment of the circuit court granting [the defendant's] motion to suppress was not error.Id. at *19.
In the instant case, Hill had exited the Vehicle—which was parked in a driveway—when Austin initiated the traffic stop. Hill had no weapons on his person, but Austin observed firearms on the Vehicle's front seat with all Vehicle doors closed and locked. When asked for identification, Hill provided Austin with his driver's license and a concealed weapons permit, which appeared to be valid. Another officer on scene subsequently called in Hill's information to police headquarters and verified that Hill was not a convicted felon, although this occurred only after the search of the Vehicle was underway.
Of note, Hill was not concealing or attempting to conceal a firearm. The Court nevertheless finds the existence of the concealed weapons permit pertinent in reviewing the totality of the circumstances as viewed by the officers during the traffic stop.
In considering these facts, the Court finds that "a man of reasonable caution and belief would not consider the firearms to be illegal. Although the law does not require an officer's belief that an item is contraband be correct under the plain view exception, it does require that it be reasonable. Although a concealed weapons permit was not required for Hill to legally open carry the firearms, it did provide the officers some information to conclude that he possessed the firearms in the Vehicle lawfully. Nevertheless, the officers did their due diligence and verified that Hill was not a convicted felon and did not have any restrictions regarding his ability to carry the firearms, albeit after the search began. With that information, the officers had no reason to believe that the items were contraband.
In addition to his plain-view exception claim, Austin contends that safety concerns regarding the firearms justified retrieving them from the Vehicle. However, the United States Supreme Court has held that police are authorized "to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." Arizona v. Gant, 556 U.S. 332, 343 (2009). The Gant Court further noted that "[b]ecause officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee's vehicle remains." Id. at 343 n.4.
Although Gant involved safety concerns related to an arrest, the Court's holding is instructive here. Similar to a situation involving an arrestee, once the officers had Hill secured, there was no safety concern requiring a search. Furthermore, once the officers determined that Hill could own firearms legally, they had no probable cause to seize the firearms.
The officers therefore did not have probable cause to enter the Vehicle to seize the firearms and thus were not lawfully present in the Vehicle for that purpose. C. The Officers Did Not Have Probable Cause to Search the Vehicle.
In addition to the plain view doctrine, exigent circumstances in the form of a "plain smell" of distinctive odors may support probable cause for a warrantless search. Bunch v. Commonwealth, 51 Va. App. 491, 496, 658 S.E.2d 724, 726 (2008). "[I]f an officer smells the odor of marijuana in circumstances where the officer can localize its source to a person, the officer has probable cause to believe that the person has committed or is committing the crime of possession of marijuana." Id. (quoting United States v. Humphries, 372 F.3d 653, 660 (4th Cir. 2004)); see also Evans v. Commonwealth, 290 Va. 277, 285, 776 S.E.2d 760, 764 (2015) (holding that the odor of marijuana in conjunction with the contemporaneous knowledge of an occupant that the officer sensed the presence of marijuana—which may have provided incentive for the occupant to destroy evidence—was sufficient for probable cause). In sum, the plain smell doctrine essentially provides that smell can satisfy the probable cause requirement of the automobile exception. See Collins v. Commonwealth, 292 Va. 486, 498, 790 S.E.2d 611, 617 (2016) (citing Maryland v. Dyson, 527 U.S. 465, 466-67 (1999) (holding that the automobile exception is reserved for cases in which there are "facts that would justify the issuance of a warrant, even though a warrant has not been actually obtained"). Courts have upheld exigent circumstances searches based on the odor of marijuana in a number of cases.
In United States v. Cephas, the United States Court of Appeals for the Fourth Circuit found that probable cause existed based on "a strong odor of marijuana" emanating from an open apartment door. 254 F.3d 488, 496 (4th Cir. 2001). Similarly, in the automobile context, Fraierson v. Commonwealth involved an officer instructing a suspect who was sitting inside a vehicle to open the vehicle door. 2005 Va. App. LEXIS 135, *4-6 (Mar. 29, 2005). With the vehicle door open, the officer smelled burnt cocaine, and the court held that the officer had probable cause to believe there was cocaine in the vehicle. Id.
See supra note 2.
Although these cases establish that an odor of marijuana may be sufficient to support probable cause, "the presence of marijuana does not of itself authorize the police either to search any place or to arrest any person in the vicinity." Humphries, 372 F.3d at 659.
Additional factors must be present to localize the presence of marijuana such that its placement will justify either the search or the arrest. In the case of a search, when the odor emanates from a confined location such as an automobile or an apartment, we have held that officers may draw the conclusion that marijuana is present in the automobile or apartment.Id.
Similar to the cases discussed above, the officers in the instant case testified that they smelled marijuana emanating from the Vehicle during the traffic stop. If viewed in isolation, this factor might provide probable cause. In evaluating whether probable cause existed, however, the Court is tasked with analyzing the totality of the circumstances, rather than one distinct fact. See Cost v. Commonwealth, 275 Va. 246, 251, 657 S.E.2d 505, 507 (2008) (holding that in analyzing whether probable cause existed, a court must consider "the totality of the circumstances surrounding the search, as well as consider[] . . . the officer's knowledge, training and experience"). Thus, although case law demonstrates that an odor of marijuana can be sufficient for probable cause, probable cause is not determined by any specific element but rather by considering all "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Illinois v. Gates, 462 U.S. 213, 230-232 (1983).
In reviewing the totality of the circumstances, the Court finds that there are pertinent considerations beyond the officers' testimony regarding whether an odor of marijuana existed at the time of the stop. The first consideration is that when Austin initiated the traffic stop, the doors to the Vehicle were all closed. Unlike the officers in Cephas and Fraierson, who detected an odor of illicit drugs with open doors, the officers here indicate that they detected the odor through closed car doors. On this point, the Court also notes the misrecollection of the officers at the preliminary hearing, during which they testified that the doors to the Vehicle were open when they approached and detected the odor.
The preliminary hearing testimony in this regard clearly was inaccurate, as Austin's body camera video—which was available at the Hearing but not at the preliminary hearing—clearly shows that the Vehicle doors were closed and locked until Carpenter opened one to search the Vehicle.
The Court also notes the condition of the marijuana discovered within the Vehicle. Although it is disputed exactly where in the Vehicle the drugs were located, the marijuana recovered was enclosed in plastic bags and totaled approximately .44 pounds. There was no evidence of burnt marijuana in the Vehicle or on Hill's person. Given the weight of raw marijuana, the associated packaging, and the location where the marijuana was found, the Court finds it unlikely that a "strong odor" of marijuana would be detectable from outside the Vehicle or on Hill's person.
Another aspect of the traffic stop the Court considers is that at no time before the search of the Vehicle commenced did any of the officers mention an odor of marijuana. After asking Hill for consent to search the Vehicle, Austin told the other officers, "[H]e said no to the search. I told him I am still pulling out the AK[-47] and the 9 [mm], and I am running them because they are in plain sight." (Def.'s Ex. 2.) Notably, in discussing the basis for the search, Austin did not mention having smelled marijuana or any odor justifying a search. The fact that Austin asked for consent also implies that he did not believe he otherwise had probable cause to conduct the search. Furthermore, no other officers mentioned that they detected the odor, even after Austin stated that Hill declined to give consent. Instead, seconds after Austin discussed the lack of consent, Carpenter called a meeting in which he tells the other officers, "In this house there is supposed to be a lot of guns, alright, like a shit load. And marijuana, too. So it's, uh, try to like be both spread out, keep your eyes out, see what is going on. I'm gonna take a look inside the car and go from there." (Id.) During this meeting, Carpenter expressed his intention to search the Vehicle and disclosed to the other officers what information they had regarding the residence, but he did not mention any odor of marijuana. Rather, Carpenter's comments in response to hearing that Hill had not consented to a search of the Vehicle implied that Carpenter improperly based his search on seeing the firearms in plain view. Although an officer's subjective intent is not dispositive, it is a factor the Court considers.
At the preliminary hearing, Austin testified that he notified the other officers prior to the commencement of the Vehicle search that there was an odor of marijuana emanating from the Vehicle. After reviewing the footage of the body camera he was wearing during the stop, however, he acknowledged that he did not mention any odor until after Carpenter was already searching the Vehicle. Austin's body camera video documents that Austin walked up to Carpenter after Carpenter had commenced searching the Vehicle. It then shows Carpenter putting on evidence gloves and then inspecting the floorboard of the driver's side of the Vehicle. At the same time, Austin shines his flashlight inside the Vehicle in the vicinity of where Carpenter was searching, after which Austin says, "Oh, there was a 122 odor in there too, so, and on him." (Def.'s Ex. 2.)
Of note, this search took place on the driver's side of the Vehicle, as opposed to the passenger's side where the firearms were originally discovered.
A "122 odor" is police code to indicate a driver who is intoxicated, but Austin explained during the Hearing that the code is sometimes used interchangeably with code 174, which indicates marijuana has been located. (Tr. 71.)
Although the Court is cognizant that the officers believed they likely would find drugs in the Vehicle, the Court finds that, based on the totality of the circumstances, this belief rose only to the level of a hunch or suspicion based on the investigation; it had not yet risen to a level sufficient for probable cause. The record reveals that Carpenter and fellow investigators had been staking out a suspected drug house in an unmarked police vehicle when they witnessed Hill leave the house in the Vehicle. The investigators then followed Hill until they witnessed him commit a traffic infraction so that they could order a traffic stop. By the time Austin, in a marked police car, responded to the investigators' call and initiated the traffic stop, Hill had parked the Vehicle in the driveway of a house believed by Carpenter to contain drugs and firearms. At some point during the stop, the officers searched the Vehicle, which resulted in seizure of discovered marijuana. Based on the expectation of drugs in the two houses and the hindsight knowledge that drugs were found in the Vehicle, it is not surprising that the officers recalled smelling marijuana upon approaching Hill.
In its brief, the Commonwealth emphasizes Carpenter's testimony that he did not find any marijuana in the passenger compartment of the Vehicle. (Commonwealth's Resp. 5.) Although the Court recognizes that the body camera footage clearly shows Carpenter obtaining evidence gloves in apparent preparation to access something in the passenger compartment—and the certificate of analysis indicates two different recovered items determined to be marijuana—it is not dispositive that marijuana was not recovered from the passenger compartment, as the same lack of probable cause applies to the trunk.
The facts, as documented by Austin's body camera video, support the conclusion that Austin's and Carpenter's recollections were not accurate and that the two officers did not actually detect the odor of marijuana emanating from either Hill or the Vehicle. The officers testified at the preliminary hearing that the doors to the Vehicle were open and/or ajar when they approached and smelled the marijuana; however, the body camera footage proved this to be an incorrect recollection, as the doors actually were closed and locked. Similarly, they testified that Austin commented to other officers, before the search, that he smelled marijuana, but again, the body camera video proved this to be a misrecollection, as Austin did not mention the smell until Carpenter was already searching the Vehicle.
The Court notes that if the facts as testified in the preliminary hearing were actually true, the evidence would be consistent with the presence of a marijuana odor prior to the search. In contrast, nothing in Austin's interactions with Hill or any of the other officers indicated that he smelled marijuana at any point prior to observing Carpenter retrieving evidence gloves, ostensibly to recover contraband while searching the Vehicle. Austin asked Hill about the firearms, a wad of cash in his pocket, and the circumstances surrounding why he parked where he did, but at no point did he ask him any questions relating to drugs or an odor of drugs. Additionally, Austin asked Hill for consent to search the Vehicle, which Hill denied. As indicated previously, the Court views the request for consent to be consistent with a lack of a marijuana smell, as the odor of marijuana would have provided probable cause for the search and obviated the need for consent. Furthermore, when Austin reported to Carpenter and the other officers that Hill declined consent, Austin indicated that they could enter the Vehicle to retrieve the guns but did not mention having any other probable cause to search the Vehicle.
In reaching the conclusion it does today, the Court fully recognizes the many critical and time-sensitive decisions law enforcement officers make on scene and the difficulty law enforcement officers might encounter recalling the details of their work as a result of stress, their case load, and the passage of time. Furthermore, eyewitness testimony—including that of law enforcement officers—understandably is not always reliable and is subject to human error. The Court appreciates that in cases involving officers conducting their everyday law enforcement duties, it can be difficult to recall the specifics of a given incident at a hearing conducted over a year later, as the officers were asked to do in this case. That said, the Court is tasked with ensuring that—although officers may be well-intentioned as they enforce the law—any overzealous efforts be kept in check by the Fourth Amendment as law enforcement officers fulfill their duties.
The Court also recognizes that any misrecollection of facts may be caused or exacerbated by the officers' potential hindsight bias in light of the actual discovery of marijuana in the Vehicle. See Linda L. Carli, Cognitive Reconstruction, Hindsight, and Reactions to Victims and Perpetrators, 25 Personality & Soc. Psychol. Bull. 966, 977 (Aug. 1999), http://fliphtml5.com/agrb/jncx (opining, based on studies she conducted, that "hindsight bias does involve cognitive reconstruction, a rewriting of the events leading up to the outcome to make the outcome seem more plausible").
Examining the totality of the circumstances, the Court finds that the Commonwealth has failed to satisfy its burden of providing sufficient evidence of probable cause for the search. Instead, the evidence supports that the officers did not accurately recollect whether they detected an odor of marijuana. Although the law enforcement officers' testimony at the Hearing certainly is material, the Court considers this testimony along with the officers' testimony—including any inconsistencies—at the preliminary hearing, Austin's body camera video, and evidence recovered at the scene. Based on the totality of the circumstances, the Court finds that the officers' testimony at the Hearing—that they smelled marijuana before the search of Hill or the Vehicle—was an inaccurate recollection and that the search of the Vehicle, although supported by suspicion or a hunch of the officers, was not based on probable cause.
The Court therefore finds that the Commonwealth failed to satisfy its burden of proving that law enforcement officers had probable cause to search Hill's vehicle, and the search of the Vehicle therefore was unlawful. Consequently, any evidence recovered from Hill or the Vehicle—including the discovered marijuana—is excluded from these proceedings as fruit of the unlawful search.
Conclusion
Based on the foregoing, the Court GRANTS Hill's motion to suppress any evidence retrieved from the Vehicle or from his person. The Clerk's Office is directed to prepare an order consistent with this ruling and forward it to all counsel of record. Any objections shall be filed with the Court within fourteen days.
The Court notes that although Hill moved to suppress evidence found on his person—and the only evidence apparently found on his person and retrieved by law enforcement was cash in his pocket—neither Hill nor the Commonwealth made specific arguments regarding the admissibility of the cash. Inasmuch as the Commonwealth presented no evidence that the cash was anything other than fruit of the unlawful search of the Vehicle and Hill's related arrest, the cash is suppressed for purposes of the Motion. --------
Sincerely,
/s/
David W. Lannetti
Circuit Court Judge DWL/kml