Opinion
Record No. 1917-93-4
March 8, 1994
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY THOMAS S. KENNY, JUDGE.
Robert B. Condon, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellant.
Kathleen A. Brown for appellee.
Present: Judges Baker, Barrow and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Robert D. Moyer was indicted for possession with intent to distribute cocaine in violation of Code § 18.2-248. The trial court suppressed the cocaine seized from Moyer on the ground that it was discovered as the result of an illegal search. On appeal, the Commonwealth argues that notwithstanding the initial unreasonable search, the evidence would inevitably have been discovered through lawful means and, as such, should not have been suppressed. Because we find no evidence in the record to support a finding of inevitable discovery, we affirm the trial court's suppression order.
BACKGROUND
At approximately 12:45 a.m. on April 13, 1993, Fairfax City Police Officer Mraz observed Moyer drive through a red light. When Officer Mraz pulled his vehicle behind Moyer's car and activated his emergency equipment, he saw Moyer reach down and appear to place something between the front seats. When Moyer stopped, Officer Mraz shined his flashlight into the car in an attempt to determine what Moyer had placed between the seats. However, because of a lot of "stuff thrown about," he was unable to see the item. When Officer Mraz approached Moyer, he detected a strong odor of alcohol. As a result, Officer Mraz requested Moyer to get out of his vehicle in order to conduct a field sobriety test.
Moyer said that he would exit from the passenger side, because the driver's door had been damaged. As Moyer crawled head first across to the passenger's side of the car, Officer Mraz saw Moyer reach down, pick something up, and place it in the right front pocket of the jacket he was wearing. Officer Mraz was unable to determine the nature of the object.
After Moyer got out of the car, he stood along the passenger side of the car with his hands in his jacket pockets. Officer Mraz, concerned that the object Moyer picked up could have been a weapon or drugs, asked Moyer, at least twice, to take his hands out of his pocket and place whatever he had in his pocket on top of the vehicle. When Moyer did not comply, Officer Mraz drew his service revolver and ordered him to place both his hands on the vehicle. After Moyer did so, Officer Mraz reached directly in Moyer's right jacket pocket and removed a baggie containing eleven individual packets of cocaine. Officer Mraz handcuffed Moyer and placed him in the back of his police cruiser. After searching Moyer's vehicle, Officer Mraz got Moyer out of the police cruiser, removed the handcuffs and had Moyer perform field sobriety tests. At the completion of the tests, Officer Mraz placed Moyer under arrest for driving while intoxicated.
In ruling on Moyer's motion to suppress, the trial judge stated:
I'm going to grant the motion to suppress. . . . [A] pat down is required, under these circumstances. And that the officer did not conduct that, in this case. I know there was — I accept that there was a reasonable basis for the stop.
I will also accept that there was a reasonable — and I will so find — that there was a reasonable basis for the officer to be concerned that the Defendant might have a weapon in his clothing.
And I, certainly, accept that the officer would be nervous. I would be, believe me, a lot more nervous than the officer would have been, if I were in these circumstances.
However, I believe that the officer left out the critical step of the pat down. I don't think that he can just immediately go in and start emptying pockets or doing a search of somebody's clothing like that, without having taken that extra step of a pat down, to see if there is anything in his pocket that does feel like a weapon.
* * * * * * *
The ironic part of this is the man was going to be arrested for D.W.I., anyway. And the car would have been searched or he would have been searched at the Adult Detention Center.
The Commonwealth's attorney responded: "Then the argument is, Your Honor, at that point in time, then he's, eventually, going to be searched anyway. . . . That it would have been found through a lawful search." In rejecting this argument, the trial court stated:
The purpose of the exclusionary rule, though, is not to determine whether or not something would have been, ultimately, allowable into evidence, if it had been properly seized.
The purpose of the exclusionary rule is to discourage the police from conducting inappropriate searches, to begin with.
That's the whole intention of it. And, while the result in this particular case is that something that was, in fact, a crime is going to go unpunished, that's the result that's going to obtain here.
The legality of the initial traffic stop was not challenged by Moyer. The Commonwealth's evidence concerned only the circumstances surrounding the seizure and search of Moyer. The record fails to disclose any evidence regarding standard arrest or search procedures employed by the Fairfax City Police Department in drunk driving cases.
INEVITABLE DISCOVERY
When reviewing the ruling on a suppression motion, we consider the evidence most favorably to the prevailing party below. "The judgment of a trial court sitting without a jury . . . will not be set aside unless . . . plainly wrong or without evidence to support it." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). The burden to show reversible error rests upon the appellant, the Commonwealth in this instance.Reynolds v. Commonwealth, 9 Va. App. 430, 436, 388 S.E.2d 659, 663 (1990).
The Commonwealth argues that the trial court clearly erred when it refused to admit, under the "inevitable discovery" doctrine, the cocaine seized from Moyer. We disagree. In Nix v. Williams, 467 U.S. 431 (1984), the United States Supreme Court held that the fruits of an unconstitutional search should be admitted under the following conditions:
If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means . . . then the deterrence rationale [of the exclusionary rule] has so little basis that the evidence should be received.
Id. at 444.
In Walls v. Commonwealth, 2 Va. App. 639, 347 S.E.2d 175 (1986), we approved the following three-part test that the Commonwealth's evidence must satisfy for application of the inevitable discovery exception:
"(1) a reasonable probability that the evidence in question would have been discovered by lawful means but for the police misconduct, (2) that the leads making the discovery inevitable were possessed by the police at the time of the misconduct, and (3) that the police also prior to the misconduct were actively pursuing the alternative line of investigation."
Id. at 656, 347 S.E.2d at 185 (quoting United States v. Cherry, 759 F.2d 1196, 1204 (5th Cir. 1985) (other citations omitted)). It is well settled that the Commonwealth has the burden of establishing the applicability of the exception. See,e.g., Warlick v. Commonwealth, 215 Va. 263, 208 S.E.2d 746 (1974); Keeter v. Commonwealth, 222 Va. 134, 278 S.E.2d 841,cert. denied, 454 U.S. 1053 (1981). In the case at bar, the Commonwealth failed to present any evidence to support a finding that there was "a reasonable probability that the evidence in question would have been discovered by lawful means but for the police misconduct." Walls, 2 Va. App. at 656, 347 S.E.2d at 185. The only evidence presented by the Commonwealth relevant to the issue of inevitable discovery was that Moyer was given a field sobriety test and was later arrested for driving while intoxicated. No evidence or argument was presented regarding the normal course of police investigation and procedures in cases of this nature.
For the reasons set forth above, we conclude that there is insufficient evidence to satisfy the application of the inevitable discovery exception. Accordingly, we affirm the trial court's suppression order.
Affirmed.