Opinion
Docket No.: CR17-2836
07-06-2018
Re: Commonwealth of Virginia v. Lionel Williams, Jr.
Michelle Newkirk, Esquire Office of the Commonwealth's Attorney City of Norfolk 800 East City Hall Avenue, Suite 600 Norfolk, Virginia 23510 Daymen Robinson, Esquire 5900 East Virginia Beach Boulevard, Suite 416 Norfolk, Virginia 23502
Michelle Newkirk, Esquire
Office of the Commonwealth's Attorney
City of Norfolk
800 East City Hall Avenue, Suite 600
Norfolk, Virginia 23510 Daymen Robinson, Esquire
5900 East Virginia Beach Boulevard, Suite 416
Norfolk, Virginia 23502 Dear Counsel:
Today the Court rules on the Motion to Suppress (the "Motion") filed by Defendant Lionel Williams, Jr., in which he seeks to suppress any evidence "seized in violation of his freedom from unreasonable search and seizure." The specific issue before the Court is whether a handgun recovered from the living room of Williams's house by a police officer after Williams consented to a search of only two other rooms in the house should be suppressed. Because the officer was not conducting a protective sweep when he discovered the firearm and the handgun was not in plain view, as the officer was not in a constitutionally permissible position when he discovered it, the Court finds that the search of Williams's living room and subsequent seizure of the firearm were unlawful. The Court therefore GRANTS Williams's motion to suppress the handgun recovered from his house.
Background
Officers Yelen and Rieke of the Norfolk Police Department responded to a report of gunshots fired in the vicinity of a residence on Somme Avenue in the city of Norfolk. The officers went to the backyard of the residence, the direction from which the shots apparently were heard. While there, they heard the sound of a handgun slide being racked in a neighboring backyard on Vimy Ridge Avenue (the "Vimy Ridge Yard"), which was separated from the yard they were in by a chain-link fence, and subsequently saw two men in that yard. One was holding a box and the other appeared to be holding a handgun. Officer Yelen instructed the two individuals to not move while Officer Rieke proceeded around both houses to the Vimy Ridge Yard. The individual who appeared to be holding a handgun—who allegedly was Williams—fled the scene. One of the officers called for backup. Rieke detained the individual holding the box once he arrived at the Vimy Ridge Yard, and Yelen then went around the houses and joined Rieke. A few minutes later, with both officers now in the Vimy Ridge Yard, Williams was seen through a window in the Vimy Ridge house and then emerged into the backyard where the officers were.
Williams alleges throughout the officers' on-site investigation that he is not the individual who was holding the firearm but rather was inside the home until the officers witnessed him emerge from the back door.
An officer handcuffed Williams after a scuffle that left Williams on the ground. A handgun magazine was discovered on the ground under Williams, and four shell casings were discovered elsewhere in the Vimy Ridge Yard. At some point, additional officers reported to the scene. One of the officers confronted Williams and questioned him about the alleged handgun, commenting that he had seen Williams through the window and implying that Williams might have hidden the handgun in that room (the "First Room"). Williams admitted that he lived in the Vimy Ridge house. Rieke asked Williams for consent to search the First Room, and Williams consented. Officer Rieke and another officer followed Williams from the backyard, through the backdoor, across the kitchen and dining room, and into the First Room. Officer Yelen followed the same path a short time later to assist in the search. No contraband was found in the First Room. One of the officers then asked Williams for consent to search his bedroom (the "Bedroom"), and Williams consented. No contraband was found in the Bedroom. While the others were in the Bedroom, Yelen wandered outside the Bedroom approximately four steps into the adjoining dining room, placing him at the opposite end of the room from where the group had entered from the backdoor. He shined his flashlight around the unlit adjacent living room and spotted a handgun in plain view near the front door.
At some point, the wife or girlfriend of one of the individuals emerged from the house into the backyard. Both she and the man who had been holding the box were instructed to remain in the backyard, which they did for the duration of the search of the house.
There was no solid wall between the dining room and the living room; instead, there was a permanent room divider that extended about a foot from the adjacent walls, allowing Officer Yelen to shine his flashlight into most areas of the living room while standing in the dining room. It appears from the body camera footage that all lights in the living room and dining room were off.
Williams subsequently filed a motion to suppress introduction of the discovered handgun at trial. A hearing (the "Hearing") on the motion was held on June 20, 2018. At the conclusion of the Hearing, the Court took the matter under advisement and allowed the parties to file post-hearing briefs. Williams filed a post-hearing brief, but the Commonwealth did not.
Position of the Parties
Williams's Position
Williams admits that he consented to a search of the First Room and the Bedroom, rooms in which no contraband was found. He argues that "[d]uring the search of the bedroom by all of the officers present, Officer Yelen, without announcement, abandoned his individual search, and with his flashlight on, [went] into the darkened areas of the dining room." (Def.'s Memo. in Supp. of Mot. to Suppress 2.) He asserts that Yelen then "took several steps to his right—the opposite direction from where he entered the home—and shined his flashlight into the darkened living room, which illuminated a firearm laying on the floor, next to the front door." (Id.) Williams argues that "[n]othing [Williams] said can be construed . . . to allow entry or search of the room closest to the front door." (Id. at 3.)
Williams contends that the plain view exception to the warrant requirement is inapplicable. (Id. at 3-5.) He argues that Officer Yelen "had left the area where [Williams had] given consent to search" and that Williams "was in another area of the house, handcuffed, with two other Officers" when the handgun was discovered. (Id. at 4.) Williams therefore asserts that "Yelen had no legal justification to be in the place he was when he viewed the firearm laying on the floor of [Williams's] home." (Id. at 5.)
The Commonwealth's Position
The Commonwealth's argument is twofold. First, it asserts that Officer Yelen was in Williams's home pursuant to Williams's consent, and the handgun was seized while in the officer's plain view. Second, the Commonwealth asserts that Yelen was permitted to go beyond the two rooms Williams consented to be searched—and the pathway Williams led them on to and from those rooms—in order to conduct a protective sweep of the premises, and the handgun was in plain view during the protective sweep.
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)).
Generally, "[t]he plain view doctrine provides that no reasonable expectation of privacy attaches to objects exposed to plain view." Gibson v. Commonwealth, 50 Va. App. 744, 749, 653 S.E.2d 626, 628 (2007). "Thus, police observation of objects in plain view does not implicate the Fourth Amendment so long as the police are legitimately in the place where they viewed the objects." Id.
In 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."Hamlin v. Commonwealth, 33 Va. App. 494, 502, 534 S.E.2d 363, 367 (2000) (quoting Conway v. Commonwealth, 12 Va. App. 711, 718, 407 S.E.2d 310, 314 (1991)).
"[S]earches made by the police pursuant to a valid consent do not implicate the Fourth Amendment." McNair v. Commonwealth, 31 Va. App. 76, 82, 521 S.E.2d 303, 306 (1999). However, "[t]he government may not exceed the boundaries of the consent, and any evidence gathered beyond those boundaries must be excluded." Bolda v. Commonwealth, 15 Va. App. 315, 319, 423 S.E.2d 204, 207 (1992) (quoting United States v. Martinez, 949 F.2d 1117, 1119 (11th Cir. 1992)). "When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given." Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968). "This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority." Id.
Another recognized exception to the warrantless search prohibition is a protective sweep, which "permits the police to conduct a limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief, based on specific and articulable facts, that the area to be swept harbors an individual posing a danger to those on the arrest scene." Commonwealth v. Robertson, 275 Va. 559, 564, 659 S.E.2d 321, 324 (2008) (citing Maryland v. Buie, 494 U.S. 325, 337 (1990); Megel v. Commonwealth, 262 Va. 531, 536, 551 S.E.2d 638 (2001)). This "reasonableness determination" is analyzed "from an objective, rather than subjective, perspective." Commonwealth v. Marzuq, 2000 Va. App. LEXIS 489, at *7 n.4 (June 29, 2000) (citing Whren v. United States, 517 U.S. 806, 817 (1996)). "The rationale for the protective sweep exception is that a dangerous person could be hiding in the home and attack the officer." Robertson, 275 Va. at 564, 659 S.E.2d at 324. (citing Buie, 494 U.S. at 333). A protective sweep justifies the warrantless search of a home because it is a "quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." Buie, 494 U.S. at 327.
The Court does not consider unpublished Court of Appeals opinions to hold precedential value. The Court instead considers the rationale offered by the Court of Appeals to the extent the Court finds it persuasive, which is permissible. See Va. Sup. Ct. R. 5A:1(f); Fairfax Cty. Sch. Bd. v. Rose, 29 Va. App. 32, 39 n.3, 509 S.E.2d 525, 528 n.3 (1999).
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. Officer Yelen Was Not Conducting a Protective Sweep of Williams's Home.
The Commonwealth asserts that, in searching the dining room and living room of Williams's house, Officer Yelen was conducting a protective sweep of the house. The Court disagrees.
"[T]he Commonwealth has the heavy burden of establishing an exception to the warrant requirement." Megel v. Commonwealth, 262 Va. 531, 534, 551 S.E.2d 638, 640 (2001). A protective sweep of a house is constitutionally permissible because it is a "quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." Maryland v. Buie, 494 U.S. 325, 327 (1990) (emphasis added). The United States Supreme Court therefore has made it clear that a protective sweep is not a full search of the premises but rather is "narrowly confined to a cursory visual inspection of those places in which a person might be hiding" and should only be conducted when an officer possesses a "reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." Id. at 337. Such a sweep should last "no longer than is necessary to dispel the reasonable suspicion of danger and . . . no longer than it takes to complete the arrest and depart the premises." Id. at 335-36.
In cases in which "there were no articulable facts to indicate that [the suspect's] home harbored anyone posing a danger to the individuals present at the arrest scene," the Supreme Court of Virginia has held that the protective sweep exception does not apply. Commonwealth v. Robertson, 275 Va. 559, 564-65, 659 S.E.2d 321, 325 (2008). The Virginia Court of Appeals followed this reasoning in finding a protective sweep unlawful when the officers had no reason to conduct a protective sweep upon entering a suspect's home, the circumstances after their entry did not change their perception, and the officers only decided to conduct the protective sweep "after the limited purpose for the entry had been accomplished, i.e., retrieving the [arrestee's] shoes." Gonzales v. Commonwealth, 2016 Va. App. LEXIS 105, at *14-15, 17-18 (Apr. 5, 2016).
See supra note 4.
Of note, although the protective sweep exception to the search warrant requirement is defined in the context of an in-home arrest, cases like Gonzales indicate that a protective sweep also can be justified in situations where a person has been arrested outside the home. See, e.g., Robertson, 275 Va. at 564-65, 659 S.E.2d at 325; Williams v. Commonwealth, 49 Va. App. 439, 448-55, 642 S.E.2d 295, 299-302 (2007); Gonzales, 2016 Va. App. LEXIS 105, at *14-15. Furthermore, the Court of Appeals has held that an individual need not be under arrest for a protective sweep to be admissible as long as the officer is lawfully within the home being swept. Conway v. Commonwealth, 12 Va. App. 711, 721-22, 407 S.E.2d 310, 315-16 (1991).
The parties did not offer any evidence or argument regarding whether Williams was under arrest at the time of the house search, although the body camera footage shows an officer informing Williams that he was just being detained and was not under arrest. Recognizing that the Court of Appeals has upheld protective sweeps when a suspect is not under arrest, however, the Court need not resolve this issue.
Similar to the facts in Gonzales, the officers in the instant case entered Williams's home for the limited purpose of conducting a consensual search of the First Room and, subsequently, the Bedroom. Officers Yelen and Rieke both testified at the Hearing that they did not believe there was anyone in the Vimy Ridge house immediately prior to entering for the search. There also is no evidence that, upon entry into the home, the officers actually conducted a protective sweep or viewed any need to conduct such a sweep. In fact, the body camera footage shows the officers proceeding to and searching the two rooms seemingly without concern that anyone else was in the house. Upon entry into the house, the officers proceeded directly to the two rooms Williams had consented to be searched and confined themselves to those rooms, until Yelen left the group to go into the dining room and then the living room.
Based on these facts, the Court finds that there is no evidence that the officers had—or should have had—an objectively "reasonable belief . . . that the area to be swept harbor[ed] an individual posing a danger." See Buie, 494 U.S. at 327. The officers neither conducted a protective sweep nor had reason to conduct a protective sweep. Under the circumstances, the Court finds that the officers' assumption that there was no one else in Williams's house at the time of the search was reasonable and is what a reasonable officer would have concluded. The protective sweep exception to the warrant requirement therefore is not applicable to the discovery and seizure of the firearm. B. Officer Yelen's Use of a Flashlight to Aid His Vision Was Consistent with the Plain View Doctrine.
Williams contends that Officer Yelen's shining of his flashlight into a dark room within his home precludes illuminated items from coming within the plain view doctrine. The Court disagrees.
Prosecutors seeking to take advantage of the plain view doctrine normally are presented facts involving a law enforcement officer observing something in plain view under ambient lighting conditions. Here, however, there were no lights on in the dining room or living room of Williams's home when the officers conducted the consent search, and Officer Yelen admitted at the Hearing that he would not have seen the handgun without using his flashlight. The Court therefore must determine whether the use of a flashlight is permissible within the plain view warrantless search exception.
The United States Supreme Court has held that use of a flashlight, in and of itself, does not constitute an unlawful search, opining that "the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection." Texas v. Brown, 460 U.S. 730, 740 (1983). The Virginia Court of Appeals ruled similarly on a case in which a flashlight was used to expose what was otherwise not in plain view on an individual's person, holding that the illumination was not a violation of the Fourth Amendment. Gibson v. Commonwealth, 50 Va. App. 744, 753-54, 653 S.E.2d 626, 630-31 (2007). In doing so, the court noted that use of a flashlight is distinguishable from the thermal imager used in Kyllo v. United States, 533 U.S. 27 (2001), stating that "[t]here is an enormous difference between a thermal imager detecting infrared radiation and a flashlight aiding the naked eye." Id. at 753 n.3, 653 S.E2d at 630 n.3.
The Court finds that although Gibson involved a search of a suspect's person, the fact that the Court of Appeals distinguishes Gibson from Kyllo—a case involving a home—is instructive. The United States Supreme Court in Kyllo held that use of a Thermovision imaging device violated the Fourth Amendment because "[w]here . . . the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant." Kyllo, 533 U.S. at 40 (emphasis added).
The United States Court of Appeals for the Fourth Circuit issued a similar holding in reference to officers using a flashlight within a home. See Talman Caldwell v. Rubbo, 1993 U.S. App. LEXIS 20412, at *3-4 (Aug. 10, 1993). In that case, the court "conclude[d] that the officers were lawfully in the living room pursuant to the warrant for [the defendant's] arrest, and they did no more than observe what was in plain view from the living room." Id. It further opined that "[t]he fact that [the officers] used a flashlight did not render their actions unreasonable." Id. at *5 (citing United States v. Dunn, 480 U.S. 294, 305 (1987)).
Officer Yelen acknowledged that he would not have been able to see the handgun without the use of his flashlight. Had the room been lit by some other form of natural or artificial light, however, the flashlight would have been unnecessary, as Yelen did not need to manipulate any objects in order to view the firearm. Based on these facts, had the room been otherwise lit, the existence of the firearm would "have been [ ]knowable without physical intrusion" and subject to plain view. Kyllo, 533 U.S. at 40.
Additionally, the Kyllo Court specifically noted that the device used to implicate the Fourth Amendment was "a device that is not in general public use." Id. (emphasis added). Unlike a Thermovision device, an ordinary flashlight is frequently used by the general public. As such, the Court finds that Officer Yelen's use of a flashlight in and of itself did not implicate Fourth Amendment protections. C. Officer Yelen Was Not in a Constitutionally Permissible Location When He Discovered the Handgun.
Williams argues that, in straying from the Bedroom and deviating from the path on which the officers had taken to access the First Room and the Bedroom, Officer Yelen went beyond the areas consented to be searched. Williams asserts that Yelen therefore was not in a constitutionally permissible position when he discovered the handgun by the front door of his home. The Court agrees.
"[S]earches made by the police pursuant to a valid consent do not implicate the Fourth Amendment." McNair v. Commonwealth, 31 Va. App. 76, 82, 521 S.E.2d 303, 306 (1999). However, "[t]he government may not exceed the boundaries of the consent, and any evidence gathered beyond those boundaries must be excluded." Bolda v. Commonwealth, 15 Va. App. 315, 319, 423 S.E.2d 204, 207 (1992) (quoting United States v. Martinez, 949 F.2d 1117, 1119 (11th Cir. 1992)). The standard by which the scope of a suspect's consent is measured is one of "'objective' reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Brooks v. Commonwealth, 282 Va. 90, 95, 712 S.E.2d 464, 467 (2011) (quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991)); see also Grinton v. Commonwealth, 14 Va. App. 846, 851, 419 S.E.2d 860, 862 (1992) ("The scope of a person's consent is determined by whether it is objectively reasonable for the police to believe that the consent permitted them to search where they did.").
Although a law enforcement officer who enters a home with the resident's implied or express consent need not have a warrant, it is the prosecution's burden to establish consent was given, and "this burden is heavier where the alleged consent is based on an implication." Walls v. Commonwealth, 2 Va. App. 639, 645, 347 S.E.2d 175, 178 (1986). Consent "must be unequivocal, specific and intelligently given . . . and it is not lightly to be inferred." Jean-Laurent v. Commonwealth, 34 Va. App. 74, 78-79, 538 S.E.2d 316, 318 (2000). It is the law enforcement officer's obligation to obtain consent to search, rather than the obligation of the individual being searched to affirmatively deny consent. Lawrence v. Commonwealth, 40 Va. App. 95, 103, 578 S.E.2d 54, 58 (2003).
In Henderson v. Commonwealth, the Court of Appeals addressed a homeowner's implied consent to members of the public to use the pathway to his front door. 2013 Va. App. LEXIS 44 (Feb. 5, 2013). The Court held that the same implied consent applicable to members of the general public is "extended to police officers who enter the curtilage and, while on the premises, [officers must] restrict their conduct to those activities reasonably contemplated by the homeowner." Id. at *15 (quoting Robinson v. Commonwealth, 47 Va. App. 533, 546, 625 S.E.2d 651, 657 (2006)). As such, "when police enter onto private property . . . and restrict their entry to places that other visitors would be expected to go, such as walkways, driveways, or porches, any observation made from these areas is permissible under the Fourth Amendment." Id. (quoting Robinson v. Commonwealth, 47 Va. App. at 547, 625 S.E.2d at 657). The court further held that a police officer "clearly exceeded the implied consent doctrine . . . by deviating from the invited path to the front door" to view heat pumps in the yard of a private residence. Id. at * 16.
See supra note 4.
As discussed above, it is undisputed that the officers in this case—including Officer Yelen—had explicit consent to search only the two rooms specifically discussed during the conversation between Williams and the officers. The Court recognizes that, in leading the officers to the rooms by the only logical path available to access the rooms, Williams impliedly consented to the officers being present on that path. Williams did not, however, explicitly consent to any location beyond those two rooms, and the Commonwealth has presented no evidence to satisfy its "heavier" burden that the implied consent should "deviat[e] from the invited path" Williams and the officers walked to access the two rooms.
Despite the limited scope of consent, Officer Yelen left from the entrance to the Bedroom—while the other officers searched that room—and took approximately four steps beyond the implied-consent path traversed to get to the two rooms searched. Of note, the area adjacent to the front door was not visible from either of the two rooms Williams consented to be searched, and there is no evidence that Yelen would have been able to view the firearm from the pathway taken to get to the rooms had he shined his flashlight toward the front door. Yelen could see the firearm only after he moved beyond the scope of consent. As courts have repeatedly held, Yelen must have been lawfully in the place in which he viewed the firearm for the plain view exception to the warrant requirement to apply. Consistent with Henderson, the Court holds that an observation beyond a path of express or implied consent cannot constitute a lawful position from which the plain view exception to the warrant requirement can apply.
Although Officer Yelen testified that he thought Williams consented to a search of the entire house, the Court finds that his understanding is not objectively reasonable based on the conversation Williams had with the officers. See Brooks v. Commonwealth, 282 Va. 90, 95, 712 S.E.2d 464, 467 (2011) (citing Florida v. Jimeno, 500 U.S. 248, 251 (1991)). --------
The Court therefore finds that the Commonwealth failed to meet its burden of proving that Officer Yelen's position from which he viewed the firearm was one to which Williams consented.
Conclusion
Based on the foregoing, Officer Yelen was not conducting a protective sweep when he discovered the firearm, and—although flashlight illumination is consistent with the plain view doctrine—the handgun was not in plain view because Yelen was not in a constitutionally permissible position when he discovered it. Thus, the Court finds that the search of Williams's living room and subsequent seizure of the firearm were unlawful. The Court therefore GRANTS Williams's motion to suppress the handgun discovered in his home.
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.
Sincerely,
/s/
David W. Lannetti
Circuit Court Judge DWL/kml