Opinion
Record No. 0278-91-2
September 29, 1992
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY JOHN F. DAFFRON, JR., JUDGE.
Aubrey R. Bowles, IV (Bowles Bowles, on brief), for appellant.
Thomas C. Daniel, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Benton, Willis and Elder.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Kevin Corbett, the appellant, was convicted by a jury of distribution of cocaine and conspiracy to distribute cocaine. He contends on appeal: (1) that the warrantless entry of his house was improper, (2) that no probable cause supported the issuance of a search warrant, (3) that property not specifically listed in the search warrant was improperly seized, and (4) that he was unlawfully detained and interrogated, making his statement to the police involuntary. We find no error and affirm the judgment of the trial court.
On November 17, 1989, Investigator Hartman of the Chesterfield County Vice and Narcotics unit set up a surveillance of Dennis Halderman. Hartman had information that Halderman was involved in a potential drug transaction. The police followed Halderman from his residence to Chippenham Square apartment complex, where he stayed for fifteen minutes in 6101-B Cricklewood Drive. When Halderman left the apartment, the police followed him for six-tenths of a mile before stopping him. They seized three one-eighth ounce packages of cocaine from his person.
Halderman told the police that he had just purchased the cocaine from "Special K's" residence, 6101-B Cricklewood Drive, and that he planned to redistribute the drugs. Investigator Hutchinson, who was watching Corbett's home, 6101-B Cricklewood Drive, saw Corbett leave the residence. Hutchinson left the complex to inform the police to move Halderman out of view. As he was doing this, Hutchinson saw a "small gray car, with a black male inside," whom he believed to be Corbett, driving slowly toward the group. The police then decided to enter Corbett's residence without a search warrant because they believed he had seen them and any evidence would be destroyed.
Investigator Burgess testified that the police were admitted into Corbett's residence by Mrs. Corbett. The police made a sweep of the apartment to look for other people. When Corbett returned home, the police stopped him outside the apartment. Shortly thereafter, Investigator Hartman arrived and advised Corbett that he had a search warrant for the apartment. They went inside, where Corbett was advised of his Miranda rights. Corbett told the police that there was cocaine in his kitchen cabinet.
In addition to illegal drugs and drug paraphernalia, police seized various expensive items of personal property, which Corbett told them he had purchased and for some of which he had cash receipts. Corbett told the police that he earned $450 per week as a painter and that his wife earned "nothing much." Because of the presence of illegal drugs and drug paraphernalia and because of Corbett's report of modest family income, the police concluded that these luxury items had been purchased with money from drug dealing and seized them. They did not seize any items that Corbett identified as gifts.
Corbett first contends that the warrantless entry into his apartment was unlawful. A warrantless entry is justified if: (1) police officers have probable cause to believe evidence is on the premises; (2) delaying entry would create a substantial risk that evidence will be lost or destroyed or the critical nature of the circumstances prevents the use of any warrant procedure; and (3) the police are not responsible for creating their own exigencies. Crosby v. Commonwealth, 6 Va. App. 193, 201, 367 S.E.2d 730, 735 (1988) (footnotes omitted). Where there is a "substantial risk that evidence will be lost or destroyed" a limited security check of the premises for people who might destroy the evidence is warranted. Id. Corbett argues that the warrantless entry violates the first two requirements ofCrosby. We disagree.
The police had probable cause to believe contraband was on the premises. First, Halderman stated that he had driven straight from his house to 6101-B Cricklewood Drive and purchased cocaine. This information was corroborated by the police who followed him. Second, Halderman stated that he planned to redistribute the cocaine. This statement was against his penal interest. See United States v. Harris, 403 U.S. 573, 583-84 (1971).
The second requirement of Crosby was also met. When Investigator Hutchinson saw Corbett leave the apartment he went to warn the officers to take Halderman out of sight so that they would not be detected. However, as Hutchinson was doing this, he believed he saw Corbett drive by slowly. Believing that they were discovered, the police feared that Corbett would call home a warning and that the contraband would be destroyed. It was on this basis that they made the warrantless entry into the apartment. We agree with the trial court that, under those circumstances, the police were justified in securing the premises so that no evidence would be destroyed.
Corbett also argues that the police did not limit their initial warrantless intrusion to maintaining the status quo, but in fact made a search. "On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). Viewed thus, the evidence does not support Corbett's argument. The police officers testified that no search was made until the search warrant was obtained. We find no error in the trial court's determination that the police initially entered Corbett's residence merely to secure the premises and to preserve the status quo.
Corbett next contends that Halderman's statements did not provide probable cause for the issuance of a search warrant. We disagree. Halderman's reliability was established in two ways. First, his statement as to where he had just been was corroborated by police surveillance. Second, his statement that he planned to redistribute the drugs was against his penal interest. Manley v. Commonwealth, 211 Va. 146, 151, 176 S.E.2d 309, 313 (1970), cert. denied, 403 U.S. 936 (1971). The search warrant was properly issued.
Corbett next contends that luxury items taken from his apartment were not listed on the search warrant and were unlawfully seized. This contention is without merit. The items were seized pursuant to Code § 18.2-249, which permits the seizure of personal property traceable to a controlled substance exchange. Therefore, the seizure was lawful on its face. The proper method for contesting such a seizure is a petition for restoration or defense of the resulting forfeiture proceeding. Corbett has not contested the Commonwealth's continued possession of the seized property, either in this case or otherwise. The police concluded that Corbett's acknowledgment that he earned a modest income and that his wife earned "nothing much," together with the presence of illegal drugs and drug paraphernalia, was evidence that these luxury items had been purchased with the proceeds of illegal drug dealings. Corbett does not challenge the relevance and materiality of this evidence.
Finally, Corbett contends that he was unlawfully detained and interrogated, that his statement to the police concerning the cocaine was involuntary, and that the evidence found pursuant to his statement should, therefore, have been suppressed.
Whether a statement is voluntary is ultimately a legal rather than a factual question, but subsidiary factual questions are entitled to a presumption of correctness.
Williams v. Commonwealth, 234 Va. 168, 172, 360 S.E.2d 361, 364 (1987), cert. denied, 484 U.S. 1020 (1988) (citations omitted).
[I]t is clear that we must conduct an independent review of the question whether a confession is voluntary. However, in making that determination, we are bound by the trial court's subsidiary factual findings unless those findings are plainly wrong. We have consistently taken this approach.
Wilson v. Commonwealth, 13 Va. App. 549, 551, 413 S.E.2d 655, 656 (1992) (citations omitted).
Officer Hartman testified that he handed Corbett a copy of the search warrant and began the search. He stated that a few minutes later he read Corbett his Miranda rights and Corbett told him the location of the cocaine. The evidence supports the trial court's finding that Corbett was properly advised of his rights and knowingly and intelligently waived his right to remain silent. We find that his confession was voluntary.
For the foregoing reasons, the judgment of the trial court is affirmed.
Affirmed.
The search warrant of Kevin Corbett's residence was issued solely upon the basis of statements made to the police by Dennis Halderman, who was arrested while in possession of cocaine. No other facts or circumstances supported the issuance of the warrant. In my judgment, by elevating Halderman's statements to the level of information constituting probable cause, the majority, misapplies the "totality-of-the-circumstances" test mandated by the Supreme Court in Illinois v. Gates, 462 U.S. 213, 238 (1983).
Before the Supreme Court's decision in Gates, the two step test commonly known as the Aguilar-Spinelli test controlled probable cause determinations. This test required, first, that the informant's credibility and reliability be established and, second, that there be sufficient evidence of the informant's basis of knowledge for a judicial officer to conclude that there is a factual basis for the informant's allegations.See Spinelli v. United States, 393 U.S. 410 (1969). InGates, the Supreme Court replaced this two step analysis with a standard whereby probable cause is established by an examination of the "totality-of-the-circumstances." Whether probable cause exists is
a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before [the judicial officer], including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Gates, 462 U.S. at 238. Despite this change in the standard,Gates instructs that reliability, "`veracity' and 'basis of knowledge' of persons supplying hearsay information" are important factors in determining whether a warrant is supported by probable cause. Id. at 238.
The Commonwealth asserts that the informant's veracity was established because he gave the police information contrary to his penal interest and that such a statement alone will support a finding of probable cause to search. Relying upon United States v. Harris, 403 U.S. 573 (1971), the majority agrees with those assertions and holds that Halderman's statement that he got drugs from the apartment and planned to re-distribute them should be deemed reliable because the statement was against his penal interest. However, only four of the Justices of the Supreme Court joined in that portion of Harris concerning statements against penal interests. See id. at 585. Five of the nine Justices did not adopt that ruling.
Even if we look beyond the fact that a majority of the Justices of the Supreme Court did not join in that holding and we accept the plurality opinion as controlling, a statement against penal interest does not suffice to establish probable cause. "[T]heHarris plurality held that . . . statements [against penal interest] may provide only an additional basis for crediting an informant's 'tip,' and that there must be something more than a bare penal admission." Wilson v. State, 314 A.2d 905, 908 (Del. 1973). "[A]n admission against penal interest, without more, is not enough to justify a finding of probable cause." United States v. Ashley, 569 F.2d 975, 982 (5th Cir. 1978). See also United States v. Martin, 615 F.2d 318, 325-26 (5th Cir. 1980). Contrary to the opinion upon which it relies, the majority decides that the statement against penal interest alone conclusively established probable cause.
It is clear from the facts in Harris that the Supreme Court was not telescoping such admission into probable cause. In Harris, in addition to the admission, there was also the officer's knowledge from a variety of sources of the defendant's illegal activities over a four year period, and the prior discovery of contraband in an abandoned house under Harris' control. Chief Justice Burger, who authored Harris, was careful to observe that:
"Concededly admissions of crime do not always lend credibility to contemporaneous or later accusations of another."
The constitutional guaranty against unreasonable search of a citizen's residence is one of the most sacred rights we have. It must be protected against uncorroborated "tips" by unaccredited informers.
Wilson, 314 A.2d at 908 (quoting Harris, 403 U.S. at 584).
The police were aware that Halderman was "a known drug violator." Indeed, the police had another informant who gave them information that Halderman had been distributing drugs in the past and that Halderman was intending to make a distribution of cocaine to her that night. That informant called Halderman on the telephone and ordered cocaine from Halderman. Halderman told that informant he would pick up the cocaine and make a few deliveries of cocaine before meeting her at a pizza restaurant with the cocaine she ordered. The informant told the police of the arrangements and they began surveillance of Halderman. Halderman testified that before he went to the Corbetts' house he went to other people's houses to collect money that was owed him. He testified that on the evening after his conversation with the informant, he "went around, collected more money, and . . . was going to Mr. Corbett's."
After Halderman made his rounds and left Corbett's residence, Halderman was arrested with cocaine in his possession and other items indicating he was a distributor of drugs. At that point Halderman knew that he was in great difficulty. He had a very strong reason to fabricate and strong incentive to deflect attention from himself. By telling the police he worked for another person in a distribution scheme and by providing the police with the possibility of locating a source, Halderman was advancing his own personal interest by laying a foundation for leniency. He admitted no more information against his penal interest than the police already knew. The police knew that he was a drug violator. They knew he had distributed drugs in the past. They also knew that he was planning to distribute drugs to their informant within the hour. The police had no information, however, concerning whether Halderman was just visiting someone in the apartment, selling drugs to the occupant, collecting money, or buying drugs.
Under certain circumstances a so-called statement against penal interest may be of very doubtful reliability. We offer the following illustration: The police conduct an illegal search and arrest a suspect for a drug violation. Aware that they have no hope of obtaining a conviction, the police inform the terrified suspect that they will "go easy" on him (or that they will not press charges) if he will "finger" his supplier. Any statement made by an informant in such a position is hardly a statement against penal interest; rather, such a statement actually tends to shield the informant against criminal liability. Moreover, we cannot assume that a reasonable man in such a position would betray the confidence of his actual supplier, who is often a close friend; instead, it appears likely that such an informant, confident that he will remain anonymous, may make the best of a difficult situation by falsely accusing an enemy whom [sic] he feels may be in possession of some drugs. It also seems likely that an informant who is unaware of the present location of his supplier, or who produced the drugs himself, would be motivated to feed the police false information in the hope of obtaining leniency. Thus, a statement made by a suspect in custody will often have little or no probative value, regardless of whether it can be technically characterized as a "statement against penal interest."
People v. Gleason, 122 Mich. App. 482, 491-92 n. 7, 333 N.W.2d 85, 89 n. 7 (1983).
"In reviewing a warrant, . . . we consider the informant's veracity, reliability, and basis of knowledge as important factors." United States v. Jackson, 818 F.2d 345, 348 (5th Cir. 1987). Virginia case law does not hold that an admission against penal interest, standing alone, is sufficient to establish probable cause to issue a warrant through a "totality of the circumstances." Rather, this Court has said that "[t]he second criterion, in addition to `veracity or reliability,' to be considered in examining the `totality of the circumstances' is whether the informant's tip was supported by a sufficient `basis of knowledge.'" Corey v. Commonwealth, 8 Va. App. 281, 289, 381 S.E.2d 19, 23 (1989) (quoting Gates, 462 U.S. at 238). In the absence of other confirming facts or circumstances, an admitted perpetrator's incrimination of another person as a more culpable participant in the perpetrator's criminal activities may "reasonably be viewed as an attempt to curry favor and receive more lenient treatment from police officials."Jackson, 818 F.2d at 349. When Halderman was arrested, he had three bags of cocaine, a sheet of paper with writing indicating he was owed money, and he was on his way to sell the cocaine to a source known to the police. Thus, he had reason to curry favor whether the information he gave was true or not.
The affidavit contains no factual basis upon which to conclude that Halderman had a basis of knowledge. He did not inform police where the cocaine was stored, whether the residence contained paraphernalia, whether other cocaine remained from the alleged source of his supply, or provide any other descriptive facts. Beyond the bare conclusions, no facts indicate that Halderman had any knowledge. The lack of detail in his information is fatal to proof of a sufficient basis of knowledge. Jackson, 818 F.2d at 349-50.
In sum, the affidavit fails to demonstrate adequately the informant's veracity, reliability or his basis of knowledge so as to support probable cause for issuance of the arrest warrant. Our review is limited to the affidavit itself because the government presented no evidence to the district court to indicate whether other facts may have been before the magistrate and considered by him in his determination of probable cause. Accordingly, we conclude that the affidavit is "bare bones" and incapable of supporting a finding of probable cause.
Jackson, 818 F.2d at 350 (footnote omitted).
To establish probable cause, the warrant application required corroborative facts as a means of overcoming the dearth of information. See Gates, 462 U.S. at 241-45; 1 W. LaFave, Search and Seizure § 3.3(e) at 674 (2d ed. 1987). The corroboration need not be evidence of guilty conduct. Gates, 462 U.S. at 243 n. 13. However, "corroboration of a very few nonsuspicious and easily predictable events should not suffice." LaFave,supra, § 3.3(f), at 687.
Other states have found insufficient corroboration in cases where the specific facts provided by a reliable informant and verified by police are incomplete or so generally stated that they have no value in bolstering an informant's basis of knowledge. This Court's precedents establish that corroborative information obtained by police may bolster information from an informant whose veracity or basis of knowledge is weak. See Boyd v. Commonwealth, 12 Va. App. 179, 191, 402 S.E.2d 914, 922 (1991); Corey v. Commonwealth, 8 Va. App. 281, 287, 381 S.E.2d 19, 23 (1989); Williams v. Commonwealth, 4 Va. App. 53, 69, 354 S.E.2d 79, 88 (1987). However, if the corroborative information is not specific and related to a material matter, the corroborative information will not suffice to overcome the deficiency in the informant's statement. In Miles v. Commonwealth, 13 Va. App, 64, 408 S.E.2d 602 (1991), aff'd en banc, ___ Va. App. ___, 414 S.E.2d 619 (1992), the informants never saw anyone receive drugs at the defendant's home, they had never been inside the defendant's home, and they could not identify the defendant as the person who telephoned a third party to set up a drug deal. This Court deemed insufficient the circumstance where "the police corroboration consisted solely of determining that the defendant lived at the residence identified by the informants."Id. at 70, 408 S.E.2d at 605.
See State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989) (corroboration insufficient where reliable informant told police that defendant would be driving to Knoxville to purchase drugs but information was "short of specifics as to time, method of travel and the like" and police followed defendant only to county line); State v. Thompson, 369 N.W.2d 363 (N.D. 1985) (corroboration insufficient where reliable informant told police that defendants had marijuana in their home, had recently moved there and described their cars, and the police corroborated the last two facts since this information "could have been supplied by anyone who observed them coming and going").
The affidavit supporting the warrant in this case contains no underlying facts or circumstances that would have tended to corroborate the statements made by Halderman. The affidavit is remarkable for its lack of content. It merely states:
On this date, Nov. 17, 1989 your affiant and members of the Chesterfield County Vice Unit conducted a surveillance on a known drug violator [Halderman] which resulted in the arrest of the target of the surveillance and the seizure of COCAINE. After the arrest of this subject, the subject made a statement against his penal interest that the COCAINE in his possession was obtained from the location described in Section 2 of this document. The subject made further statements that he had previously purchased COCAINE from this same address. The COCAINE purchased on this and previous dates was for re-distribution.
This simply did not suffice to prove probable cause to search Corbett's residence. The magistrate, on the strength of the above affidavit, which offered no information save Halderman's alleged admission against penal interest, issued a search warrant. The magistrate erred.
The law "requires that the magistrate be furnished with`particular facts or circumstances which justify concluding that the informant is a reliable or trustworthy person.'"Galgano v. State, 147 Ga. App. 284, 286, 248 S.E.2d 548, 550 (1978) (citation omitted). Any person who was stopped and arrested while possessing drugs could have given the same kind and quality of information to exonerate himself or to fabricate greater culpability of another for bargaining purposes.
Even if the affiant had specified that the informant's "admission against penal interest" was the fact that he had purchased marijuana, this would clearly be insufficient to establish the informant's credibility. Otherwise, any informant who claimed that he had purchased marijuana could automatically be deemed "credible."
People v. Gleason, 122 Mich. App. 482, 492 n.___, 333 N.W.2d 85, 89 n. 8 (1983). When Halderman told the police he had purchased the drugs, the police believed they had sufficient information for the issuance of a search warrant. The police had no corroborative evidence. The affidavit provided only a bare-bones description of the criminal activity. Indeed, nothing in the affidavit that is attributable to Halderman provides details concerning the name of the occupants of the apartment, the location of drugs, the existence of paraphernalia, or details concerning the apartment. Since the warrant was so lacking in any indicia of probable cause, it rendered the magistrate's belief in the information unreasonable. Thus, the fruits of the ensuing search should have been suppressed.
I dissent.