FOURTH JUDICIAL CIRCUIT OF VIRGINIA CIRCUIT COURT OF THE CITY OF NORFOLK
EVERETT
A.
October 30, 2018
MARTIN JR.
150 ST. PAUL'S BOULEVARD NORFOLK, VIRGINIA 2351 0
JUDGE
Oksana V. LaBounty, Esq. Office of the Commonwealth's Attorney 800 East City Hall A venue, Suite 600 Norfolk, Virginia 23510 .James 0. Broccoletti, Esq. Zoby, Broccoletti & Normile, PC 6663 Stoney Pomt South Norfolk, Virginia 23502
Re:
Commonwealth of Virginia v. Adrian Knight Docket No.: CR18-1118
Dear Ms. LaBounty and Mr. Broccoletti: ¡ The ultimate issue in this case, as I see it, is whether the inevitable discovery exception to the exclusionary rule allows the admission of the gun into evidence. I conclude it does. The facts are not really in dispute. Officers Santare and Luketic were working in the "gun violence initiative zone" on January 23, 2018. They were stopped on the side of the 1700 block of Campostella Road, which, I take judicial notice, is a principal thoroughfare in that section of the City. The videos showed the street to be busy at that time, and parking on it is prohibited. (Tr. p . 34, 1. 22 - p. 35, 1. 6). Mr. Knight drove by the officers in a car without license plates, and the officers initiated a traffic stop. (Tr. p. 10, 11. 9 -23). Knight produced his driver's license, and his passenger, Mr. Cranston was not licensed to drive. (Tr. p g. 11 , 11. 9 - 23; pg. 17, 11. 3 - 8). When Officer Santare "ran" Knight's "information" through the police dispatcher, he learned there was an outstanding warrant for Knight for failure to pay child support or fines (Tr. pg. 17, 11. 3 - 8). The reaction of the officers to the news there was an outstanding warrant for Knight can best be described as joyful. They wanted to search his car. They believed they would find guns or drugs. (Tr. p. 41, 1. 15 - pg. 42, 1. 8). They discussed the extent of a permissible search. Officer Luketic said they could search the area around Knight; Officer Santare said they could search the entire car. (Santare video at 9:15 - 9:34).
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The officers then ordered Knight out of the car. He complied, and they handcuffed him and had him sit on the hood of the police car. Knight had a large "wad of cash," about $1000, in one pocket "wrapped like that could be conducive to someone that may have drugs and be selling them." Knight said the cash was not from the car auction. (Tr. pg. 21, 1. 4- pg. 22, 1. 17). Knight objected when told his car would be searched, and Officer Santare said he was required to search it because it would be towed (Santare video 13:50 - 14:05). Officer Santare testified his training was to conduct the inventory search on the street, not at the impound (Tr. pg. 25, 1. 24 - p. 26, 1. 9; pg. 3 8 11. 18 - 22). Officer Luketic confirmed this (Tr. p. 54, 11. 2 - 5). Officer Luketic conducted the search, and found the gun in a backpack on the back seat of the car. (Tr. pg. 23, 11. 1 - 6). Knight had earlier looked through this backpack for the registration. (Tr. pg. 12, 11. 11 - 23). The Commonwealth has three justifications for the search: probable cause and the automobile exception, lawful inventory search, and inevitable discovery. Probable Cause Officer Santare did not think they had probable cause to search the car. (Tr. pg. 42, 11. 1 12). Nor does it seem Officer Luketic believed that, although he was evasive. (Tr. pg. 66, 11. 7 22). Although I am not bound by their beliefs, I agree. Probable cause exists when "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Jones v. Commonwealth, 277 Va. 171, 178, 670 S.E.2d 727, 731 (2009). Knight had a large amount of cash, appeared nervous (Tr. pg. 65, 11. 23 - 24), and was in a high crime area. However, Knight was not driving erratically; the officers observed no furtive movements; the stop occurred during daylight. . (Tr. pg. 26, 1. 23 - pg. 27, 11. 11 ). There was heavy traffic on Campostella Road at the time. There was no indication of drug activity in the car or an odor of marijuana (Tr. pg. 28, 11. 17 - 25). Cranston did nothing to indicate criminal activity. (Tr. pg. 31, 11. 13 - 16). Many people are nervous when stopped by the police. Many people carry large sums of cash for licit purposes. Officer Santare gave no reason why he believed the cash was wrapped in a manner consistent with narcotics distribution other than it was "flattened with a rubber band." (Tr. pg. 21, 11. 18 - 20). Inventory Search In determining whether an inventory search was proper, I must first determine if the car was lawfully impounded. Kingv. Commonwealth, 39 Va. App. 306,311,572 S.E. 2d 518, 520 (2002). I find it was. Knight was arrested; Cranston had no operator's license; the car was on a busy street where it could not be legally parked (Tr. pg. 73 , 1. 20-pg. 74, 1. 1); there was no other
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person present to whom the car could be given. Cabbler v. Commonwealth, 212 Va. 520, 52223, 184 S.E. 2d 781, 782 (1971). Furthermore, even though Knight said he had just purchased the car at an auction, he never produced a registration, and the car had no license plates. The police were not required to ask Knight if he could make other arrangements for the safekeeping of the car, Williams v. Commonwealth, 42 Va. App. 723, 733-34, 594 S.E. 2d 305, 310 (2004), nor did Knight suggest any arrangement other than parking it. (Santare video at 14:00). It does not appear the police are required to offer valet parking to one they arrest. Colorado v. Bertine, 479 U.S. 367, 373-74 (1987) (quoting Rlinois v. Lafayette, 462 U.S. 640, 647 (1983)). The City's "Operational General Order - OPR 340; Towing" (the "City Policy"), Defendant's Exh. 1, provides for the arrest of the driver when the vehicle is not a traffic hazard. ยง IX A. The police are to give the driver three choices: (1) properly park the vehicle, take an inventory on PD 924, and lock valuables in the trunk, (2) take an inventory and have the vehicle towed, or (3) if there is no cause to retain the vehicle, the driver may designate another to drive it away. The City policy does not explicitly state what is to be done when the driver is arrested and the vehicle is a traffic hazard. Towing seems reasonable in that circumstance if there is no other person present licensed to drive. I also find the police were not required to turn over the backpack to Cranston without searching it. First, the City Policy requires in ยง XI, "Inventory Procedure:" B. All closed or locked containers such as luggage, brief cases ... related to a vehicle inventory will be opened for the purpose of recording the contents on the PD Form 924 .... C. Examples of items that will be inventoried include: briefcases .... .The Supreme Court has upheld policies of opening all containers. Florida v. Wells, 495 U.S. 1, 4 (1990). See also Bertine, supra, 479 U.S. at 374-75 . Second, the officers were entitled to be concerned about their safety. They did give the cash to Cranston, but a weapon is unlikely to be concealed in a wad of cash. Not so with a backpack, as this case demonstrates. "[A]n inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence." Wells, supra, 495 U.S. at 4. The videos clearly show the officers wanted to search the car for guns and drugs. Section XI A of the City Policy provides "A PD
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Form 924 will be prepared when an inventory is conducted." Officer Luk:etic's video shows he was not completing the PD 924 as he conducted the search, nor calling out what he found. The completed PD 924 omitted three valuable items found: the gun, a cellphone, and a generator. Section XI D of the City Policy provides: "When an officer discovers any firearm ... , this property will be vouchered and listed on inventory." One officer's conduct of the search and another's completion of the PD 924 gives me no concern, nor does the completion of the PD 924 immediately upon finishing the search. The omission of the gun, the cellphone, and the generator from the PD 924 alone does not invalidate an inventory search. Cantrell v. Commonwealth, 65 Va. App. 53, 65, 774 S.E. 2d 469, 475 (2015). The inventory search here could, nonetheless, aptly be described as slipshod. I find that even though the search was conducted pursuant to a standard police procedure, the inventory search was motivated by a desire to investigate. Inevitable Discovery
But should the primacy of an investigatory motive bar the introduction of the gun? The Commonwealth did not raise inevitable discovery in Cantrell, but it does here. It appears the Supreme Court of Virginia first recognized inevitable discovery as one of three exceptions to the "fruit of the poisonous tree" ¡doctrine, and it stated it to be merely "evidence which inevitably would have been gained even without the unlawful action." Warlick v. Commonwealth, 215 Va. 263 , 266, 208 S.E. 2d 746, 748 (1974). The Comi applied the rule again in Keeter v. Commonwealth, 222 Va. 134, 140 n.2, 278 S.E. 2d 841, 845 n.2 (1981). In neither case did the Court put any further limit on the rule. The Supreme Court of the United States approved the doctrine in Nix v. Williams, 467, U.S. 431 (1 984), where the police found a murder victim's body because of a statement th~ defendant made to the police in violation of Miranda. A search for the body was underway when the defendant made his statement, and the Court concluded: 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 has so little basis that the evidence should be received. Anything less would reject logic, experience, and common sense.
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467 U.S. at 445. The Court explicitly rejected a requirement that the prosecution must prove the absence of bad faith by the police. Ibid. Lower appellate courts, including our Court of Appeals, added two restrictions to the doctrine: (1) the leads making the discovery inevitable were possessed by the police at the time of the misconduct, and (2) the police were actively pursuing an alternative line of investigation before the misconduct. Walls v. Commonwealth, 2 Va. App. 639, 656, 347 S.E. 2d 175, 185 (1986). In Commonwealth v. Jones, 267 Va. 532 536-38, 593 S.E. 2d 204, 206 (2004), our Supreme Court rejected the second added restriction. It did not explicitly adopt the first restriction, but applied it, noting that nothing requires the lead to "relate to the specific offense with which the suspect is ultimately charged." The decision can be read to question this restriction, as the Court's ultimate holding was: "It is clear, at least 'by a preponderance of the evidence' ... that the drugs 'ultimately and inevitably would have been discovered by lawful means ... ' The trial court did not err, therefore in admitting the evidence ... under the doctrine of inevitable discovery." 267 Va. at 538, 593 S.E. 2d at 208. In a case such as this, where the police are not investigating a crime, but making a traffic stop and discovering the driver has an outstanding warrant, the requirement the police possess a lead making discovery inevitable makes no sense (unless "lead" is to be construed to include the lawful impoundment of an automobile). If any further restriction is to be applied, that of the Fourth Circuit makes sense here: "the doctrine requires the fact or likelihood that makes discovery inevitable arise from circumstances other than those disclosed by the illegal search itself." United States v. Thomas, 955 F.2d 207, 210 (4 th Cir. 1992). This is in accord with Warlick. The facts making discovery inevitable here involve no illegality by the police: Knight was driving a car without license plates in violation of Code of Virgin ia ยง 46.2-715; there was an outstanding warrant for his arrest; there was no licensed driver present to whom the car could be given; the car was stopped on a busy street on which parking was prohibited, and thus impoundment was necessary; the City Policy requires closed containers to be opened and their contents recorded; the backpack was on the backseat, an area within the permissible limit of an inventory. City Policy at ยง XI E 3. Professor LaFave, who is often cited by the Court of Appeals, questions some uses of inevitable discovery, but he has written: "Circumstances justifying application of the 'inevitable discovery' rule are most likely to be present ... where the circumstances are such that, pursuant to some standardized procedures or established routine a certain evidence-revealing event would definitely have occurred later. " 6 Search and Seizure: A Treatise on the Fourth Amendment, ยง 11.4(a) (5 th ed.)
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It could be argued this result will allow the Norfolk police to search for contraband in any car lawfully impounded. Not so. The police are limited in the places they may search. They may not, for example, search the dashboard, engine compartment, wheel wells, fuel tanks, nor may they remove head liners, door liners, or seats. Nor does the City Policy allow the use of dogs in .an inventory search. It can be argued this result will encourage the police to impound cars. Perhaps, but the Commonwealth will not be able to claim inevitable discovery if the court determines an impoundment was unlawful. . Furthermore, in addition to whatever internal discipline to which an officer might be subjected, he could be subject to a civil action for conversion or trespass to chattels for an unlawful impoundment, and punitive damages could be awarded. The officers here, on a hunch, suspected Knight of criminal conduct. To allow their hunch and their desire to search the car with an investigatory motive to defeat the inevitable discovery rule when an inventory search could properly be made would re-introduce bad faith by the police into inevitable discovery and elevate Justice Cardozo's aphorism to a new level: "The criminal is to go free because the constable has" [suspicions]. People v. Defore, 242 N.Y. 13, 21 , 150 N.E. 585, 587 (1926). I attach an order overruling the motion. Sincerely yours,
Everett A. Martin, Jr. Judge EAM,Jr/mls Enclosure