Commonwealth v. Jones

Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and

Lemons, JJ., and Carrico, S.J.

COMMONWEALTH OF VIRGINIA

OPINION BY

v. Record No. 030942 SENIOR JUSTICE HARRY L. CARRICO

March 5, 2004

JAMES SYLVESTER JONES

FROM THE COURT OF APPEALS OF VIRGINIA

The question for decision in this appeal is whether the

Court of Appeals erred in holding that the doctrine of

inevitable discovery was inapplicable to support the trial

court’s refusal to suppress evidence seized in a search

purportedly lacking in probable cause. Finding the Court of

Appeals’ holding erroneous, we will reverse.

The question stems from indictments charging James

Sylvester Jones (Jones) with attempted possession of cocaine

and possession of a firearm after having been convicted of a

felony. In a bench trial, the court found Jones guilty of

both offenses and sentenced him to serve a total of eight

years in the penitentiary, with five and one-half years

suspended.

In an unpublished opinion, the Court of Appeals affirmed

the weapons conviction but reversed the cocaine conviction.

We granted the Commonwealth an appeal from the reversal of the

cocaine conviction.1

The evidence shows that about 10:30 p.m. on July 23,

2000, Officer Brian O’Donnell of the Charlottesville Police

Department and two fellow officers were on patrol in response

to numerous complaints of drug sales occurring at a residence

located at 321 Sixth Street, S.W., in Charlottesville. The

officers approached the residence through the backyards of

other homes and observed a group of men standing on the

sidewalk in front of the residence.

When the officers came into view, the men ran. Officer

O’Donnell flashed his light on Jones and saw that he had a gun

in his right hand. O’Donnell yelled “[g]un” and ordered Jones

to “[g]et on the ground.” O’Donnell then wrestled Jones to

the ground and heard Jones’ gun hit the pavement “right beside

[a] minivan.” O’Donnell called to one of his fellow officers

to “[g]et the gun, he put it under the van.” O’Donnell placed

Jones under investigative detention, handcuffed him, and began

to search him. While O’Donnell was conducting the search, the

other officer recovered Jones’ gun, a revolver that appeared

to be in operating condition.

1

In a separate petition, Jones appealed the Court of

Appeals affirmance of his weapons conviction, but this Court

refused his petition. (Record No. 031019, Sept. 9, 2003.)

2

In the search, O’Donnell found in Jones’ right rear

pants pocket a “knotted plastic bag containing nine off-white,

rock-like substances.” At that point, O’Donnell arrested

Jones for possession of drugs and transported him to the

police station. There, after Jones had been advised of his

Miranda2 rights, he said that the rocks were cocaine worth

approximately $120.00 and that he mixed the cocaine with

marijuana.3

Upon arrival at the police station but before

interviewing Jones, Officer O’Donnell ran “a criminal history”

on Jones, which, O’Donnell testified, he “would do in the

normal ordinary course of business when [he finds] somebody in

the possession of a firearm.”4 Jones’ criminal history

disclosed he had been found guilty as a juvenile of an offense

that would be a felony if committed by an adult. He was then

charged with the firearms offense.

In considering Jones’ motion to suppress, the trial court

stated that Officer O’Donnell’s detention of Jones was

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reasonable as a valid pat-down stop under Terry but that

O’Donnell did not have probable cause to search Jones. Yet,

2

Miranda v. Arizona, 384 U.S. 436 (1966).

3

Upon analysis, the rocks were determined to be aspirin.

4

Officer O’Donnell testified he did not conduct a record

check with respect to the firearm at the time of arrest

because he “was going to bring [Jones] to the police

department and [he] didn’t have time to check.”

5

Terry v. Ohio, 392 U.S. 1 (1968).

3

the court continued, the discovery of the drugs would have

been inevitable and, on this basis, the court denied Jones’

motion to dismiss.

Jones concedes that his “initial detention was valid

based on the officer observing him running away from the area

with a firearm in hand,” and the Commonwealth does not

question the trial court’s ruling that Officer O’Donnell did

not have probable cause to search Jones. Jones argues that

once the trial court found the search was without probable

cause, it should have excluded the evidence concerning the

drugs and held the doctrine of inevitable discovery

inapplicable. The Commonwealth argues the trial court

properly held that the doctrine was applicable.

Ordinarily, evidence obtained as the result of an

unlawful search is subject to suppression under the

exclusionary rule. Weeks v. United States, 232 U.S. 383

(1914); Hart v. Commonwealth, 221 Va. 283, 287, 269 S.E.2d

806, 809 (1980). However, not all illegally obtained evidence

is subject to suppression. Wong Sun v. United States, 371

U.S. 471, 487-88 (1963).

One of the exceptions to the exclusionary rule is the

doctrine of inevitable discovery. This Court recognized the

exception in Warlick v. Commonwealth, 215 Va. 263, 266, 208

S.E.2d 746, 748 (1974), and Keeter v. Commonwealth, 222 Va.

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134, 140 n.2, 278 S.E.2d 841, 845 n.2, cert. denied, 454 U.S.

1053 (1981). Later, the Supreme Court of the United States

recognized the exception in Nix v. Williams, 467 U.S. 431

(1984), the Court holding that evidence obtained by unlawful

means is nonetheless admissible “[i]f the prosecution can

establish by a preponderance of the evidence that the

information ultimately or inevitably would have been

discovered by lawful means.” Id. at 444.

In reversing the trial court on the ground that the

doctrine of inevitable discovery was inapplicable in Jones’

case, the Court of Appeals cited its earlier decision in Walls

v. Commonwealth, 2 Va. App. 639, 656, 347 S.E.2d 175, 185

(1986). In turn, Walls cited and embraced United States v.

Cherry, 759 F.2d 1196 (5th Cir. 1985), cert. denied, 479 U.S.

1056 (1987). In Cherry, the Fifth Circuit recognized the

inevitable discovery rule enunciated by the Supreme Court in

Nix but said the Supreme Court had failed to state what must

be shown to establish that the discovery of evidence in a

particular case is inevitable. 759 F.2d at 1204. Filling this

purported void and only citing one of its own decisions,

United States v. Brookins, 614 F.2d 1037, 1042 n.2 (5th Cir.

1980), the Fifth Circuit held that the prosecution must show:

(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

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time of the misconduct, and (3) that the police also

prior to the misconduct were actively pursuing the

alternative line of investigation.

Cherry, 759 F.2d at 1204; see also United States v. Hernandez-

Cano, 808 F.2d 779, 784 (11th Cir.), cert. denied, 482 U.S.

918 (1987).

The Court of Appeals found that the Commonwealth failed

to satisfy items (2) and (3) of the Cherry test, and Jones

cites this same failure on appeal. With respect to item (2),

the Court of Appeals said “[t]here was no specific complaint

concerning Jones, so there were no leads for the police to

follow prior to the police misconduct.” While neither Cherry

nor Walls specifies what is necessary to satisfy item (2),

nothing in the Supreme Court’s opinion in Nix or our opinions

in Warlick and Keeter suggests that, to be sufficient, a lead

must relate to the specific offense with which the suspect is

ultimately charged.

Here, Officer O’Donnell had a lead sufficient to satisfy

item (2). After observing Jones fleeing the scene with a gun

in hand, Officer O’Donnell, “pursuant to normal police

practices,” United States v. Seals, 987 F.2d 1102,1108 (5th

Cir. 1993), would have run “a criminal history” and discovered

Jones’ prior adjudication of guilt for an offense equivalent

to a felony, would have arrested Jones for the weapons

offense, and then would have found the drugs on Jones’ person

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as a result of a search incident to arrest or pursuant to

normal booking procedures.

With respect to item (3) of the Cherry test, the Court of

Appeals held the item was not satisfied because Officer

O’Donnell “was not actively pursuing any alternative line of

investigation.” The Commonwealth urges us to reject item (3)

because the test it creates is “unnecessarily rigid.” Jones

responds that the test is not unnecessarily rigid and that we

should reject the Commonwealth’s proposal.

Again, we find nothing in the Supreme Court’s opinion in

Nix or our opinions in Warlick and Keeter requiring a showing

that the police were actively pursuing an alternative line of

investigation. And the precedential value of Cherry, upon

which the Court of Appeals relied in Walls, is now suspect.

Without mentioning its decision in Cherry or the requirement

of an alternative line of investigation, the Fifth Circuit in

United States v. Seals, supra, applied the inevitable

discovery rule to uphold the challenged seizure of a vehicle

following a search without a warrant. The court stated that

police procedures required an inventory of impounded vehicles,

and the questioned evidence would have been inevitably

discovered “during the normal inventory procedures” of the

police department. Id. at 1108.

7

Other federal circuits have disapproved the requirement

for an alternative line of investigation. United States v.

Silvestri, 787 F.2d 736, 745-46 (1st Cir. 1986); United States

v. Thomas, 955 F.2d 207, 210 (4th Cir. 1992); United States v.

Kennedy, 61 F.3d 494, 499-500 (6th Cir. 1995); United States

v. Ramirez-Sandoval, 872 F.2d 1392, 1399 (9th Cir. 1989).

The Court of Appeals opined in Walls that the requirement

for an alternative line of investigation is necessary to

ensure “that the inevitable discovery exception will be

applied consistently with the overall purpose of the

exclusionary rule, which is to deter police misconduct.”

2 Va. App. at 656, 347 S.E.2d at 185. The court also said

that a “ ‘contrary result would cause the inevitable discovery

exception to swallow the [exclusionary] rule by allowing

evidence otherwise tainted to be admitted merely because the

police could have chosen to act differently and obtain the

evidence by legal means.’ ” Id. (quoting Cherry, 759 F.2d at

1205).

However, as noted in Nix, while the prosecution should

not be put “in a better position than it would have been in if

no illegality had transpired,” 467 U.S. at 443, neither should

the prosecution be “put in a worse position simply because of

some earlier police error or misconduct” when the evidence

would inevitably have been discovered. Id. The requirement

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for an alternative discovery line of investigation would tip

the scales against the prosecution and put it in a worse

position than it would have been in had no illegality

transpired. And, if the requirement is allowed to stand,

rather than having the exception swallow the rule, the

requirement would swallow the exception. Eliminating the

requirement would level the playing field.

It is clear, at least ”by a preponderance of the

evidence,” Nix, 467 U.S. at 444, that the drugs “ultimately

and inevitably would have been discovered by lawful means.”

Id. The trial court did not err, therefore, in admitting the

evidence related to drugs under the doctrine of inevitable

discovery. Accordingly, we will reverse the judgment of the

Court of Appeals, reinstate the judgment of conviction, and

enter final judgment in favor of the Commonwealth.

Reversed and final judgment.

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