Record and brief — Keeter v. Virginia

uonned

Office - Supreme Court US

81-519 PILED |

Decket No. SEP 10 1901

2 . STEVAS.

1 — CLERK

In the Supreme Court of the United States

October Term, 1980

WALTER LEE KEETER, JR.

and

BERNARD THOMAS BRAY

Petitioners

VS

COMMONWEALTH OF VIRGINIA

Respondent

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF VIRGINIA

PETITION FOR WRIT OF CERTIORA 31

John W. Drescher

Pickett, Lyle. Siegel, Drescher & Croshaw

P.O. Box 2127

101 N. Lynnhaven Rd.

Virginia Beach, VA 23452

(804) 340-0011

Counsel for Petitioners

QUESTIONS PRESENTED

I, DID THE ENTRY BY LAW ENFORCEMENT OFFICERS

ONTO PREMISES FOR WHICH A SEARCH WARRANT

SUBSEQUENTLY ISSUED CONSTITUTE AN UNREA-

SONABLE SEARCH AND SEIZURE IN VIOLATION OF

THE FOURTH AND FOURTEENTH AMENDMENTS TO

THE UNITED STATES CONSTITUTION?

II. WHERE THE PROSECUTION FAILS TO INTRODUCE

SUSPECTED MARIJUANA OR A CHEMICAL ANALY-

SIS THEREOF IN EVIDENCE TO SUPPORT ONE

OF TWO INDICTMENTS AGAINST EACH PETITIONER

CHARGING DISTRIBUTION OF MARIJUANA IN

VIOLATION OF SECTION 18.2-248 OF THE

CODE OF VIRGINIA (1950), AS AMENDED, CAN

A RATIONAL TRIER OF FACT FIND PROOF OF

GUILT BEYOND A REASONABLE DOUBT?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED.........2... .

OFFICIAL AND UNOFFICIAL REPORTS

OF VIRGINIA SUPREME COURT OPINION........ ay

Ma . ͤ 8 3

CONSTITUTIONAL PROVISIONS O , 3

STATUTORY PROVISION IOI VE 4

. vheseaiens 4

alee . 3

ARGUMENT 11 A e

/ als 17

TABLE OF AUTHORITIES

STATUTES

Section 18.2-248 of the Code of Virginia (1950),

BS „ ccccccccccccccccccccccccccece

CASES

Arkansas v. Sanders, 99 S.Ct. 2586 (1979)...... 10,11

Ch v. United States, 365 U.S. 610

6 ae eee ss 13,14

Clodfelter v. Commonwealth, 218 Va. 619 (1977).15,16

Coolidge v. New Hampshire, 403 U.S. 443 (1971). 13

Fogg v. Commonwealth, 216 Va. 394 (1975)....... 16

Gillis v. Commonwealth, 215 Va. 298 (1974)..... 16

Huvar_v. Commonwealth, 212 Va. 667 (1972)...... 16

In re Winship, 397 U.S. 358 (1970) 16

Jackson v. Virginia, 443 U.S. 307 (1979)....... 16

Johnson v. United States, 333 U.S. 10 (1948)...10,13

McDonald v. United States, 335 U.S. 451 (1948).10,13

Payton v. New York, 63 L.Ed.2d 639 (1980)...... 14

Raffield v. State, 351 So.2d 945 (Fla. 1978)... 13

Ritter v. Commonwealth, 210 Va. 732 (1970)..... 16

Schmerber v. California, 384 U.S. 57 (1966)... 13

United States v. Jeffers, 342 U.S. 48 (1951)...13,14

United States v. Rosselli, 506 F.2d 627 (7th Cir.

N

eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee 13

—

Vale v. Louisiana, 399 U.S. 30 (1970).......... 14

Warden v. Hayden, 365 F. 294 (1967).......... 13

Woodfin v. Commonwealth, 218 Va. 458 (1977).... 16

Wright v. Commonwealth, 217 Va. 669 (1977)..... 16

OFFICAL AND UNOFFICIAL REPORTS OF VIRGINIA SUPREME

~ COURT OPINION

Walter Lee Keeter, Jr. and Bernard Thomas Bray v.

Commonwealth of Virginia, 222 Ja. 222 2 121

JURISDICTION

This Court has jurisdiction to review the

judgment of the Supreme Court of Virginia, entered

June 12, 1981 (App. 11) pursuant to 28 U.S.C. Section

1257 (3) in that the Petitioners allege (1) a viola-

tion of their right to be secure in their persons,

houses, papers and effects, against unreasonable

searches and seizures, as guaranteed by the Fourth and

Fourteenth Amendments to the United States Constitu-

tion, and (2) that their convictions on two of four

indictments were not established upon proof of guilt

beyond a reasonable doubt which amounts to a denial of

liberty without due process of law in violation of the

Fifth and Fourteenth Amendments to the United States

Constitution. .

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment to the United States

Constitution states:

The right of the people to be

secure in their persons, houses,

papers and effects, against

unreasonable searches and sei-

zures, shall not be violated, and

no warrants shall issue, but upon

probable cause, supported by oath

or affirmation and particularly

describing the place to de

searched, and the persons or

things to be seized.

The Fifth Amendment to the United States

Constitution states, in pertinent part:

No person shall . . . he deprived

of ... liberty. . . without due

process of law...

The Fourteenth Amendment to the United

States Constitution states, in pertinent part:

.

deprive any person of.. .lib-

10 „ ithout due process of

OP -« es

STATUFORY PROVISION INVOLVED

Va. Code Ann. $18.2-248 (1979 Cum. Supp.)

states in pertinent part:

- » « (I)t shall be unlawful for

any person to manufacture, sell,

— distribute or possess with

ntent to manufacture, sell, give

or distribute a controlled

substance.

(a) Any person who violates this

section with respect to a cont-

„

rolled substance classified

in Schedule I. . . shall upon con-

viction be imprisoned for not less

than five nor more than forty

years and fined not more than

Twenty-Five Thousand Dollars; ...

STATEMENT OF CASE

According to the evidence adduced at trial,

the offenses of which the Petitioners were convicted

occurred as follows:

On March 1, 1978, the Virginia Beach Police

Department enlisted the services of Charles Watkins as

a confidential informant to be utilized in an investi-

gation of a marijuana distribution scheme operated

primarily by the brother-sister team of Nancy and

Andrew Roberts. Watkins was instructed to purchase

marijuana from these individuals with currency pro-

vided by law enforcement agents which had been

marked“ and recorded by serial number. Detectives

R.W. Harris and 6.0. Andrews wired Watkins with a body

transmitter so that his activities could he monitored.

The informant traveled to the White Heron

Motel/Restaurant on Laskin Road to attend a pre-

arranged meeting with the drug dealers. Harris sta-

tioned himself inside the lounge area for observation

purposes. Detectives A.L. Hymons, R.L. Schmeh] and

Andrews positioned themselves in a nearby parking lot

hopefuly to track one or both of the Roberts to their

supplier of the contraband.

The marked currency was delivered by Watkins

to Nancy Roberts who passed it to her brother. Mr.

Roberts took the keys to his sister's 1973 Pinto

automobile, walked outside and drove away. According

to the detectives, he was dressed in jeans or Levis

and a longsleeved, dark flannel shirt. Roberts tra-

veled to 2508 Reagan Avenue with Detectives Hymons and

Schmeh] following in two separate, unmarked police

the arrest of the Roberts taking place at the White

+

Heron. While he did not fear for his life and saw no

one enter or leave 2508 Reagan Avenue, he did theorize

that any evidence inside could be destroyed unless the

premises were immediately secured.

According to the police, Roberts eventually

exited carrying a clear, plastic bag of dimensions

roximately 12" x 12" which contained a green-brown

plantlike material which the officers suspected to be

marijuana. Roberts disputes this point even though he

appeared at trial to testify against the Petitioners

pursuant to an agreement reacched with the prosecu-

tion. He maintains that he was wearing a blue, bulky

ski jacket under which he placed the marijuana in

order to hide it from view. Roberts returned to the

White Heron with Schmeh] following where he and his

sister were arrested. Hymons continued to watch the

house at 2508 Reagan Avenue.

Thereafter, Detectives Andrews and Harris

relieved Hymons. Prior to their arrival, Hymons ini-

tially testified that following Roberts departure, no

one was observed near the premises. However, on the

second day of the trial, when he was recalled as a

witness for the Commonwealth, Hymons claimed that two

unidentified white males left the area in a Ford

Bronco truck, but he was unable to ascertain their

point of departure. When Andrews came on the scene,

he dispatched Hymons to Police Headquarters in order

to secure a search warrant for the dwelling. Harris

and Andrews continued to watch the house while parked

in an unmarked police vehicle. During this obser-

vation period, Harris had no fear for his life, did

not feel that any evidence inside the residence would

be destroyed, saw no movement in the house, did not

call for any assistance to surround the premises, did

not try to watch all entrances, did not look inside

the dwelling, saw no one enter or leave much less flee

the scene, and simply assumed that a search warrant

was being obtained by Hymons. At one point he was

concerned about the two individuals who were driving a

Ford Bronco vehicle toward the White Heron, but did

not hear his partner, Detective Andrews, talking over

the police communication system regarding this

possibility. Andrews testified that he saw movement

in the house and actually discussed this with Harris.

Further, he as worried about the fact that the two

white males in the Bronco could conceivably discover

the arrest of the Roberts taking place at the White

Heron. While he did not fear for his life and saw no

one enter or leave 2508 Reagan Avenue, he did theorize

that any evidence inside could be destroyed unless the

premises were immediately secured.

Consequently, he and Harris knocked at the

door, were allowed entry by one of two females

present, Cathy Wilson, and "froze" the house under

“exigent circumstances." The detectives fully

intended to take control of the premises regardless of

any consent proferred by either occupant. While

inside, Andrews looked in each room and closet and

observed quantities of suspected marijuana. After

determining that there was no one present other than

the two women in the custody of Detective Harris, he

telephoned Hymons at Police Headquarters and advised

him of what he had seen.

Detective Hymons eventually obtained a search

warrant from a magistrate before returning to 2508

Reagan Avenue. Meanwhile, Walter Lee Keeter, Jr. and

Bernard Thomas Bray had been taken into custody upon

their arrival at the house after Andrews and Harris

gained entry, but before Hymons brought the search

warrant. This de facto arrest occurred despite the

fact that Keeter and Bray had driven their vehicle in

a normal fashion to the home while being followed by a

marked police cruiser.

The search warrant subsequently was executed

at 2508 Reagan Avenue and a large quantity of mari-

juana and currency was discovered, including the

marked money that Watkins had provided Andrew Roberts.

The Petitioners were arraigned in the Circuit

Court of the City of Virginia Beach to answer two

indictments each for Distributing Marijuana and

‘>

Possessing Marijuana with the Intent to Distribute in

violation of Section 18.2-248 of the Code of Virginia

(1950), as amended. Trial was heard simultaneously

with a Motion to Suppress the Evidence on October 24,

25 and November 5, 1979, without the intervention of a

jury. At the conclusion of the evidence and upon con-

sideration of argument by counsel, the court overruled

the Motion to Suppress and found the Petitioners

guilty on all counts. (R.505) On April 14, 1980, the

trial court reconvened, heard additional argument,

considered presentence reports and sentenced each

defendant to a five-year term of incarceration in the

penitentiary of the Commonwealth of Virginia on both

charges and ordered the sentences to run concurrently.

The Petitioners applied to the Supreme Court

of Virginia for a Writ of Error specifically

requesting review, inter alia, of both questions pre-

sented herein. An appeal was granted, but only as to

the issue of whether or not the trial court erred in

failing to determine that there were exigent cir-

cumstances which would justify the entry by law enfor-

cement officials on premises for which a search

warrant subsequently issued. (App. 12-13)

ARGUMENT

I. THE ENTRY BY LAW ENFORCEMENT

PERSONNEL ONTO THE PREMISES OF

2508 REAGAN AVENUE WITHOUT A

SEARCH WARRANT IN ABSENCE OF

EXIGENT CIRCUMSTANCES VIOLATED

THE FOURTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES

CONSTITUTION.

The Fourth Amendment to the Constitution of

the United States provides:

The right of the people to be

secure in their persons, houses,

*

papers and effects, against

unreasonable searches and sei-

zures, shall not be violated, and

no Warrants shall issue, but upon

probable cause, supported by oath

or affirmation, and particularly

describing the place to be

searched, and the persons or

things to be seized.

The point of the Fourth Amendment,

which often is not grasped by

zealous officers, is not that it

denies law enforcement the support

of the usual inferences which

reasonable men draw from evidence.

Its protection cons ists in

requiring that those inferences be

drawn by a neutral and detached

magistrate instead of being g ed

by the officer engaged ir the

often competitive enterpri of

ferreting out crime. Any assump-

tion that evidence sufficient to

support a magistrate's dis in-

terested determination to issue a

search warrant will justify the

officers in making a search

without a warrant would reduce the

Amendment to a nullity and leave

the people's homes secure only in

the discretion of police officers.

Crime, even in the privacy of

one's own quarters, is, of course,

of grave concern to society, and

the law allows such crime to be

reached on proper showing. The

right of officers to thrust men-

selves into a home is also a grave

concern, not only to the indivi-

dual but to a society which

chooses to dwell in reasonable

security and freedom from

**

surveillance. When the right of

privacy must reasonably yield to

the right of search is, as a rule,

to be decided by a judicial

officer, not a policeman or

government enforcement agent.

Johnson v. United States, 333 U.S. 10, 13-14 (1948).

The right of privacy (is) deemed

too precious to entrust to the

discretion of those whose job is

the detection of crime and the

arrest of criminals. Power is a

heady thing; and history shows

that the police acting on their

own cannot be trusted . . . One

cannot be true to (the)

Constitutional requirement (of the

Fourth Amendment) and excuse the

absence of a search warrant

without a showing by those who

seek exemption from (this):

mandate that the exigencies of the

situation (make) that course

imperative.

McDonald v. United States, 335 U.S. 451, 455-56 (1948).

The exceptions to the warrant mandate are

jealously and carefully drawn to allow for circumstan-

ces where resorting to a neutral and detached

magistrate is outweighed by the dangers to society.

The two exemptions are: (1) when resorting to a judi-

cial officer would involve danger to law enforcement

personnel; or (2) where there is a legitimate risk

that evidence will be lost or destroyed. Arkansas

v. Sanders, 99 S.Ct. 2586, 2590-91 (1979). These

exceptions invariably impinge to some extent on the

protective purpose of the Fourth Amendment and the

burden is on those seeking the exemption to sow the

- 10 -

need for it. Arkansas v. Sanders, 99 S.Ct. at 2591.

be analysis of the facts clearly illustrates that the

Commonwealth has failed in its burden.

It is undisputed that Detectives R.W. Harris

and G.0. Andrews entered 2508 Reagan Avenue without

haying first obtained a search warrant under the guise

of so called “exigent circumstances." No such

warrantless entry was permissible to "freeze" the

house until a search warrant could be obtained because

of the nonexistence of any circumstances from which

one could rationally conclude that the contents of the

home would be rendered unavailable to legal process.

Both officers drove to 2508 Reagan Avenue in the same

automobite. Harris did not remember seeing Detective

Hymons, who was conducting a surveillance of the house

at the time of arrival. He did not see Walter Lee

Keeter, Jr. or Bernard Thomas Bray leave the premises

or approach the residence. While he was concerned

that the investigation might be stymied in the event

anyone learned of the White Heron Motel arrests, he

never overheard a conversation between Andrews and

other police personnel through radio communication

which would indicate that this could possibly occur.

Harris saw no movement by any one in or around the

home, nor did he observe an indication of a possible

escape by any suspect. He had no fear for his safety,

nor would such a concern have arisen had he walked to

the rear of the house. Furthermore, neither detective

looked inside the home to see if anything unsuual was

transpiring. In fact, Harris testified that the first

time he knew the residence was even occupied was when

Cathy Wilson opened the front door in response to the

knock of the investigators. He fully intended to

enter the house whether or not the occupants gave him

permission.

Detective Andrews’ testimony is contradictory

to that of Detective Harris. While outside the

dweiling in question, he claims to have been in radio

contact with Officer Bach who was in a police cruiser

following two suspects driving a Ford Bronco truck

which had allegedly left the vicinity of 2508 Reagan

ome

Avenue. Andrews claims that he was afraid that the

two occupants of the vehicle would travel to the White

Heron Motel and learn of the arrests that had taken

place there. He did not decide to enter the residence

until he and Harris saw movement inside and Officer

Bach radioed and informed him that the two suspects

had proceeded eastbound on Laskin Road through the

First Colonial Road stoplight. This led him to

conclude that a telephone call could be made to 2508

Reagan Avenue to alert individuals inside to destroy

any evidence of illegal activity. According to

Andreas, Harris knew all of this information and con-

curred in the decision that they should secure the

house until Hymons returned with a search warrant.

Andrews was never in fear for his life and never

requested the assistance of additional police person-

nel to surround the residence. Thus, even though

Andrews was allegedly in radio contact with Officer

Bach, he decided to enter 2508 Reagan Avenue with or

without consent of the occupants before Bach had an

opportunity to determine whether the truck would

indeed approach the White Heron Motel. Interestingly,

the record is totally devoid of any evidence fran

which one can determine the distance between the

intersection of First Colonial and Laskin Roads and

the White Heron Motel.

Once inside, Andrews looked in each room and

closet of the house and observed large quantities of

suspected marijuana. After determining that there was

no one present other than the two women in the custody

of Detective Harris, Andrews telephoned Detective

Hymons at Police Headquarters and advised him of what

he had seen, but never reported his concern that evi-

dence might have been destroyed had he not secured the

res idence. Thereafter, Hymons obtained a search

warrant and returned to 2508 Reagan Avenue.

There clearly was no exceptional situation

which would justify entry by law enforcement personnel

onto the premises of 2508 Reagan Avenue without first

obtaining a search warrant. police officers were

not responding to an emergency. United States v.

~~ =

Jeffers, 342 U.S. 48, 52 (1951); McDonald v. United

States, 335 U.S. at 454. The detectives were not in

hot pursuit of a 9 felon. Warden v. Hayden 365

U.S. 294, 298-99 (1967); Ch v. Un ates,

365 U.S. 610, 615 (1961); nson v. Un ates,

333 U.S. at 15. The items ultimately seized were not

in the process of destruction. Schmerber v. Califor-

nia, 384 U.S. 757, 770-71 (1966); United States v.

Jeffers, supra; McDonald v. United States, 335 U.S. at

. NO contraband was about to be removed fran

the jurisdiction. Ch v. United States, supra;

Johnson v. United States, supra; United States v.

ers, supra. mere fact that a warning

teTephone 8870 might de made to the target of a search

is not a sufficient exigent circumstance to support

warrantless entry onto private property. United

States v. Rosselli, 506 F.2d 627 (7th Cir. NN

Raffield v. State, 351 So.2d 945 (Fla. 1978).

If the officers in this case are excused fron

the Constitutional duty of presenting their evidence

to a magistrate, it is difficult to think of a

situation in which it should de required. See

Ch nv. United States, 365 U.S. at 615-16; Johnson

nited States, 333 U.S. at 15. The police could

effectively search an entire house or building for

“protective purposes," view contraband and contact the

preparer of the affidavit in support of a subsequently

issued search warrant to advise him of their findings.

This is little more than “planned plain view" prohi-

bited by Coolidge v. New Hampshire, 403 U.S. 443

(1971). One notes ymons neglected to recite in

the affidavit tendered in support of the search

warrant the fact that Andrews informed him by

telephone of the suspected marijuana observed in the

so called “protective search" of the home.

The credibility factor cannot be ignored

either. The testimony of Harris and Andrews is

contradictory in nearly every aspect and fails to

illustrate an exigency sufficient to justify an exemp-

tion from the constitutional mandate of the Fourth

Amendment. There was ample time to obtain a search

os.

warrant, there was no probability of a material change

in the situation, additional police personnel could

easily have been called to the scene for surveillance

purposes and a short period of observation could have

prevented the destruction of contraband. See

Ch v. United States, supra; United States v.

Wer supra; Vale v. Louisiana, 399 U.S. 30 (19570);

ae ork, 63 C. kd. 2d 639 (1980).

The case at bar is squarely controlled by the

authorities of this Court cited above. The decision

of the er" Suprene Court is inconsistent

therewith. Writ of Certiorari should be granted

to consider the Petitioners’ claim of constitutional

infringement.

II. THE EVIDENCE FAILS TO ESTA-

BLISH BEYOND A REASONABLE DOUBT

THAT THE PETITIONERS ARE GUILTY

OF DISTRIBUTING MARIJUANA IN

VIOLATION OF §$18.2-248 OF THE

CODE OF VIRGINIA (1950), AS

AMENDED.

When Andrew Roberts purchased what he thought

was marijuana from 2508 Reagan Avenue, he negotiated

exclusively with one of two female occupants, Cathy

Wilson. Neither of the Petitioners were present at

the residence. Ms. Wilson obtained one pound of the

suspected contraband from an undisclosed location and

delivered it to Roberts who placed $480.00 upon a cof-

fee table situated on the premises. He hid the mari-

juana under his ski jacket, left the house, and

returned to the White Heron Motel.

Supposedly, the illegal substance was con-

fiscated upon Roberts“ arrest; however no such

material was ever introduced at trial and no chemical

analysis was ever performed on the suspected contra-

band to show that it was, in fact, marijuana.

In order to convict a person of distributing

=~

a controlled substance, one must first prove beyond a

reasonable doubt that he had possession of the same.

- « « (I)t generally is necessary

to show that (the accused) was

aware of the presence and

character of the particular

substance and was intentionally

and consciously in possession of

it. Physical possession giving

the defendant “immediate and

exclusive control" is sufficient.

However, the possession need not

always be exclusive. The defen-

dant may share it with one or

more. The duration of the

possession is immaterial and need

not always be actual possession.

The defendant may be shown to have

had constructive possession by

establishing that the drugs

involved were subject to his domi-

nion or control.

Clodfelter v. Commonwealth, 218 Va. 619, 622 (1977).

- « « (I)f the proof relied upon

by the Commonwealth is wholly

circumstantial, as it here is,

then to establish guilt beyond a

reasonable doubt, all necessary

circumstances proved must be con-

sistent with guilt and incon-

sistent with innocence. They must

overcome the presumption of inno-

cence and exclude all reasonable

conclusions inconsistent with that

of guilt. To accomplish that, the

chain of necessary circumstances

must be unbroken and the evidence

as a whole must satisfy the

8

guarded judgnent that both the

corpus delecti and the criminal

agency of the accused have been

proved to the exclusion of any

other rational hypothesis and to a

moral certainty. ..

. « (C)ircumstances of

suspicion, no matter how grave or

strong, are not proof of guiit

sufficient to support a (judgment)

of guilty. The actual commission

of the crime by the accused must

be shown by evidence beyond a

reasonable doubt to sustain his

conviction.

Clodfelter, 218 Va. at 623.

There is virtually no doubt that the

appellants did not possess, much less distribute, the

alleged marijuana in question. See Clodfelter v.

Commonwealth, 218 Va. 619 (1977); Woodfin v. Common-

wealth, 216 Va. 458 (197/); Wright v. Commonwealth,

217 Va. 669 (1977); F v. Commonwealth, 216 Va. 394

(1975); Gillis v. Commonwealth, 215 Va. 298 (1974);

" a. 667 (1972); Ritter v.

a. 732 (1970). In essence, the

ommonwealth,

prosecution has failed to establish the corpus delecti

in this cause.

Huvar v. Conmonwea

It is an essential of due process guaranteed

by the Fourteenth Amendment that no person shall be

made to suffer the onus of a criminal conviction

except upon sufficient proof--defined as evidence

necessary to convince a trier of fact beyond a reaso-

nadle doubt of the existence of every element of a

criminal offense. In re Winship, 397 U.S. 358 (1970).

Upon the record, there was no evidence adduced at the

trial of the Petitioners which could allow a rational

trier of fact to find proof of guilt beyond a reaso-

nable doubt. See Jackson v. Virginia, 443 U.S. 307

4

(1979). No greater injustice can befall an accused

charged with a crime than to be convicted upon evi-

dence clearly failing to reach the required standard

of proof. The decision of the Virginia Supreme Court

is contrary to the authorities cited above and review

of this issue is in order.

CONCLUSION

The Petitioners respectfully request that

this Court grant them a Writ of Certiorari to the

Supreme Court of Virginia to review the claims of

error set forth herein.

WALTER LEE KEETER, JR.

and BERNARD THOMAS BRAY

By/s/ John W. Drescher

ounsel

John W. Drescher

Pickett, Lyle, Siegel, Drescher & Croshaw

101 N. Lynnhaven Road

P.O. Box 2127

Virginia Beach, Virginia 23452

MAILING CERTIFICATE

I, John W. Drescher, a member of the Bar of

this Court, make oath that on or before the 10th day

of September, 1981, I caused this Petition for a Writ

of Certiorari to be deposited in a United States Post

Office or mailbox with first class postage prepaid,

and properly addressed to the Clerk of the Supreme

Court of the United States pursuant to Rule 28.2. I

further make oath that I have caused 3 copies of this

Petition for a Writ of Certiorari to be sent to

Richard B. Smith, Assistant Attorney General for the

Commonwealth of Virginia, 830 East Main Street,

489.

Richmond, Virginia 23219, depositing the same in the

United States Post Office or mailbox, with first class

postage prepaid.

/s/ John M. Drescher

STATE OF VIRGINIA

CITY OF VIRGINIA BEACH, to-wit:

Subscribed and sworn to before me this 9th

day of September, 1981.

s/ Kimberly A. Thomas

otary Public

My Commission expires:

June 11, 1982

9.6.1.C

att«

APPENDIX

Present: All the Justices

WALTER LEE KEETER, R.,

and BERNARD THOMAS BRAY

OPINION BY JUSTICE GEORGE M. COCHRAN

v. Record No. 801078 June 12, 1981

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

Henry L. Lam, Judge

The trial court, sitting without a jury, con-

victed Walter Lee Keeter, Jr., and Bernard Thomas Bray

of possessing marijuana with the intent to distribute

and of distributing marijuana in violation of Code

$18.2-248, and sentenced them to serve five years in

the penitentiary on each charge, the sentences to run

concurrently. We granted an appeal limited to the

question whether the court erred in failing to deter-

mine that there were no exigent circumstances to

justify the warrantless entry by police officers into

the dwelling for which a search warrant vas sub-

sequently issued.

Prior to trial, the defendants filed motions

to suppress all evidence seized pursuant to the search

warrant issued on March 1, 1979. At trial, evidence

was heard on the motions to suppress and on the offen-

ses charged in the indictments to which the defendants

had entered not guilty pleas. At the conclusion of

the evidence, the trial court overruled the motions to

suppress and found Keeter and Bray guilty as charged.

On March 1, 1979, a police informant, Charles

Watkins, who worked at the White Heron Motel on Laskin

Road in Virginia Beach, was provided $500 in marked

currency to make a “controlled purchase“ of marijuana.

i

A transmitter was attached to Watkins's body so that

the police could monitor the transaction. At the

White Heron, Watkins paid $480 of the marked money to

Nancy Roberts, who then asked her brother, Andrew, to

get the marijuana. Roberts drove away in a Ford Pinto

bearing license plates NAN-437, followed by Detectives

A.L. Hymons and R. L. Schmeh! in two separate unmarked

cars, and proceeded to a residence at 2508 Reagan

Avenue. Roberts entered the residence and soon reap-

peared carrying a clear plastic bag, one foot by one

foot in size, containing a greenish-brown plant-like

substance, and drove off. Hymons remained and kept

the residence under surveillance while Scimeh!

followed Roberts back to the White Heron. Roberts

returned the car keys to his sister, and she directed

Watkins to the bag in the car. When Watkins entered

the Pinto, Schmeh] approached, seized the bag con-

taining what appeared to be marijuana, and reported

this information to the other police units assigned to

the case. Nancy and Andrew Roberts were arrested.

During Hymons's surveillance of the residence

he did not see anyone enter or leave the dwelling, but

he did see a vehicle that he described as a Ford

Bronco, with two white males inside, drive away from

the premises. Another officer, Detective Bach,

followed the Bronco.

hen the “controlled purchase“ of marijuana

had been completed, Detectives George 0. Andrews and

R.W. Harris proceeded fron the White Heron to relieve

Hymons at 2508 Reagan Avenue. Andrews dispatched

Hymons to police headquarters to obtain a search

warrant for the dwelling.

Bach reported by radio to Andrews that the

Bronco had turned onto Virginia Beach Boulevard, and

then that it had turned onto Laskin Road. At this

time Andrews saw movement inside the residence; an

occupant came to the window and looked out. Without

waiting for Bach to give a further report on the

destination of the Bronco, Andrews and Harris decided

to enter the residence because, they testified, they

“e ¥

were afraid, not of danger to themselves, but of

destruction of evidence. They were concerned, Andrews

said, that the suspects in the Bronco would continue

on to the White Heron, observe the police activity

still in progress there, and arrange to have the evi-

dence in the residence destroyed before the search

warrant could be served.

Andrews and Harris knocked on the front door

and identified themselves as police officers to Cathy

Wilson when she came to the door. Andrews informed

her that a search warrant was being obtained and they

were there to secure the residence “under exigent

circumstances" until the warrant could be served.

Upon entering, Harris remained in the living room with

Wilson and a neighbor, a young woman who had nothing

to do with the case, while Andrews walked through the

dwelling, looked into rooms and closets, and ascer-

tained that no one was hiding there. He neither

searched for nor seized any contraband. Seeing bags

of marijuana i. plain view in various locations as he

went through the house, Andrews telephoned Hymons at

police headquarters, reported the presence of

marijuana, and directed Hymons to continue in his

effort to obtain the search warrant. Andrews also

gave Miranda warnings to Wilson and the other woman

detained in the living room.

Wilson informed Andrews that she, Keeter, and

Bray resided in the house and that the two men had

gone to a restaurant. Bach confirmed by radio to

Andrews that he had observed the occupants of the

Bronco enter a restaurant. Subsequently, Bach

reported that the suspects had left the restaurant and

appeared to be returning to Reagan Avenue. At

Andrews's direction, Bach followed the Bronco to 2508

Reagan Avenue, parked behind that vehicle, and

escorted the men, Keeter and Bray, into the residence,

where they too were detained by the officers until

Hymons arrived with the search warrant.

After the search warrant was served, the

officers searched the premises. They found and seized

<—

ximately 24 pounds of marijuana, three marijuana

plants, a set of scales, and $15,580.00 in currency,

in addition to the $480.00 of marked money used in the

purchase made earlier by Watkins.

In argument before the trial court on the

motion to suppress, counsel for Keeter and Bray pri-

marily attacked the sufficiency of the affidavit sup-

porting the search warrant but further denied that any

emergency or exigent circumstances justified the

warrantless entry by the officers to secure the resi-

dence at 2508 Reagan Avenue. The trial court merely

overruled the motion without stating the basis for

this action. Nevertheless, the motion to suppress was

expressly directed to evidence seized pursuant to the

search warrant rather than to evidence seized pursuant

to the warrantless entry into the residence. Indeed,

the record clearly shows that the seizure of evidence

was made pursuant to the search warrant.

Detective Hymons prepared and as affiant exe-

cuted the affidavit for the search warrant to search

the premises at 2508 Reagan Avenue for “Marijuana and

— — money. The supporting facts were stated as

ol lows:

On March 1, 1979, this writer

received information from an

informant who stated that a green

1973 Pinto bearing Va. license

plates number NAN-437, would be

used to pick-up and deliver mari-

juana in this city. This infor-

mant has been advised by the

subjects involved that they had

access to quantities of marijuana.

This vehicle was parked at the

White Heron located on Laskin R.

During the observation of the

Pinto, a white male entered the

vehicle and drove it to 2508

Reagan Ave. As the white male

subject was leaving 2508 Reagan

*

Ave. he was observed placing a

package in the floor of the right

front seat of the Pinto. This

package that was placed in the

Pinto, came with the white male

subject from inside the dwelling

at 2508 Reagan Ave. The vehicle,

Pinto, and driver were apprehended

upon their return to the White

Heron. The search of the right

front seat area of the Pinto pro-

duced the greenish-brown plant

like known to this affiant as

marijuana. Marked money (U.S.

currency) was used to trace the

movement of the marijuana by the

suspects involved.

It is apparent, therefore, that the affidavit

submitted to the magistrate in support of the applica-

tion for the search warrant was based entirely upon

the information that the marijuana delivered to the

informant, Watkins, at the White Heron had been

obtained by Andrew Roberts at 2508 Reagan Avenue.

This information justified the magistrate's conclusion

that the affiant had probable cause to believe that

the marked currency and additional supplies of mari-

juana were at the same address. No where in the affi-

davit is there any reference, express or implied, to

any information received by Hymons from Andrews after

the warrantless entry. Moreover, no items of evi-

dence were searched for or seized until the search

warrant had been served.

In United States v. Edwards, 443 F. Supp. 192

(Db. Mass. [, after extensive investigation and

surveillance, law enforcement agents observed two men

remove a package containing heroin from a car parked

in front of a residence. One of the suspects with

“IT Keeter and Bray conceded, both on brief

and in oral argument, that Hymons was already in the

process of obtaining the warrant when he received the

call from Andrews.

whom an F.B.I. agent on the surveillance team was

acquainted gestured toward the agent and then, accom-

panied by the second suspect, carried the package into

the residence. Although they knew that a search

warrant was being prepared, the agents made a

warrantless entry into the residence, searched for

persons but not evidence, restrained the occupants,

and secured the premises until the search warrant was

issued. The court rejected the defendants’ ar qunent

that the package should be suppressed as the fruit of

an illegal entry, holding that it was neither searched

for nor seized until after the warrant had been

issued, and that it was therefore seized pursuant to

the warrant and was untainted by the alleged illega-

lity of the entry, even though the affidavit recounted

the events that occurred outside the residence.

On appeal, the action of the trial court in

overruling the motion to suppress was upheld, but on

the ground that the warrantless entry was justified by

exigent circumstances, i.e., the reasonable aprehen-

sion that the surveillance had been discovered and the

evidence would de destroyed. United States v.

Edwards, 602 F.2d 458, 468-69 (lst Cir. 1979).

Nevertheless, the appellate court declined to reverse

the holding of the trial court that the seizure was

ob cg and causally independent from the initial

entry.“ Id. at 469-470, n. 12.

In the present case, we hold that the evi-

fience in controversy was seized pursuant to the search

warrant, which was in the process of being issued

before the residence was entered by the officers, and

that the seizure was thus independent of the

warrantless entry. Therefore, even if the entry was

illegal, seizure of the evidence was not tainted

thereby as “fruit of the poisonous tree" under

Sun v. United States 371 U.S. 471 (1963). ee

United States J. Sor-Lokken, 557 F.2d 755 (10th Cir.),

cert. denied, 434 U.S. 894 (1977); United States v.

Worthington, 544 F.2d 1275 (5th Cir.), cert. denied,

434 ve 817 (1977); United States v. Race, 529 F.2 2d

12 (Ist Cir. 1976).

Nevertheless, we do not base our decision

solely on this ground. At least one federal court has

implied that for Fourth Amendment purposes a seizure

of evidence may occur at the time of a warrantless

entry when the officers secure the premises and

restrain the occupants, and there is inculpatory evi-

dence in plain view of the officers. See United

States v. Berrett, 513 F.2d 154 (ist Cir. T9575);

States J. Berkowitz, 429 F.2d 921 (lst Cir.

er this rationale, if the warrantless entry

is unlawful the seizure would be invalid. Therefore,

absent controlling guidelines established by the

Supreme Court we deem it advisable to determine the

validity vel non of the warrantless entry in the pre-

sent case.

Warrantless searches are per se unreasonable

and violative of Fourth Amendment rights, subject to a

few exceptions, such as danger to the law enforcement

officers or risk of loss or destruction of evidence.

Arkansas v. Sanders, 442 U.S. 753, 759 (1979); see

ald v. United States, 335 U.S. 451, 454-55

° Cikewise, warrantless entries into

2 Several courts have expressed the view

that if certain evidence inevitably would have been

discovered by lawful means, such evidence is not to be

excluded merely because initially obtained by an

improper seizure or entry. Wayne v. United States,

318 F.2d 205 (0.C. Cir.), cert. ied,

(1963); United States ws Seohnlein, 423 x 2d 1051 (4th

Cir.), cert. dented, U.S. 913 (1970); poke e v.

Superior Court of * A eles County, 3 66,

cert. ed, 402 U. 5. 91⁰

(1971). Since the warrant here was already being pre-

pared and would have led to the discovery of the

evidence, this rule would make the evidence admissible

even if the prior entry was unlawful and constituted a

seizure.

residences, while per se unreasonable, may be

justified under exigent circumstances, such as —

risk that evidence will be lost or destro

dee v. Louisiana, 399 U.S. 30, 34-35 (1970); “unite

States v. Edwards, supra, 602 F.2d 458, 468 (ist Cir.

vert United States v icariello, 568 F.2d 222 (ist

Cir. 1978); Untted States v. MeL lin, 525 F.2d 517

ian. STS); e Sent % ae 2

414 5 v. Rubin, 474 F. 0 r.), cert.

dented, M18 U.S, 833 (1973).

Contrary to the contention of Keeter and

—1 Heaton v. Commonwealth, 215 Va. 137, 207 S. E. 2d

29 (1574), is inapposite. Tn Heaton, we acknowledged

— general rule that “no-knock™ entries to search

pursuant to search warrants are per se unreasonable,

subject to exceptions under exigent circumstances.

Thus, the same principles that apply to warrantless

entries aply to “no-knock" entries by law enforcement

officers armed with search warrants. We held in

Heaton, however, that a “no-knock" entry is not

ied “where the only exigent circumstance is the

readily disposable nature of the contraband that is

the object of the search." 215 Va. at 139, 207 S.E.2d

at 831. Nevertheless, an exigent circumstance exists

justifying such an entry where the law enforcement

officers have probable cause to believe that it is

necessary to prevent destruction of evidence. Johnson

v. Commonwealth, 213 Va. 102, 189 S. E. 2d 678 (1972),

cert. dented, 409 U.S. 1116 (1973). In the present

case, the police officers made their warrantless entry

relying upon their belief that it was necessary to

prevent destruction of evidence. If they had probable

cause so to believe, their entry was justified.

Therefore, in each case a determination must

be made whether the law enforcement officers had pro-

bable cause at the time of their warrantless entry to

believe a = * izable exigent circumstances were

present. icers are not required to possess

either the e of prophecy or the infallible wisdom

that comes only with hindsight. They must be judged

9 086

by their reaction to circumstances as they reasonably

appeared to trained law enforcement officers to exist

when the decision to enter was made.

Applying this standard, we hold that the

warrantless entry in the present case was justified.

Obviously, the “controlled purchase" by Watkins was

carefully planned and observed in order to locate the

source of supply of marijuana obtainable at the White

Heron. The surveillance conducted by various police

officers disclosed factual information that gave them

probable cause to believe that an unknown quantity of

marijuana and the $480.00 in marked currency used by

Watkins was at 2508 Reagan Avenue. Andrews and Harris

then relieved Hymons in surveillance at the residence,

and Hymons left to carry out Andrews's instructions

that he obtain a search warrant for the property.

Andrews and Harris knew that two prime

suspects had left the dwelling; they did not know

that anyone remained inside. Andrews received radio

reports from Bach, who was following the prime

suspects, that they were proceeding on Laskin Road in

the direction of the White Heron, where Andrews knew

that Detective Schmeh] was still “effecting arrests

and removing vehicles and taking care of the

Robertses." When Andrews observed movement in the

house and saw an occupant come to the window and look

out, he became apprehensive that the surveillance

would be discovered and the search frustrated.

Although he and Harris were in an unmarked police car,

he felt that anyone looking at the car could easily

identify it. But the chief concern of both officers

was that the two suspects in the Bronco would observe

the police activity at the White Heron and get word

back to the residence to rid of the incriminating

evidence. Acknowledging that he made a “split-second

decision,” Andrews said that he and Harris made their

move to : svent the evidence from being destroyed.

As it turned out, the suspects stopped at a

restaurant and did not go to the White Heron, but

Andrews acted on what appeared at the time to be the

=

reasonable probability, rather than the mere

suspicion, that they would continue to the scene of

the marijuana transaction and thereafter resort to

p t and evasive means to protect themselves. We

conclude that the officers had probable cause to

believe that it was necessary to make the warrantless

entry to prevent the destruction of evidence. It

follows that the trial court did not err in failing to

determine that there were no exigent circumstances to

justify the entry.

For the reasons assigned, we will affirm the

judgment of the trial court.

Affirmed.

9.6.2.C

Me

VIRGINIA:

In the Supreme Court of Virginia held at the

Supreme Court Building in the City of Richmond on

Friday the 12th day of June, 1981.

Walter Lee Keeter, Jr., and

Bernard Thomas Bray, Appellants,

against Record No. 801078

Circuit Court Nos. D-6278 and D-6261

Commonwealth of Virginia, Appellee.

Upon an appeal from

judgments rendered by the

Circuit Court of the City

of Virginia Beach on the

14th day of April, 1980.

For reasons stated in writing and filed with

the record, the court is of opinion that there is no

error in the judgments appealed from. Accordingly,

the judgments are affirmed. The appellants shall pay

to the Commonwealth of Virginia Thirty Dollars

($30.00) damages and the costs expended herein.

This order shall be forthwith certified to

the said circuit court.

A Copy,

Teste:

Clerk

Appellee's costs:

Attorney's fee $ 50.00

Printing brief 100. 00

Total $150.00

Clerk

Teste:

9.6.4.C

8

VIRGINIA:

In the Supreme Court of Virginia held at the

Supreme Court Building in the City of Richmond on

Tuesday the 9th day of December, 1980.

Walter Lee Keeter, Jr., and

Bernard Thomas Bray, Appellants,

against Record No. 801078

Circuit Court Nos. D-6278 and D-6261

Commonwealth of Virginia, Appel lee.

From the Circuit Court of the City of

Virginia Beach

Upon the petition of Walter Lee Keeter, Jr.,

sometimes known as Walter L. Keeter, and Bernard

Thomas Bray, sometimes known as Bernard T. Bray, an

appeal is awarded them from judgments rendered by the

Circuit Court of the City of Virginia Beach on the

14th day of April, 1980, in prosecutions by the

Commonwealth against the said petitioners for

felonies.

This appeal, however, is limited to the con-

sideration of assignment of error No. 2 which reads as

follows:

2. The trial court erred in failing to

determine that there were no exigent circumstances

which would justify the entry by law enforcement offi-

cials onto premises for which a search warrant sub-

sequently issued.

On further consideration whereof, it is

ordered that the parts of the record to be printed or

reproduced in the appendix are to be limited to those

parts of the record germane to assignment of error No.

2, and the briefs to be filed shall be limited to such

discussion as is relevant to the assignment of error

upon which this appeal is awarded.

— =

The petition for appeal is refused as to the

remaining assignments of error.

A Copy,

Teste:

Clerk

9.6.3.C

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