Petition for Writ of Certiorari — Smith v. Virginia

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92-835 Eupreme Comt, U8 |

In Che NOV 1982

Supreme Court Of Che Uni

~*~

OCTOBER TERM, 1992

RODNEY WAYNE SMITH,

Petitioner,

COMMONWEALTH OF VIRGINIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE VIRGINIA COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

William H. Hurd

Attorney at Law

2803 McRae Road

Richmond, VA 23235

(804) 272-2006

Counsel for Petitioner

LAWYERS PRINTING COMPANY 7th & Franklin Bidg Richmond. Virginia 23219 (804) 648 - 3664

QUESTIONS PRESENTED FOR REVIEW

cae Can the alleged fear of

discovery justify the warrantless entry

nto a house, where any risk of discovery

was created by the police?

2.) Can a tear of discovery

sufficient to create an exigent

Circumstance be based on police

confrontation with a third party when

there is little or no evidence that the

third party knew the suspect or knew that

the suspect was under investigation?

Bal Can a search warrant be an

independent source of evidence where

inforamtion gained during an illegal entry

vaS a substantial contributing factor to

the issuance of the warrant?

4.) Can a search warrant, even if

otherwise valid, be an independent source

of evidence discovered during an illegal

entry and continuously kept in police

possession?

5.) Should the "beyond a reasonable

doubt” standard be used to evaluate the

harmfulness of evidence which violate the

Confrontation Clause and against which

defense counsel raised a hearsay

ob yection?

PARTIES TO THE PROCEEDING

The names of all parties to the

proceeding in the court whose judgment

1S sought to be reviewed appear in the

caption of the case.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW... . 1

PARTIES TO THE PROCEEDING ......, 11

TABLE OF AUTHORITIES .....+2..e V

ReSORte OF OPERIONS . . ss es se «ts 1

GROUNDS OF JURISDICTION ......., 1

CONSTITUTIONAL AND STATUTORY PROVISIONS 2

STATEMENT OF THE CASE ......... 5

APOE Ss 6 ¢. %. ae O.G ele ee eee 15

A THE WARRANTLESS ENTRY CANNOT

BE JUSTIFIED BY THE EXIGENT

CIRCUMSTANCE EXCEPTION SINCE

THE POLICE CREATED THE EXIGENCY. . 15

B. EVIDENCE SEIZED BY POLICE DURING

ILLEGAL, WARRANTLESS ENTRY CANNOT

BE SAVED BY THE INDEPENDENT SOURCE

DOCTRINE AND SHOULD BE SUPPRESSED. 26

A. Information Gained During The

Warrantless Entry Affected The

Decision To Issue The Warrant. .. 28

B. The Warrant Cannot Save Evidence

Discovered Before It Issued And

Continuously In Police Possession. 32

sp The Error Was Not Harmless. ... 36

iii

III. IMPROPER HEARSAY ABOUT VEHICLE

REGISTRATION VIOLATED THE SIXTH

AMENDMENT CONFRONTATION CLAUSE.

CONCLUSION

CERTIFICATE OF SERVICE

APPENDIX

arr

TABLE OF AUTHORITIES

Cases:

California v. Green,

33935 U.S. 1495, 9@ $.Ct. 193¢e,

26 &.BG. 86 BOP (i976). «= 2 6) es 43

Chapman Vv. California,

366 U.S. 18, 87 §&.Ct. 824,

a7 Dee OG. 2G TOS (1967) . . « 2» « passim

Coleman v. Johnson,

574 F.Supp. 3692

[Wcus: Wt BOGS es bo is © ee ee 45, 46

Crosby v. Commonwealth,

6 Va.App. 193,

gat @om.ae tame ties}... 6s « 21

Illinois v. Gates,

Gwe Gies sae (3298S): « « « » « s BB, B2

Mattox v. United States,

see Vih. wats, £5 S.Ct. 337.

39 L.Ed. 409 (1895) eg Se te Na 43

Murray v. United States,

G7 G.8. Gaa, 186 8.Ct. 2329,

SG. &.1BG.264 672 (24966) ... « passim

Ohio v. Roberts,

€48 U.S. 36, 100 §.Ct. 2531,

> &. 80.26 S37 (1960) ... « « 44, 46

Payton v. New York,

445 U.S. 373, 101 §.Ct&. 1371,

63 L.Bd.2d 639 (1980). ...... 19

United States v. Allard,

634 F.2d 1182, (9th Cir. 1980) .. 20

United States v. Curran,

Gre Ci. 200 oe. teem GCAb. 1976). «- “s4 21

United State v. Giordano,

COn Dies Dee heres 35 4 ssw OO

United States v. MacDonald,

916 F.2d 766 (2nd Cir. 1990) .. 22, 27

United States v. Napue,

834 F.2d 1311 (7th Cir. 1987) .. 28

United States v. Rosselli,

506 F.2d 627 (7th Cir. 1974) 20, 27, 28

United States v. Salvucci,

448 U.S. 83, 100 S.Ct. 2547,

6S &.BG.2@ 619 (1980). ...e ew 22

United States v. Secura,

663 F.2d 411 (2nd Cir. 1981),

aff'd 468 U.S. 796, 104 S.Ct. 3388,

oe ees Oe ee ee passim

United States v. Whitehorn,

S23 £.24 1228, (2ad Cir.),

cert. denied 487 U.S. 1237,

Rape Sears ee a6. 6. uo uw. we. etal 39

White v. Illinois,

6@ U.S.L.W. 4094, _ U.S.

a et ee as Mee et eee eee 44

Constitution, Statutes and Rules:

4th Amendment, U.S. Constitution.

6th Amendment, U.S. Constitution.

14th Amendment, U.S. Constitution.

Va. Code Section 8.01-678.

Va. Code Section 18.2-248.1.

Vil

passim

REPORTS OF OPINIONS

There is no reported decision in this

case by another court. The unpublished

Opinion of the Virginia Court of Appeals

and the decision by the Supreme Court of

Virginia are set forth in the Appendix to

this Petition.

GROUNDS OF JURISDICTION

On August 10, 1992, the Supreme Court

of Virginia refused the Petition for

Appeal of Rodney Wayne Smith. The

Statutory provision believed to convey on

this Court jurisdiction to review the

judgment or decree in question by writ of

certiorari is 28 U.S.C. Section 1257(c).

CONSTITUTIONAL AND

STATUTORY PROVISIONS

The constitutional provisions involved

in this case are as follows:

(A.) Fourth Amendment to the United

States Constitution:

"The right of the people to be secure

in their persons, houses, papers, and

effects, against unreasonable

searches and seizures, 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.”

(B.) Sixth Amendment to the United

States Constitution:

"In all criminal prosecutions, the

accused shall enjoy the right...to be

confronted with the witnesses against

+o Paes

fe th Amendment to the

United States Constitution:

"No state shall...deprive any person

of life, liberty, or property,

without due process of law...”

The statutory provisions involved in

this case are as follows:

(A.) Va. Code Section 182.-248.1(a)

(2) and (3):

" .,it shall be unlawful for any

person to sell, give, distribute or

possess with intent to sell, give or

distribute marijuana.

"(a) Any person who violates this

section with respect to:

"(2) More than one-half ounce but

not more than five pounds of mari-

juana is guilty of a Class 5 felony;

"(3) More than five pounds of

marijuana is guilty of a felony

punishable by imprisonment of not

less than five nor more than thirty

years.”

(B.) Va. Code Section 18.2-190:

"The authorized punishments for

conviction of a felony are:

(e) For Class 5 felonies, a term of

imprisonment of not less than one

year nor more than ten years, or in

the discretion of the jury...confine-

ment in jail for not more than twelve

months and a fine of not more than

$ 1,000, either or both."

(¢.3 Va. Code Section 8.901-678:

"When it plainly appears from the

record and the evidence given at trial

that the parties have had a fair

trial on the merits and substantial

justice has been reached, no judgment

shall be arrested or reversed:

"(2) For any...error committed on the

trial."

STATEMENT OF THE CASE

On the morning of December 16, 1988,

police set up surveillance of the house at

4809 Portsmouth Boulevard in Chesapeake,

Virginia, which they thought was being

used for the distribution of marijuana.

At about 5:00 p.m., a white Saab with two

occupants pulled into the driveway of the

premises. The driver of the car, a police

informant, waited while his passenger went

inside the house. A few minutes later,

the passenger returned. None of the

officers saw whether the passenger was

carrying anything when he left the house.

Once the passenger was back inside the

car, it drove away.

The Saab crossed into an adjacent

city, followed by two policemen. At $:25

p.m., they stopped the Saab and found the

vehicle to contain marijuana. The

passenger, Steve Briand ("Briand"), was

arrested and taken into custody.

At approximately 6:15 p.m., the two

policemen who followed the Saab returned

to the house at Portsmouth Boulevard,

where police cars were already waiting

in the driveway. The police decided to

“secure” the house until a search warrant

could be obtained. One officer went

to the front door of the house with the

intention of knocking while a group of

other officers, dressed in plain clothes,

went around to the back door.

According to the Commonwealth’s

evidence, as the police came around

the rear of the house, Smith opened the

back door and stepped forward onto the

small concrete back porch. He was

carrying with him one or more large green

plastic bags of the kind widely used for

household garbage. Upon spying Smith, the

police yelled and shined their flashlights

at him. Smith stepped back inside and

locked the door. The police then gave

chase, breaking down the door and charging

into the house.

According to Smith’s evidence, he did

not go to the back door, and was talking

on the telephone when the police entered.

Even on appeal, this dispute in the

evidence is relevant because it may bear

on the question of whether the unconstitu-

tional hearsay was harmless.

Once the police entered the house,

they found several clear bags of marijuana

lying in the bedroom, including some they

said spilled from the large trash bag they

said Smith was carrying. They also found

Debbie Steele (“Steele”) and her three

minor children. The police then proceeded

to secure the premises.

Smith and Steele were both arrested

and taken away. A search warrant was then

obtained based upon an affidavit that

included material facts observed during

1 With

the warrantless entry. (A. 66.)

warrant in hand, the police discovered

some additional marijuana as well as

several thousand dollars in money. The

total weight of all marijuana introduced

into evidence was 12.1 1bs. Only one

overall tabulation was introduced. There

was no breakdown between the quantities

found before and after the issuance of the

warrant.

At trial, it was undisputed that

Smith and Steele were co-lessee’s of the

house, that Steele lived there with her

three minor children, and that Smith--who

was not married to Steele--was the father

1 Page references are to the

Appendix at the back of this Petition.

of the children. It was also undisputed

that Smith still had some property there.

What was disputed was whether Smith

resided there or was merely visiting on

the day in question. Two witnesses swore

that Smith was a resident of Windsor. No

fingerprints of Smith were found, nor was

there any evidence of adult male clothing

stored on the premises. Moreover, none of

the policemen were able to say that they

saw Smith arrive before the visit by the

white Saab.

Instead, the Commonwealth relied

heavily upon the testimony of two officers

who broke off their surveillance of the

house to attend to other business for i5-

22 minutes in the afternoon. When they

returned, the vehicle previously sitting

in the front yard had been joined by a

second vehicle. No one saw the driver of

either of these vehicles, but the two

officers testified--over the objection of

defense counsel--that both vehicles were

registered to Smith. One officer went so

far as to say that the vehicles were

registered to Smith at that address.

Other evidence--apparently rejected

by the jury in the face of the testimony

about vehicle registration--was that Smith

caught a ride from a friend, and did not

arrive until about 5:3@ or 6:00. This was

after the white Saab left, carrying away

Briand, the one clear marijuana trafficker

in the entire case. This testimony came

from Steele, who also admitted that Briand

was the owner of the marijuana and that

she let Briand use her house as a place to

hide it.

Smith was charged with possession

with intent to sell more than five pounds

of marijuana, in violation of Va. Code

Section 18.2-248.1(a)(3). Under Virginia

120

law, this is a far more serious offense

than possessing five pounds or less. The

defendant is exposed to a maximum of 30

years imprisonment rather than a maximum

of 10. Compare Va. Code Section 18.2-

248.1(a)(2) and (3).

Smith filed a written motion to

suppress all evidence obtained by the

police from the premises where he was

arrested, whether obtained through their

warrantless entry or through their

subsequent use of a search warrant. (A.

73.) This motion was denied by the trial

court at a pre-trial suppression hearing.

(A. 76.)

Smith then re-filed his motion to

suppress. (A. 77.) He also raised the

issue orally, both at the beginning of

trial and at the conclusion of the

prosecution’s evidence. The motions were

again denied. (A. 79, 8@.)

During the trial, defense counsel

twice voiced the concise objection

"hearsay” to police testimony linking

Smith to two vehicles parked at the

Portsmouth Boluevard address where the

Marijuana was found. These objections

were overruled and the testimony was

admitted into evidence. Smith was

convicted as charged and sentenced to 25

years in prison.

Smith then petitioned the Virginia

Court of Appeals. The suppression issues

were raised and argued by Smith in his

Fetition for Appeal, Brief of Appellant

and Reply Brief of Appellant. The

Virginia Court of Appeals held that entry

by police on the premises before obtaining

the search warrant was not unlawful and

that, even if the entry had been unlawful,

sufficient untainted information was

contained in the affidavit to justify

issuance of the warrant.

Appealing to the Virginia Court

of Appeals, Smith further articulated his

objection to the testimony about vehicle

registration, expressly addressing both

common law and Sixth Amendment components

of his previous “hearsay” objection.

These arguments were contained in his

Petition for Re-hearing (following the

initial refusal to grant an appeal on this

testimony), the Brief of Appellant, Reply

Brief of Appellant and Petition for Re-

hearing. The Virginia Court of Appeals

held that the testimony in question was

hearsay, but ruled that it was harmless

under a standard used in cases of non-

constitutional error. Thus, the Virginia

Court of Appeals implicitly declined to

pass upon the Sixth Amendment implications

of the objection.

The Fourth Amendment suppression

issues, as well as the Sixth Amendment

confrontation issue, were also raised by

Smith in his Petition for Appeal to

the Supreme Court of Virginia; but, the

Petition for Appeal was refused.

ARGUMENT

I. THE WARRANTLESS ENTRY CANNOT

BE JUSTIFIED BY THE EXIGENT

CIRCUMSTANCE EBXCEPTION SINCE

THE POLICE CREATED THE BXIGENCY .

"(T]he Fourth Amendment has drawn a

firm line at the entrance to the

house. Absent exigent circumstances,

that threshold may not reasonably be

crossed without a warrant.”

Payton v. New York, 445 U.S. 573,

590, 101 S.Ct. 1371, 1382, 63 L.Bd.2d

639 (1980).

In the case at bar, the police entered

the house on Portsmouth Boulevard without

a warrant, based upon their alleged fear

of discovery, and found both Saith and a

supply of marijuana. At issue in the

case is whether police may use fear of

2 Although Smith did not live at the

Portsmouth Boulevard address, he neverthe-

less had a possessory interest in the

premises as a co-lessee who still had some

property there. At the time of the

warrantless entry, Smith was visiting the

other co-lessee, Steele, who lived in the

discovery to justify a warrantless entry

when the risk of discovery was created by

the police. Several of the United States

courts of Appeal have ruled, in one form

Or another, against the use of police-

created exigencies. These include United

States v. Allard, 634 F.2d 1182, 1187 (9th

Cir. 198@); United States v. Rosselli, 506

F.2d 627 (7th Cir. 1974); United States v.

Segura, 663 F.2d 411 (2nd Cir. 1981),

aff’d on other grounds, 468 U.S. 796, 104

S.Ct. 3388, 82 L.Ed.2d 599; United States

v. MacDonald 916 F.2d 766 (2nd Cir. 199@).

house together with their gminor children.

Based on these facts, Smith had a

reasonable expectation of privacy s0 as to

give him standing to raise a Fourth

Amendment objection to the warrantless

entry by the police. See United States v.

Salvucci, 448 U.S. 83, 100 8.Ct. 2547, 65

L.Ed.2d 619 (1980).

In the case at bar, the Virginia

Court of Appeals paid lip service to this

rule,> but failed to apply it to the

facts of the case, deciding instead that

exigent circumstances justified the

warrantless entry. Although the Court

ascribed its decision to what it termed

"the totality of circumstances” (A. 58.),

the central and decisive factor was police

fear that their own actions would cause

them to be discovered before a warrant

could be obtained:

"{A]fter the sale to Briand, the

police had detained and released the

occupants of three vehicles that had

stopped at the residence. Any of the

persons in those vehicles could have

telephone appellant’s residence and

advised him of their experience,

alerting Smith to the surveillance.

3 The Court of Appeals said that “a

warrantless entry is justified when.

(3) the police did not create the exigency

which is the basis of the entry.” citing

Crosby v. Commonwealth, 6 Va. App. 193,

200-01, 367 S.B.2d 730, 735 (1988).

"This fear of discovery is itself an

exigent circumstance.’ United States

v. Curran, 498 F.2d 30, 35 (9th Cir.

1974).”

(A. 57 )

If there was any risk of discovery

here, which Smith disputes, it was plainly

a risk created by the police. Moreover,

it was a risk unreasonably created because

there was insufficient reason for the

police to confront third parties by

stopping and detaining the three other

vehicles in question.

If the police had probable cause to

believe that the three other vehicles they

stopped contained marijuana, then perhaps

they could be excused for having created

any resultant risk of discovery. The facts

show, however, that the police had no such

probable cause, nor even a reasonable

suspicion that the vehicles contained

marijuana. Although there is evidence

that the three other vehicles “went up” to

the house in question after the white Saab

left the premises, there is no evidence

anyone got out of any of these vehicles

and entered the house, or vice versa, nor.

is there any evidence that the police were

expecting a delivery of illegal drugs to

the premises. Indeed, there is no reason

to believe that the three other vehicles

were doing anything more sinister than

turning around in the driveway; and, since

the burden of justifying the warrantless

entry is on the government, any deficit in

evidence on this point rust be held

against the prosecution, not against

Saith.

Even if there had been contact

between occupants of the house and

occupants of the vehicles, there would

still be a critical element missing in

trying to establish a reasonable basis for

the stop of the vehicles, since there is

no evidence that the three other vehicles

were stopped only after the discovery of

marijuana in the white Saab gave probable

cause to believe marijuana was in the

house. Without probable cause to believe

there was marijuana in the house, there

was surely no reason to believe that the

three other vehicles that wandered onto

the scene had any connection whatsoever to

criminal activity.

Indeed, even after the three

vehicles were stopped, there was no

evidence that the occupants were connected

to marijuana trafficking, o~ knew the

house was being used for that purpose, or

knew their stop was related to their brief

appearance at the house, or even knew the

occupants of the house. Thus, the basic

police contention that stopping these

three vehicles created a risk of discovery

is unpersuasive. There was insufficient

reason for the police to to believe that

anyone was going to call the house at

Portsmouth Boulevard and warn ther about

police activity. Thus, not only must the

police be faulted for creating any risk of

discovery that may have existed, but the

alleged risk of discovery must be deend

too speculative to be the basis for a

warrantless entry.

Whether a risk of discovery may be

Said to exist--and when the police may be

excused from having creating it--are

important federal questions that have not

been, but should be, decided by this

Court. While the existence of a risk of

discovery may be a largely fact-specific

question, this case nevertheless affords

the opportunity to establish some general

guidelines.

Smith contends that, in order for

police confrontation of third parties to

give rise to a judicially cognizable fear

that the third parties will warn the

suspects, there normally must be evidence

(i) that the third parties knew the

suspects, and (ii) that the third parties

knew that the police had the suspects

under investigation. Under the facts of

this case, neither of these two factors

are present. Given the lack of any

movement or communication between the

vehicles and the house, there is no

evidence that the occupants of the

vehicles knew the occupants of the house.

Moreover, there is no evidence that the

occupants of the vehicles would have

inferred that the reason for their having

been stopped was linked to their brief

appearance at the premises in question.

With respect to when the police may

be excused for having created an exigency,

there is a split among the U. S. Courts of

Appeal so as to warrant this Court

deciding the ciestion. In Segura, supra,

the Second Circuit appeared to endorse a

more expansive view of police fault, but,

in MacDonald, supra, it retreated to the

view that police are to be faulted for

created an exigency only when it is the

result of illegal police activity. By

contrast, the Seventh Circuit appears to

hold to a very expansive view, as

expressed in Rosselli, supra, which goes

well beyond fauiting police for illegal

conduct. Indeed, in Rosselli, the police

action that was held to have impermissably

created an exigency was a simple act of

omission: the failure of police to leave

an agent with the co-tenant of an arrested

drug dealer while a warrant was obtained

to search tiie apartment of a confederate.

506 F.2d at 629. While Segura may no

longer be good law in the Second Circuit,

both Segura and Rosselli appear to have

survived in the Seventh Circuit, having

been cited approvingly as recently as

United States v. Napue, 834 F.2d 1311,

1328 (7th Cir. 1987).

Smith contends that, when the police

activity in question involves the

confrontation and temporary detention of

third parties, the police must bear the

burden of any risk of discovery thereby

created unless, at a minimum, their action

meets the following criteria: (i) the

confrontation is reasonably designed to

advance legitimate investigative

interests, (iii) it is carried out in a

manner that does not needlessly increase

the risk of discovery, and (iii) any

temporary detention passes constitutional

muster. Without these or similar

safeguards, it will be far too easy for

police to evade the warrant requirement by

the wholly gratuitous confrontation or

temporary detention of third parties,

whose contact with police could then be

used to assert a fear that the third

parties will warn the suspects. The

stopping and temporary detention of the

three vehicles in question failed on

points (i) and (iii) since it was neither

a reasonable investigative procedure nor

constitutionally justified. With respect

to point (ii), there is no evidence that

the three vehicle stops were carried out

in a manner that unreasonably increased

the risk of discovery. And, while this

would tend to diminish police responsi-

bility for any such risk, it also

diminishes the alleged risk on which the

police rely.

B. EVIDENCE SEIZED BY POLICE DURING

ILLEGAL, WARRANTLESS ENTRY CANNOT

BE SAVED BY THE INDEPENDENT SOURCE

DOCTRINE AND SHOULD BE SUPPRESSED.

Following the warrantless entry, the

police presented to a local magistrate an

affidavit for search warrant that combined

information obtained prior to the entry

with information obtained during the

entry. (A. 66-72.) The Virginia Court of

Appeals found the warrant to be valid,

despite the presence of facts obtained

during the entry:

“Notwithstanding the alleged

tainted material facts contained in

the affidavit, “putting aside all

tainted allegations, the independent

and lawful information stated in the

affidavit suffice[d] to show probable

cause.” United States v. Giordano,

416 U.S. 505, 555 91974) (Powell, J.,

concurring in part, dissenting in

part). This information provided the

necessary “substantial basis” from

which to conclude the contraband was

in the house. See Illinois v. Gates,

462 U.S. 213, 236 (1983).”

(A. 58, 59.)

The problem with this analysis is

that the Court of Appeals used the wrong

standard. The effect of an illegal entry

upon a subsequent search warrant for the

same premises must be measured by the

guidelines enunciated in Murray v. United

States, 487 U.S. 533, 108 S.Ct. 2529, 101

L.Ed.2d 472 (1988), a case decided after

the Giordano and Gates cases on which the

Court of Appeals relies.

In Murray, federal agents followed

two vehicles as they left a warehouse,

legally stopped them some distance away,

and found them to be carving marijuana.

The agents then returned to the unoccupied

warehouse, where they Proke in and found,

in plain view, numerous burlap-wrapped

bales of what later proved to be

marijuana. The agents then left the

warehouse--with the bales undisturbed--and

sought out a magistrate, from whom they

obtained a search warrant. In applying

for the warrant, the agents omitted any

reference to the warehouse break-in. Upon

returning to the warehouse with the

warrant in hand, the agent seized the

bales which now proved to be marijuana, as

well as certain previously undiscovered

records. Two points in Murray touch upon

the question of whether the independent

source doctrine would permit the govern-

ment to introduce the evidence collected

pursuant to the search warrant at the

scene of the previous illegal entry.

A. Information Gained During The

Warrantless Entry Affected The

Decision To Issue The Warrant.

The first point in Murray deals with the

connection between illegally discovered

evidence and an ensuing warrant. The

Court said:

“The ultimate question, therefore, is

whether the search pursuant to

warrant was in fact a genuinely

independent source of the information

and tangible evidence at issue here.

This would not have been the case if

the agents’ decision to seek the

warrant was prompted by what they had

seen during the initial entry, or if

information obtained during that

entry was presented to the Magistrate

and affected his decision to issue

the warrant.”

487 U.S. at 542, 108 S.Ct. at 2536;

emphasis added.

What is unclear from the decision

in Murray is exactly what is meant by the

phrase “affected his decision to issue the

warrant.” At least two interpretations

suggest themselves:

(i) Is the tainted information a

substantial contributing factor to the

decision to issue the warrant?

(ii) Is the tainted information

necessary to a issue the warrant?

In the case at bar, even if the

tainted information was not necessary to a

finding of probable cause, it was never-

theless a substantial contributing factor

to the magistrate’s decision to issue the

warrant. As shown by the affidavit for

search warrant, the information the police

presented to the magistrate included

substantial details about what he saw

during his entry into the house at

Portsmouth Boulevard, including marijuana

on the floor, marijuana allegedly spilling

from the bag Smith was carrying, and

marijuana on the kitchen table. As the

police knew and intended in preparing the

affidavit, this sort of “caught-erm-red-

handed” evidence is so overwhelming as to

contribute substantially to any

magistrate’s decision whether to issue a

warrant.

Thus, the question is which of the

two interpretations of Murray is more

appropriate. Given that the purpose of

the exclusionary rule is to provide

an incentive against government viclations

of the Fourth Amendment, the better

approach is to deny a warrant its status

es an independent source if the tainted

information is a “substantial contributing

factor” to the magistrate’s decision.

By basing its decision on whether the

untainted facts provide a “substantial

basis” for the warrant, the Virginia Court

of Appeals has adopted an approach which

resembles the second, more permissive

interpretation of Murray. Thus, the state

court has decided an important question of

federal law which has not been, but should

be settled by this Court.

B. The Warrant Cannot Save Evidence

Discovered Before It Issued And

Continuously In Police Possession.

The second point in Murray deals with

the question of whether even a valid

warrant can be a genuinely independent

source of evidence already discovered by

the police and continuously in their

possession. In United States v. Segura,

supra, the Second Circuit drew a

distinction between evidence discovered

and seized during an illegal entry and

evidence discovered only after the

subsequent issuance of a valid search

Warrant. The Second Circuit excluded the

former kind of evidence, but allowed the

latter.

When Segura was heard by this Court

on writ of certiorari, no issue concerning

items observed during the initial entry was

considered. Segura v. United States, 468

U.S. 796, 8@4, 104 S.Ct. 3388, 82 L.Ed.2d

599 (1983). The Court did, however,

signal its apparent agreement with the

suppression of pre-warrant evidence when

it wrote, in dictum, that “officers who

enter illegally will recognize that

whatever evidence they discover as a

direct result of the entry may be

suppressed, as it was by the Court of

Appeals in this case.” 469 U.S. at 812.

In Murray, this Court strongly

implied a view consistent with the Second

Circuit’s exclusion of illegally

discovered and seized pre-warrant

evidence. Commenting on the independent

source doctrine, this Court said:

"So long as a later, lawful seizure

is genuinely independent of an

earlier, tainted one (which may be

difficult to establish where the

seized goods are kept in the police’s

possession) there is no reason why

the independent source doctrine should

not apply.”

487 U.S. at 542, 108 S.Ct. at 2535.

It is the parenthetical phrase in the

above quotation that aligns this Court in

Murray with the Second Circuit in Segura.

Smith recognizes that the parenthetical

phrase is dictum since the federal agents

in Murray completely departed from the

warehouse when they went to seek a

Warrant, thereby relinquishing possession

of the evidence. In present case,

however, the police exercised continuous

dominion and control over the premises and

everything in it from seconds after they

entered until after the warrant arrived

several hours later. Smith contends that

this continuous police possession of the

unlawfully seized goods prevented a truly

independent re-seizure from occurring, so

that the independent source doctrine does

not come into play.

Smith also recognizes that the Second

Circuit has now disavowed that portion of

its decision in Segura that evidence

illegally discovered prior to a warranted

search must necessarily be suppressed.

United States v. Whitehorn, 829 F.2d 1225,

1231 (2nd Cir. 1987), cert. denied 487

U.S. 1237, 108 S.Ct. 2907. Yet, the dictum

in Murray, which came after Whitehorn,

suggests that this Court may approve of the

Second Circuit’s original position in

suppressing the pre-warrant evidence.

This case furnishes an opportunity

for the Court to declare whether the view

suggested by its remarks in Segura and

Murray is to be its established ruling on

the issue. By failing to address the

issue in its opinion, the Virginia Court

of Appeals in effect rejected the Segura -

Murray dictum. Thus, the state court

implicitly decided an important question

of Fourth Amendment which has not been, but

should be settled by this Court.

C. The Brror Was Not Harmless.

Smith concedes that, even under the

standard enunciated by the Second Circuit

in Segura, marijuana that was not

discovered until a valid search warrant

was issued would be admissible. Yet,

under the facts of this case and

assuming the warrant to be valid, the

introduction of the admissible marijuana

does not render harrgless the introduction

of the marijuana that should have been

suppressed. The record does not show

separate measurements for the two seizures

of the substance. If the illegally seized

marijuana were excluded from evidence,

as it should have been, Smith might still

be convicted of simple possession; but, it

cannot be said beyond a reasonable doubt

that he would have been convicted of the

more serious offense of possessing more

then five pounds of the substance. Thus,

the admission of the pre-warrant evidence

was not harmless “beyond a reasonable

doubt” and the conviction must be

overturned. Chapman v. California, 386

U.S. 18, 87 S.CT. 824, 17 L.Ed.2d 705

(1967).

III. IMPROPER HEARSAY ABOUT VEHICLE

REGISTRATION VIOLATED THE SIXTH

AMENDMENT CONFRONTATION CLAUSE.

The Court of Appeals ruled correctly

that the trial court violated the hearsay

rule by admitting police testimony that

two vehicles parked in front of 4809

Portsmouth Boulevard belonged to Smith and

were registered to him at that address.

The Court was mistaken, however, in

evaluating the harmfulness of the error

under the state standard used for errors

of non-constitutional dimension. The

state standard, found at Va. Code Section

8.01-678, provides no judgment shall be

reversed for any error committed at trial

if “it plainly appears...that the parties

have had a fair trial on the merits and

substantial justice has been reached.”

(Emphasis added.) This “plainly appears”

standard is more tolerant of error than

the standard prescribed for errors of

constitutional dimension, which requires a

finding that the error was harmless

“beyond a reasonable doubt.” Chapman

v. Ca ornia, supra.

In arguing to the Virginia Court of

Appeals, Smith maintained that the hearsay

in question violated his right to confront

and cross-examine his accusers, as

guaranteed by the Sixth and Fourteenth

Amendments to the U.S. Constitution. The

Commonwealth objected to this argument

ee ee ee a ee

being considered, claiming a procedural

bar on the grounds the argument had not

been raised before the trial court. The

Court of Appeals apparently concurred,

Since it applied the non-constitutional

standard to the error it found. Smith

disagrees and contends that the

constitutional objection is fairly

contained within the concise “hearsay”

objection offered by Smith’s counsel at

trial.

Common law hearsay rules and the

Confrontation Clause are designed to

protect similar values. Califo av.

Green, 399 U.S. 149, 155, 9@ S.Ct 1930,

1933, 26 L.Ed.2d 489 (1970). Those values

include the right of an accused to

confront and cross-examine the real

witness against him. Mattox v. United

States, 156 U.%. 237, 242-243, 15 S.Ct.

337, 339, 39 L.Ed. 409 (1895). Indeed,

"the [Confrontation] Clause was intended

to exclude some hearsay,” Ohio v. Roberts,

448 U.S. 56, 63, 100 S.Ct. 2531, 2537, 65

L.Ed.2d 597 (198@) (Emphasis added). The

hearsay objection uttered at trial by

defense counsel was sufficient to raise

both the common law objection and the

Confrontation Clause objection to that

hearsay. Indeed, as recently as White v.

Illinois, 6@ USLW 4094, 4095, U.S.

(1992), this Court considered an

Confrontation Clause objection to

testimony on which the opinion reports

only a “hearsay” objection at trial. The

constitutional objection was likewise

properly raised by Smith’s “hearsay”

objection and should have been considered

by the Virginia Court of Appeals.

Once it is established that the

constitutional objection was not waived,

there can be no doubt that the testimony

io << ll

about vehicle registration violated the

Confrontation Clause. A similar case,

Coleman v. Johnson, 574 F.Supp. 360 (W.D.

Va. 1983) arose out of a prosecution in

which the defendant was convicted on state

charges of burglary and grand larceny.

The defendant petitioned for a federal

writ of habeas corpus. He claimed that a

deputy sheriff's testimony about ownership

of a vehicle in which stolen goods were

found should have been excluded as

hearsay. The federal court agreed, ruling

that the admission of such testimony frorj

the deputy violated the Confrontation

Clause.

As the court in Coleman also noted:

This error of evidential admission

stands in spite of the fact that the

reliability of the information could

have been established by one of two

procedures: namely, by the calling of

the actual compiler of the [DMV]

report as a witness; or pursuant to

Va. Code Sections 46.1-34 and 46.1-

34.1. [mow 46.2-213 and 46.2-215] by

ESE

the proffering of the certification

of the license plate number of the

motor vehicle as prima facia evidence

of ownership.

Id. at 361, 362.

By the same logic, the testimony

about vehicle ownership by the two police

officers in the case at bar was

unconstitutional hearsay and should have

been excluded, especially since the

prosecution made no attempt to demonstrate

the unavailability of the DMV

representative. Ohio v. Roberts, 448 U.S.

56 (1980).

By allowing the unconstitutional

testimony to be evaluated by a less

demanding standard than that required by

Chapman, supra, the Virginia Court of

Appeals decided a federal question ina

way that conflicts with the applicable

decisions of this Court. On this basis,

the error is appropriate for a writ of

certiorari. Smith respectfully requests

| iceaeneaaiaaiaiain i

that a writ be granted on this point; that

the police hearsay be found in violation

of the Confrontation Clause; and that the

conviction be reversed based on the

harmfulness of the unconstitutional

hearsay. In the alternative, if the

conviction is not vacated by this Court,

then Smith asks the case remanded to the

Virginia courts for consideration of the

harmfulness of the hearsay under the

"beyond a reasonable doubt standard” of

Chapman.

While considerations of judicial

economy may make such a remand advisable,

Smith would nevertheless urge the Court

not to view the hargmfulness issue as

foreclosed based the unfavorable analysis

contained in the opinion of the Virginia

Court of Appeals. Perhaps because the

analysis under the state standard was less

demanding, the analysis by the Court of

Appeals contains certain erroneous and

incomplete readings of the record that

would not likely be repeated if the review

were conducted with the more stringent

"beyond a reasonable doubt” standard in

mind. For example, on the question of

where Smith lived, which is the point

addressed by the hearsay, the Court of

Appeals said: “Debbie Steele testified

that Smith lived at 4809 Portsmouth

Boulevard on December 16, 1988." In fact,

the testimony of Ms. Steele was just the

opposite:

Q. Was he living in the home in

December of 1988.

A. No.

Q. And how long had it been since Mr.

Smith lived there?

A. He moved out -- seven rmonths he

had been moved out.

Q. Do you recall where he was living

or do you know where he was living of

you own knowledge?

A. He was living in Windsor.

While other examples could be found,

the point seems clear enough. Once it is

established that the harmfulness of the

hearsay must be reviewed under the Chapman

standard, a new review based directly on

the record would be in order.

CONCLUSION

At trial, a great deal of improper

and very damaging evidence was introduced

against Smith over the objections of his

trial counsel. The evidence violated the

Fourth and Sixth Amendments, as made

applicable to the states by the Fourteenth

Amendment. The improper evidence included

(i) evidence gained by an illegal,

warrantless entry, (ii) evidence gained by

a tainted search warrant, and (iii)

hearsay testimony that two vehicles parked

at the house where marijuana was found

were registered to him at that address.

The trial court and Court of Appeals erred

in allowing this evidence and/or in

deeming it harmless. Smith respectfully

prays that a writ of certiorari be

granted; that the judgment of conviction

should be vacated and the case remanded

for a new trial with the improper evidence

excluded.

Respectfully Submitted,

RODNEY WAYNE SMITH

By Lm APR

Counsel

William H. Hurd

Attorney at Law

2803 McRae Road

Richgond, Virginia 23235

(804) 272-2006

CERTIFICATE OF SERVICE

I hereby certify that, on this 9th

day of November, 1992, I caused three

copies of the foregoing Petition for Writ

of Certiorari to be served, by first class

mail, on Hon. Mary Sue Terry, Attorney

General of Virginia, and H. Blixabece

Schaffer, Assistant Attorney General,

Supreme Court Building, 101 North Eighth

Street, Richmond, Virginia 23219 (804)

LO AR ud

William H. Hurd

786-2071.

[THIS PAGE INITIALLY LEFT BLANK. ]

APPENDIX

COURT OF APPEALS

OF VIRGINIA

Present: Judges Baker, Moon and Willis

Argued at Worfolk, Virginia

RODNBEY WAYNE SMITH

v. RECORD Wo. 0707-9@-1 MEMORANDUM*

OPINION BY JUDGE

COMMONWEALTH OF VIRGINIA WORMAN K. MOON

JANUARY 21, 1992

FOR THE CIRCUIT COURT

OF THE CITY OF CHESAPEAKE

Russell I. Townsend, Jr., Judge

Gary C. Byler (William H. Hurd, on briefs)

H. Blizabeth Shaffer, Assistant Attorney

General (Mary Sue Terry, Attorney General,

on brief), for appellee.

Rodney Wayne Smith seeks reversal of his

conviction of possession of marijuana with

the intent to distribute. He alleges that

(1) trial court erred in refusing to

suppress evidence obtained pursuant to a

search warrant that was issued after the

police had unlawfully entered the premises

under the pretense of securing ther

against destruction of evidence and

contraband; (2) the affidavit for the

search warrant was based upon information

obtained by the illegal entry of the

premises; and (3) the trial court erred in

admitting hearsay evidence that two

vehicles were registered in his name. We

affirm the judgment because we hold that

entry of the premises before obtaining the

search warrant was not unlawful; that even

if the entry had been unlawful, sufficient

untainted information was contained in the

affidavit to justify issuance of the

warrant; and that the error in admitting

hearsay testimony concerning the

registration of two vehicles was harmless

error.

On appeal, we review the evidence in

the light most favorable to the

Commonwealth, granting to it all

reasonable inferences fairly deducible

therefrom. Higginbotham v. Commonwealth,

216 Va. 349, 352, 218 S.B.2d 534, 537

(1975). This Court examines the records

of both the suppression hearing and the

trial to determine whether the evidence

was lawfully seized. DePriest v.

Commonwealth, 4 Va. App. 577, 583, 359

S.E.2d 54@, 542-43 (1987), ce e d,

488 U.S. 985 (1988).

Here, the evidence supports the

Commonwealth's clair that the police

entered the premises in an effort to

secure the premises to prevent destruction

or loss of the Commonwealth’s money or

contraband. Such a warrantless entry is

justified when (1) the police have

probable cause to believe that evidence is

on the premises; (2) delaying entry would

create a substantial risk that the

evidence will be lost or destroyed; and

(3) the police did not create the exigency

which is the basis of the entry. Crosby

v. Commonwealth, 6 Va. App. 193, 200-01,

367 S.E.2d 730, 735 (1988). “‘[{I])n

determining whether... circumstances were

sufficient to overcome the presumption of

unreasonableness and justify a warrantless

entry, the court must examine the

circumstance as they reasonably appeared

to the law enforcement officers on the

scene [when the decision to enter was

made].’°" Id. at 201, 367 S.E.2d at 735

(quoting Verez v. Commonwealth, 23@ Va.

4@5, 411, 337 S.B.2d 749, 753 (1985),

cert. denied, 479 U.S. 813 (1986)).

Appellant concedes that the police

had probable cause to believe that

evidence was on the premises. Their

surveillance of the Saab and its occupants

from the time it stopped at the residence

and their later questioning of the

occupants provided that information. The

officers knew that the appellant was on

the premises, that he had sold marijuana

to Stephen Briand, and that he had

accepted at least $ 5800 of marked

currency for the marijuana.

In determining whether emergency

circumstances exist, some of the relevant

factors courts have considered are: (1)

the degree of urgency involved and the

amount of time necessary to procure a

warrant; (2) the reasonable belief that

the contraband or evidence is about to be

removed; (2) the possibility of danger to

the police officers guarding the prerises

containing the evidence; (4) information

indicating that the contraband’s

possessors are aware that they are under

investigation by the police; and (5) “the

ready destructibility of the contraband

and the knowledge ‘that efforts to dispose

of narcotics and to escape are

characteristic behavior or persons engaged

in the narcotics traffic.’* United States

v. Rubin, 474 F.2d 262, 268-9 (3d Cir.),

cert. denied s : an _v. United

States, 414 U.S. 833 (1973) (quoting

United States v. Manning, 448 F.2d 992,

998-99 (2d Cir.), cert. denied, 404 U.S.

995 (1971)).

Detective Barber testified that from

the time the police realized they

possessed the probable cause necessary for

the warrant it would have taken four hours

to obtain a search warrant. The police

had observed at appellant's house

considerable traffic both before and after

Briand’s original purchase of the

marijuana. Several vehicles arrived and

left before the purchase and three arrived

and left after it. The police knew that

it was not appellant’s practice to leave

the contraband within the house for long

periods of time but that he only brought

it there when he was anticipating a sale.

Thus, they had cause to believe that once

the substantial sale to Briand had been

completed, Smith might attempt to remove

the remaining contraband and the money.

The police also knew that the appellant

had previously been convicted of firearas

offenses, one of possession and two of

brandishing, which increased the danger to

the officers who remained on surveillance

at the house.

Purthermore, after the sale to

Briand, the police had detained and

released the occupants of three vehicles

that had stopped at the residence. Any of

the persons in those vehicles could have

telephoned appellant’s residence and

advised him of their experience, alerting

Smith to the surveillance. “This fear of

discovery is itself an exigent

circumstance.” t vy. ¢ an,

498 F.2d 3@, 35 (9th Cir. 1974). Finally,

the police knew that contraband is readily

destructible and efforts to dispose of

narcotics and to escape are characteristic

behavior of drug distributors.

Appellant’s actions also increased the

possibility of destruction of the marijuana

Or escape. The police knew from Briand

that Smith had the trash bags full of

marijuana in the house. They knew it was

appellant’s method of operation not to

store it in the house but to wait until he

knew a cash buyer was en route before he

procured the marijuana. Thus, we conclude

from the totality of the circumstances

that the trial court did not err in

determining that exigent circumstances

existed to secure the premises.

THE SEARCH WARRANT

Notwithstanding the alleged tainted

material facts contained in the affidavit,

“putting aside all tainted allegations,

the independent and lawful information

stated in the affidavit suffice[({d] to show

probable cause.” United States v.

Giordano, 416 U.S. 505, 555 (1974)

(Powell, J., concurring in part,

dissenting in part). This information

provided the necessary “substantial basis”

from which to conclude the contraband was

in the house. See Illinois v. Gates, 462

U.S. 213, 236 (1983).

A Vv N

The only objection raised to Officer

Johnston’s testimony that he had contacted

the Division of Motor Vehicles, had

checked the registration of two vehicles

parked in front of 4809 Portsmouth

Boulevard, and had learned that they were

registered to the appellant at that

address, was that his testigony

constituted hearsay. The admission of the

testimony violated the hearsay rule.

Notwithstanding that violation, we are

satisfied that it was harmless error

because “it plainly appears form the

record and the evidence given at the trial .

that the [appellant has] had a fair trial

on the merits and substantial justice has

“been reached.” Lavinder v. Commonwealth,

_... Va. App. _§___, 407 S.EBE.2d 910-11 (1991)

(en) (banc) (quoting Va. Code Section

8.01-678).

The evidence in this case is so

overwhelming that no rational trier of

fact could have believed appellant did not

possess the marijuana. He defense was

that he did not live at the residence

where he was arrested. However, the

evidence showed that he ran out the back

door of the house holding trash bags

containing several pounds of marijuana and

then ran back into the house and into the

bedroom in which the other marijuana was

7 .

later found. Photographs of the appellant

dating back many years and a video tape of

him and Debbie Steele, a co-defendant and

mother of appellant’s three children, the

oldest of whom was approximately ten,

dated February , 1988, were also found in

the house. In the bedroom, police also

found a ledger containing telephone bills

with the appellant’s name on them. Debbie

Steele testified that Smith lived at 4809

Portsmouth Boulevard on December 16, 1988.

She admitted that the house was rented in

his name, that all the bills connected

with the house (utilities, sewage,

Sanitation, telephone) were in his name,

and that the statement of wages, with the

name “Wayne” on it, which was found in the

bedroom, belonged to appellant. She also

admitted that appellant drove the green

van parked in front of the house, which

was the subject of the alleged hearsay.

Thus, even without the testimony about the

vehicle registration, the only conclusion

about appellant’s guilt permitted by the

evidence was the one the jury reached.

For this reason, the admission of the

alleged hearsay testimony was harmless.

Affirmed.

VIRGI SS Ae

IN THE COURT OF APPEALS OF VIRGINIA

ON WEDNESDAY THE 11TH DAY OF MARCH, 1992

RODNEY WAYNE SMITH,

Appellant,

against Record No. 0707-90-1

Circuit Court No. 89-365

Commonwealth of Virginia,

Appellee.

Upon a Petition for Rehearing

Before Judges Baker, Moon and Willis

On consideration of the petition of

the appellant to set aside the judgment

rendered herein on the 2ist day of

January, 1992 and grant a rehearing

thereof, the said petition is denied.

A Copy,

Teste:

Patricia G. Davis, Clerk

By: /s/ Cynthia L. McCoy

Deputy Clerk

VIRGINI As

IN THE SUPREME COURT OF VIRGINIA

ON MONDAY THE 10TH DAY OF AUGUST, 1992

RODNEY WAYNE SMITH,

Appellant,

against Record No. 920524

Circuit Court No. 0707-990-1

Commonwealth of Virginia,

Appellee.

From the Court of Appeals of Virginia

Upon review of the record ir this

case and consideration of the argument

submitted in support of the granting of an

appeal, the Court refuses the petition for

appeal.

And it is ordered that the

Commonwealth recover of the appellant the

costs in the courts below.

Justice Keenan took no part in the

consideration of this case.

A Copy,

Teste:

David B. Beach, Clerk

By: /s/

Deputy Clerk

SEARCH WARRANT NO

ITEM # 4 The Material Facts Constituting

Probable cause:

On 12-16-88, Special Agent Calvin

Johnston of the Virginia State Police

contacted Detective W.H. Barber of the

Chesapeake Police Dept. requesting

assistance on a mariuana transaction that

was originating in Richmond, Va and was

planned to be held in Chesapeake, Va.

S/A Johnston relayed the following

facts, Richmond Virginia Police Dept. had

a informant who had supplied information

that a white Saab vehicle would leaving

the Richmond area enroute to 4809 |

Portsmouth Blvd. in the City of Chesapeake

to make a rmulti-pound marijuana purchase.

Richmond police stated this purchase

would be over a thousand dollar figure.

On the afternoon of December 16,

1988, Richmond police along with Virginia

State Police conducted rolling

Surveillance of this white Saab from

Richmond until this vehicle pulled into

the residence of 4809 Portsmouth Blvd.,

Chesapeake, Virginia.

Special Agent Johnston and other

police personnel had maintained

surveillance on 4809 Portsmouth Blvd.,

Chesapeake, Virginia from approximately

11:30 A.M. During this surveillance

approximately six(6) vehicle’s came to and

left this house.

At approximately 4:55 P.M., 12-16-88,

affiant observed the aforementioned Saab

vehicle pull into 4809 Portsmouth Blvd.,

in the city of Chesapeake, Va. This

vehicle contained two (2) white male

subjects. This Saab vehicle departed 4809

Portsmouth Blvd., Chesapeake, Va., at

approximately 5:17 P.M., 12-16-88.

Police surveillance units followed

this vehicle into the City of Suffolk,

Virginia where it was stopped at Bennett’s

Pasture Road and Nansemond Parkway in

Suffolk, Virginia. A search of this

vehicle revealed approximately five(5)

pounds of marijuana.

Detective Jay Boothe of the Richmond

Police Department is the controlling

detective of this informant. The

informant was supplied with 6,750.00

dollars of U.S. currency has been

photograph-copied to preserve the serial

numbers.

The informant was driving this Saab

vehicle from Richmond to Chesapeake and a

search of the Saab vehicle, prior to

departure from Richmond, revealed no

evidence of marijuana in the vehicle.

At the scene of the stop of the Saab

vehicle, the informant told Detective

Boothe that the passenger had purchased

the marijuana with the U.S. currency

obtained from Richmond Police Department

while inside the residence of 4809

Portsmouth Blvd., Chesapeake, Virginia,

and he had entered the Saab vehicle

boasting of trash bags full of marijuana

inside of the residence of 4809 Portsmouth

Blvd., Chesapeake, Va.

During the time of the traffic stop,

a police vehicle was assigned to maintain

surveillance on 4809 Portsmouth Blvd.,

Chesapeake, Va. During this surveillance

at least two(2) vehicles arrived and

departed. Due to this agents/detectives

believing Smith might be giving the U.S.

currency that belonged to the Richmond

Police Department, to his supplier and

believing that the statements of the

informant during the traffic stop

indicating that more marijuana was inside

the house located at 4809 Portsmouth

Blvd., Chesapeake, Virginia. This affiant

accompanied with other agents/detective

pulled into the yard of the house at 5:55

P.M.

Upon approaching the rear of 4809

Portsmouth Blvd., Chesapeake, Va., Rodney

Wayne Smith opened the back door carrying

two(2) large green trash bags. Upon

observing the agents/detectives, Smith

slammed and locked the back door. At this

time, the agents/detectives used forcible

entry into the dwelling to protect against

the destruction of evidence, or the escape

of Rodney Wayne Smith and for the

protection of the agents/detectives

against any possible assault directed at

ther.

Upon entry in the kitchen area, Smith

was seen running into a room to the left.

Detective Barber followed Smith into this

bedroom with all agents/detectives

announcing “Police”.

Once inside the bedroom Smith was

throwing the green plastic bags on a bed

and it opened revealing several plastics

bags containing marijuana. A white female

later identified as Debbie Steel was

holding the bag on the bed. Another

plastic bag of marijuana was in plain view

on the bedroom floor.

Upon initial entry into the kitchen,

Detective Barber observed several

marijuana cigarettes in a ash tray on a

dining room table.

Upon entry into this dwelling 3

juveniles ranging in age approximately

from 5 to 1@ years were inside.

Once all parties were controlled and

the house was secured without any

searching, SMITH, Rodney was arrested and

‘transported to the Chesapeake Police Dept.

At this time law enforcenet agents

are still inside this dwelling awaiting

the presentation of these facts.

SMITH, Rodney has a Virginia

computerized criminal history that

reflects (1) @20181, conviction in

Portsmouth for carrying a concealed

weapon, (2) 071781, Portsmouth, conviction

of possession of marijuana with intent to

distribute, (3) 0980181, Portsmouth,

conviction of 2 counts of brandish a

firearm, (4) Portsmouth, Va., 082181,

convicted of destroying personal property,

(5) Chesapeake, 041384, charged with

possession of marijuana with intent, this

charge was nolle prosses.

Det. W. H. Barber

AFFIANT

VIRGINIA:

IN THE CIRCUIT COURT OF THE CITY

OF CHESAPEAKE

COMMONWEALTH OF VIRGINIA,

Plaintiff,

Vv. DOCKET NO: 89-365

RODNEY WAYNE SMITH,

Defendant.

MOTION TO SUPPRESS

COMES NOW the defendant, Rodney Wayne

Smith, by counsel, and pursuant to Section

19.2-60 of the Code of Virginia, 1950, as

amended, moves the Court to Order the

suppression of all evidence oral and

physical, including any statements made by

the defendant, Rodney Wayne Smith, whether

prior to or subsequent to his arrest, and

any property seized as a result of the

arrest, detention or interrogation of the

defendant, and any property seized by a

warrantless search of the premise occupied

by the defendant, and any property or

goods seized by virtue of the search

warrant for the property occupies by the

defendant, which warrant was issued by

Albert Bud, magistrate on the 16th day of

December, 1988, and the defendant further

respectfully requests that the Court order

any statement or evidence improperly

obtained be excluded from any trial of

charges brought against the defendant as a

result of the seizure of such evidence and

further, that such improperly obtained

evidence not be used for any investigative

purpose including obtaining derivative

evidence; and in support of this Motion

the defendant, by counsel, respectfully

represents as follows:

That all evidence was obtained as

result of an illegal search and seizure.

RODNEY WAYNE SMITH

/s/

Counsel

Donald S. Clarke, Esquire

CLARKE AND THOMAS, P.C.

3104 Arctic Avenue

P.O. Box 981

Virginia Beach, Virginia 2351

[EXCERPT FROM SUPPRESSION HEARING. }

MR. GIVANDO-CLIVE: About all I can

tell you, Your Honor, we’re here ona

motion to suppress filed by the

defendants, represented by Mr. Thomas and

Mr. Clarke. Apparently, they’re alleging

a search that resulted in a seizure of a

considerable amount of marijuana was

illegal. And I’ll let them take it froam

there.

THE COURT: Okay. I don’t see any --

it’s just a question of credibility. I

don’t have any authority. I’m just going

to base it on the evidence. I overrule

your motion. Note your exception to the

Court’s ruling.

ao tee oe ee

IN THE CIRCUIT COURT OF THE CITY

OF CHESAPEAKE

COMMONWEALTH OF VIRGINIA

INDICTMENT NO: 89-365

Vv.

RODNEY WAYNE SMITH

CHARGE: PWID MARIJUANA

MOTION AND NOTICE

PURSUANT TO SECTION 19.2-399

COMES NOW the Defendant, RODNEY WAYNE

SMITH, by counsel and files this Motion

and Notice, pursuant to Section 19.2-399

of the Code of Virginia (1950), as

amended, and affirmatively makes his

motion to suppress all evidence seized as

indicent to or as basis for his/her arrest

and/or seized as indicent to a search

warrant on the grounds such evidence was

obtained in violation of the provisions of

the Fourth, Fifth or Sixth Amendments to

the Constitution of the United States, or

Article I, Section 8, 1@ or 11 of the

Constitution of Virginia proscribing

illegal searches and seizures and

protecting rights against self-

incrimination, and further states that

this Motion and Notice if filed not later

than seven (7) days prior to trial.

/s/

Counsel

Warren David Kozak

Marcus, Santoro and Kozak:

341 High Street

P.O. Drawer 69

Portsmouth, Virginia 23795

(804) 393-2555

[EXCERPT FROM BEGINNING OF TRIAL. !

MR. KOZAK: Your Honor, on April 19th

of this year a suppression motion was made

in this matter, and at this time I would

like to reallege and reassert all the

motions made in the motion for suppression

and have that made a part of the record in

this proceeding. I understand the Court

is not going to rehear the suppression

motion. It has already been heard by

Judge Forbes. I would like those matters

to be made a part of the record for

purposes later on if necessary.

[EXCERPT AFTER PROSECUTION’S EVIDENCE, }

MR. KOZAK: Judge, obviously this

case hinges on whether or not the police

officers had a right to enter the dwelling

and that matter has been covered in the

suppression hearing. I would reassert all

of the motions made at that point in time,

that there is obviously no probable cause

to enter the dwelling and no exigent

circumstances chat exist to give the

police officer a right to enter without a

warrant when obviously they would had have

an opportunity -- since they had the place

under surveillance, nothing could have

gotten in or out without their knowledge.

That would be my motion at this time,

Judge.

THE COURT: I overrule your

objection and note your exception.

VIRGINIA

IN THE CIRCUIT COURT OF THE CITY

OF CHESAPEAKE

ON THE 13TH

DAY OF DECEMBER, 1989

COMMONWEALTH OF VIRGINIA

Vv.

RODNEY WAYNE SMITH, Defendant.

SEX: Male RACE: White DOB: 1-13-60

SSN: 228-08-1064

ORDER - Felony Wo. 89-365

This day came the Attorney for the

Commonwealth, and Rodney Wayne Smith who

stands indicted for a felony, to-wit:

Possess Marijuana With Intent to

Distribute, Offense Date: 12-16-88, who

appeared according to the condition of his

Own recognizance, and came also, Warren D.

Kozak, counsel for the defendant.

Whereupon the accused was arraigned

and after private consultation with his

said attorney, pleaded not guilty to the

indictment, which plea was tendered by the

accused in person, who requested a trial

by jury.

The Court then impaneled twenty

qualified rn free from exception for

the trial of the defendant, in the manner

provided by law. Whereupon the Attorney

for the Commonwealth and the Attorney for

the defendant exercised their rights to

strike names from the panel, as provided

by law, and the remaining twelve jurors,

constituting the jury for the trial of the

defendant, were duly sworn.

After opening statements, the Court

and jury heard the evidence presented by

the Commonwealth and the defendant. At

the conclusion of the Commonwealth’s

evidence, the Attorney for the defendant

moved the Court to strike the

Commonwealth’s evidence on grounds stated

in the record, which motion was overruled

and exception was noted.

After hearing the evidence, the

instructions of the Court, and argument of

counsel, the jurors were sent to the jury

room to consider their verdict. They

subsequently returned their verdict in

open court in the following words: We the

jury find the defendant guilty of

possession of marijuana with intent to

distribute, and fix his punishment at: 25

years. s/ W.F. Clemons, Foreman.

Thereupon the jury was polled and all

answered in the affirmative that the

verdict as read by the Clerk was their

verdict.

The Court then asked the defendant

whether he desired to make a statement or

to advance any reason why judgment should

not be pronounced against him, according

to law, the Court finds the defendant

—————Se eee

guilty of Possess Marijuana With Intent to

Distribute, as charged in the indictment,

and sentences the defendant to confinement

in the penitentiary of the Commonwealth

for the term of twenty-five (25) years,

and to pay the costs of Court in this case

expended.

After pronouncing sentence, the Court

advised the defendant of his right to

petition the Court for an appeal to the

Court of Appeals of Virginia and of his

right to proceed in forma pauperis and to

have the assistance of Court-Appointed

Counsel.

The Court certifies that at all time

during the trial of this case the

defendant was personally present and

capably represented the defendant.

And the defendant is remanded to jail

to await transfer to the penitentiary,

therein to be kept, confined and treated

in the manner provided by law.

ENTER: January 2, 1992

/s/

James C. Godwin, Judge

—————eEeoO-eeee

FILING AND MAILING CERTIFICATE

I hereby certify that on this 9th day of

November, 1992, I filed 40 copies of a Petition for

Writ of Certiorari with the Clerk’s Office of the

Supreme Court of the United States and further

certify that I mailed via first class mail, postage

prepaid, the required three (3) copies to the

Honorable Mary Sue Terry, Attorney General of

Virginia, and H. Elizabeth Schaffer, Assistant

Attorney General, Supreme Court Building, 101

North Eighth Street, Sicleahtend, Virginia 23219.

The necessary filing and mailing was

performed in accordance with the instructions

given me by counsel in this case.

7th & Franklin Building

Richmond, Virginia 23219

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.