Saturday, January 3, 2009

Commonwealth’s Proposed Findings of Fact (Part 3)

Continued from Part 2...


19. The Court further finds that even if the search warrant lacked probable cause to seize the vehicle, the seizure was sanctioned under the “good faith” exception to the search warrant requirement.

20. The Court finds: (1) Judge Shadrick was not misled by any information in the affidavit. There is no showing that any of the information provided by Detective Childress was false. In fact, Detective Childress somewhat surprisingly identified his confidential informants in this case; (2) Judge Shadrick did not abandon his judicial role. Detective Childress described the care the judge took in reviewing the document and, in fact, Judge Shadrick filed the sealed warrant. The Commonwealth’s Attorney, Paul Powers, had also reviewed the document and authorized the search; (3) There was no showing that the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence unreasonable; (4) there was no showing warrant was so facially deficient that the Virginia Beach police could not reasonably have assumed it valid.

21. The Supreme Court of Virginia embraces the “good faith” exception to the exclusionary rule. McCary v. Commonwealth 228 Va. 219, 321 S.E.2d 637 (1984). There are four recognized situations in which good faith exception will not be applied to admit evidence seized pursuant to search which was based on invalid search warrant: (1) The magistrate was misled by information in affidavit which affiant knew or should have known was false; (2) The issuing magistrate totally abandoned his judicial role; (3) The warrant was based on affidavit so lacking in indicia of probable cause as to render official belief in its existence unreasonable; or (4) The warrant was so facially deficient that executing officer could not reasonably have assumed it valid. Anzualda v. Commonwealth 44 Va. App. 764, 607 S.E. 2d 749, 2005 Va. App. LEXIS 88 (2005). As noted above, these exceptions to not apply in this case.


22. The Court finds that the inventory search performed by Detective Childress and the discovery of the knife in the glove compartment was proper and lawful under the Fourth Amendment and Virginia case law interpreting it.

23. Virginia recognizes a “community caretaker exception to the general rule otherwise known as the inventory search exception. King v. Commonwealth 39 Va.App. 306, 572 S.E.2d 518(2002). The exception is grounded in the policy considerations recognized by the United States Supreme Court in South Dakota v. Opperman 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), and Cady v. Dombrowski 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Those policy considerations include: 1) the protection of the owner’s property while it remains in police custody, 2) the protection of police against claims or disputes concerning lost or stolen property, and 3) protection of the public and the police from physical danger. Reese v. Commonwealth 220 Va 1035, 1039, 265 S.E.2d 746, 749 (1980); See generally Op 428 U.S. at 373-76, 96 S.Ct. at 3099-3 100; Cady, 413 U.S. at 442-48, 93 S.Ct. at 2528-2531.

“Under the community caretaker exception, the police may conduct a warrantless inventory search of a vehicle provided the following conditions are met: 1) the vehicle must be lawfully impounded; 2) the impoundment and subsequent search must be conducted pursuant to standard police procedures; and 3) the impoundment and subsequent search must not be a pretextual surrogate for an improper investigatory motive. King, 39 Va.App. at 310, 572 S.E.2d at 520; Servis v. Commonwealth 6 Va.App. 507, 521, 371 S.E.2d 156, 163 (1988).”

“Here, the inventory search was conducted pursuant to standard procedures and no evidence establishes that the police had an investigatory motive. The sole remaining question is whether the police properly impounded the vehicle. See Servis 6 Va.App. at 521, 371 S.E.2d at 163 (noting that “the crux of the issue in this case is whether the defendant’s car was lawfully impounded”).”

The Court answered the question in the affirmative. “We must consider “not whether there was a need for the police to impound the vehicle but, rather, whether the police officer’s decision to impound was reasonable under the circumstances,” United States v, Brown 787 F.2d 929, 932 (4th Cir.), cert. denied, 479 U.S. 837, 107 S.Ct. 137, 93 L.Ed.2d 80 (1986); see also Opperman 428 U.S. at 372-74, 96 S.Ct. at 3099-3100. “Objective reasonableness remains the linchpin of determining the validity of action taken under the community caretaker doctrine.” King 39 Va.App. at 312, 572 S.E.2d at 521.See also Williams v. Com. 594 S.E.2d 305,42 Va, App. 723 (Va. App., 2004).

24. The Court finds that the 2006 BMW MS was lawfully impounded. The Court finds the impoundment and subsequent search was conducted pursuant to standard police procedures as noted in Detective Childress’s testimony and the presentation of the Exhibits 3 and 4. The Court finds the impoundment and subsequent search was not a pretextual surrogate for an improper investigatory motive. King. 39 Va.App. at 310, 572 S.E.2d at 520; Servis v. Commonwealth 6 Va.App. 507, 521, 371 S 156, 163 (1988).

The evidence was clear that Virginia Beach had its own RICO, money laundering and prostitution investigation. The search warrant was authorized by Judge Shadrick for these crimes, The car was properly seized and, as required by standard operating procedure, had to be inventoried.

In Colorado v. Bertine 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987), the Fourth Amendment does not prohibit the State from proving the criminal charges with the evidence discovered during the inventory search of respondent’s van. This case is controlled by the principles governing inventory searches of automobiles and of an arrestee’s personal effects, as set forth in South Dakota v. Opperman 428 U.S. 364, 96S.Ct. 3092, 49 L.Ed.2d 1000, and Illinois v.. Lafayette 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65, rather than those governing searches of closed trunks and suitcases conducted solely for the purpose of investigating criminal conduct. United States v. Chadwick 433 U.S. 1, 97 S.C1. 2476, 53 L.Ed.2d 538, and Arkansas v. Sanders 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235, distinguished. The policies behind the warrant requirement, and the related concept of probable cause, are not implicated in an inventory search, which serves the strong governmental interests in protecting an owner’s property while it is in police custody, insuring against claims of lost, stolen, or vandalized property, and guarding the police from danger. There was no showing here that the police, who were following standardized care taking procedures, acted in bad faith or for the sole purpose of investigation. Police, before inventorying a container, are not required to weigh the strength of the individual’s privacy interest in the container against the possibility that the container might serve as a repository for dangerous or valuable items. There is no merit to the contention that the search of respondent’s van was unconstitutional because departmental regulations gave the police discretion to choose between impounding the van and parking and locking it in a public parking place. The exercise of police discretion is not prohibited so long as that discretion is exercised—as was done here—according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.

25. Under the Fourth Amendment, police may seize an item without a warrant if it is in plain view, its incriminatory character is immediately apparent, and the officer is lawfully in the place where the seizure occurs and has lawful right of access to that object. Horton v. California 496 U.S. 128 (1990).

In this case, Detective Childress was lawfully conducting an inventory search of the Defendants’ BMW M5. As he was doing so, he found a Sig Sauer knife in the glove compartment. The incriminating nature of the weapon became immediately apparent to Detective Childress as he recalled that the Pennsylvania homicide was committed with a knife. Detective Childress then lawfully seized the knife and turned it over to Corporal Leo Hannon of the Pennsylvania State Police.


WHEREFORE, based on the foregoing, the Commonwealth respectfully requests the Court to deny and dismiss the Defendants' motions to suppress evidence obtained during the search of the Defendants' car at the Virginia Beach Police Department's Special Investigation Division after their arrest on May 15, 2007.