Commonwealth v. Shorter

Re: Commonwealth of Virginia v. Valerie Shorter

Criminal Docket No.: CR15-2978

FOURTH JUDICIAL CIRCUIT OF VIRGINIA CIRCUIT COURT OF THE CITY OF NORFOLK

July 27, 2016

DAVID W. LANNETTI JUDGE

Margaret P. Kelsey, Esq.

Office of the Commonwealth's Attorney

City of Norfolk

800 East City Hall Avenue, Suite 600

Norfolk, Virginia 23510

Andrew Protogyrou, Esq.

London C. Crounse, Esq.

Protogyrou & Rigney, P.L.C.

500 East Main Street

BB&T Building, Suite 1520

Norfolk, Virginia 23510

Dear Counsel:

Today the Court rules on the motion filed by Defendant Valerie Shorter ("Shorter") seeking to suppress all evidence and statements made by Shorter stemming from an allegedly unlawful entry into, and search of, her home. The issues before the Court are as follows: (1) whether police entry through the "exterior" door of Shorter's apartment into the stairway leading to her apartment unit (the "Stairway") constituted a search for purposes of the Fourth Amendment; (2) if it did, whether the police were entitled to enter the Stairway as part of a protective sweep of Shorter's apartment; and (3) whether Shorter gave valid consent for a protective sweep of her apartment unit. The court finds, based on the totality of the circumstances, as follows: (1) Shorter had a reasonable expectation of privacy in the Stairway such that entry by law enforcement through her exterior door was a search for Fourth Amendment purposes; (2) the police were not entitled to enter the Stairway as part of a protective sweep of Shorter's apartment; and (3) Shorter did not provide valid consent for a protective sweep of her apartment unit. Shorter's motion to suppress therefore is GRANTED.

Background

On July 2, 2015, Norfolk Police prepared to execute arrest warrants on Lamont Stallings ("Stallings") at the apartment of his girlfriend, Shorter (the "Apartment"), where Stallings was believed to be residing. (Tr. 9, 22.) The police did not know Shorter's identity at the time and only knew her—based on information from an informant—as "a black female named Nickie." (Tr. 24.) Law enforcement had not sought a warrant to search the Apartment when they obtained the Stallings arrest warrants because they believed that they lacked probable cause. (Tr. 23.) The Apartment is located at 511 Ashlawn Drive in the City of Norfolk, is in a two story building comprised of upstairs and downstairs apartments, and consists of the Stairway and an upstairs unit identified as Unit #6. (Tr. 11, Def. Ex. 4.) The downstairs apartments in the complex are entered directly from the outside. (CW Ex. 1.) To reach an upstairs apartment, one must traverse through an exterior door, up a staircase, and then through an interior apartment door. (Id.) Some of the upstairs apartments share an exterior door and stairway with a second upstairs apartment, but Shorter's apartment was an end unit and therefore had an exterior door and stairway to itself—a fact known by the police. (Tr. 11, 110-11.) Numbers on the outside of the building near the exterior doors indicate the units serviced by that door; the number near Shorter's exterior door is marked "6." (CW Ex. 1.) The doors leading to the downstairs apartments, as well as the interior doors of the upstairs apartments, are solid and open inward into their corresponding apartment units. (Tr. 127; CW Ex. 1, 2.) The exterior doors associated with the upstairs apartments each have a deadbolt, open outwards, and contain large windows on their upper halves, which the apartment complex landlady, Cherriann King ("King"), described as providing a "safety factor." (Tr. 127; CW Ex. 1, 2.)

King testified that the exterior doors are designed to be locked "to keep undesirable people out of the hall and off the stairs." (Tr. 128.) The units' mailboxes are external to the building, so access to them does not require entry into the stairways to the upstairs units. (CW Ex. 1, 2.) King testified that, other than Shorter, only she, her husband, and her "maintenance man" possessed keys to the exterior and interior doors of the Apartment prior to Shorter changing the locks in violation of her lease; she also testified that police would be granted access to the stairway "if they came." (Tr. 128-29, 131.) Other tenants do not have keys to exterior doors to stairways not connected to their apartments, and the stairways—if the exterior doors are locked—are not accessible by the general public or delivery personnel. (Tr. 131.) Shorter apparently kept her exterior door locked at times, as King testified that at one point she discovered Shorter's exterior door locked via a deadbolt for which King did not have the key, and she subsequently asked Shorter to reinstall the original lock. (Tr. 130.) At another time, King went to the Apartment to talk with Shorter, and when she tried to open Shorter's exterior door, King found herself "basically locked out of my building." (Tr. 133-34.)

In preparation for the arrest, Investigator T. Sterling surveilled the Apartment for approximately three and a half hours earlier that day. (Tr. 32.) Norfolk Police Special Operations Team ("SOT") personnel were positioned nearby to move in and assist in the arrest of Stallings. (Tr. 32-33.) Investigator Sterling did not observe anyone enter or exit the apartment until 4:30 p.m., when Shorter and Stallings pulled their vehicle (the "Vehicle") into the Apartment parking lot and subsequently entered the Apartment. (Id.) When the Vehicle arrived, Investigator Sterling"advised the [SOT] . . . to move in and make the arrest of [Stallings]." (Id.) Before the SOT could approach the Apartment to execute the arrest warrants, Stallings "had already entered the apartment," so the SOT "backed up [and] went back to their location. [Law enforcement personnel] were hoping that [Stallings] would leave again so they could attempt to make the arrest again." (Tr. 33.) The plan for the arrest was "to take [Stallings] down before he go[t] inside the [Apartment]." (Tr. 59.) Five minutes later, Stallings exited the Apartment and headed toward the Vehicle. (Id.) Investigator Sterling signaled the SOT again, and Stallings was successfully taken into custody near the Vehicle, which was approximately five to seven feet from the exterior door of Shorter's apartment. (Tr. 59, 116.) Between twelve and fifteen law enforcement officers were present to carry out Stallings's arrest. (Tr. 68.)

With Stallings in custody, Investigator D. Dick went around the back of the apartment building, where he observed Shorter extend her head out of a second-story window and look toward the street. (Tr. 93.) He did not observe Shorter with any weapons in her possession, and the police briefing prior to Stallings's arrest had not warned of any expected weapons during the arrest. (Tr. 98, 111.) At the same time, other law enforcement officers approached the exterior door to the Apartment. (Tr. 10.) Police officers had passed by the Apartment previously and, as a result, at least one of the officers believed that Shorter's exterior door led only to Shorter's apartment unit. (Tr. 24-25, 111.) Sergeant N. Ford did not participate in Stallings's arrest, but rather "posted up where [he and other officers] would keep an eye on the door and the windows to the building." (Tr. 71-72.) He testified that he wanted to "[keep] an eye on the door and the windows to the apartment that [Stallings] came out of because he "didn't like [his] guys being in front of that partially opened door, that partial glass door." (Tr. 71.) His concern, "from a tactical point of view," was to protect the police from Shorter or anyone else with an upstairs vantage point. (Tr. 118.) Sergeant Ford wanted to ensure that no one "[snuck] from behind [law enforcement] or out a window." (Tr. 119.) Investigator Delp soon began knocking on Shorter's exterior door—which Sergeant Ford described as being slightly cracked open and that it "swung under its own power into the door frame, but [was] not latched"—and shouting for Shorter or anyone else upstairs to open the door. (Tr. 75-77.) Sergeant K. Peele or Investigator Delp¹ eventually instructed Sergeant Ford to open the exterior door. (Tr. 77, 85, 103.)

Once the exterior door was open, Officers Ford and Peele entered the downstairs landing of the Stairway and continued calling up to Shorter's apartment unit. (Tr. 77, 105.) Sergeants Ford and Peele both testified that upon opening the exterior door, they immediately smelled burnt marijuana, although they had not detected the smell while the door was closed. (Tr. 79, 82, 103.) After approximately five minutes of yelling up the stairs, Shorter opened the interior door to her apartment unit dressed only in her underwear. (Tr. 11-12, 77, 105-06.) Sergeant Peele instructed Shorter to come down the stairs. (Tr. 78.) Shorter asked whether she could go inside her apartment unit to put some clothes on, and Sergeant Peele replied that she could not. (Tr. 106.) Shorter then requested that the officers instead come up the stairs because she was not fully dressed. (Tr. 78, 106.) With Sergeant Peele on the downstairs landing and Shorter at the top of the stairs standing in the open interior doorway, Sergeant Peele asked Shorter whether the officers could enter her apartment unit to see if anyone else was inside. (Tr. 106.) According toSergeant Peele, Shorter responded, "Go ahead." (Id.) Upon entering Shorter's apartment unit, Investigator Sterling observed on a table, in plain view, a "marijuana blunt," which Shorter admitted was hers. (Tr. 37.) After informing Shorter that she had the right to decline consent, Investigator Sterling then requested permission to "search the place for drugs or weapons." (Id.) Shorter denied his request. (Id.)

Shorter subsequently was arrested and now brings this motion to suppress all evidence, "and any derivative thereof," obtained as a result of the allegedly unlawful entry into her home. (Mot. 1.) A hearing was held on June 7, 2016 (the "Hearing"), after which the Court granted leave...