Harris v. Commonwealth

OSMAND G. HARRIS, JR. v. COMMONWEALTH OF VIRGINIA

Record No. 0717-15-2

COURT OF APPEALS OF VIRGINIA

MAY 24, 2016

UNPUBLISHED

Present: Judges Humphreys, Chafin and Senior Judge Clements

Argued by teleconference

MEMORANDUM OPINION^* BY JUDGE TERESA M. CHAFIN

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Beverly W. Snukals, Judge

Charles C. Cosby, Jr., for appellant.

Benjamin H. Katz, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Osmand G. Harris, Jr. ("appellant"), was indicted by a grand jury in the City of Richmond for one count of possession of a Schedule I or II controlled substance, with the intent to distribute, in violation of Code § 18.2-248; one count of possession of a firearm while in possession of a Schedule I or II controlled substance, with the intent to distribute, in violation of Code § 18.2-308.4(B); and one count of carrying a concealed firearm, after having been previously convicted of a like offense, in violation of Code § 18.2-308.

Prior to trial, appellant filed a motion to suppress evidence and statements obtained during his encounter with law enforcement. The trial court held a hearing on the motion to suppress and directed the parties to prepare additional argument.¹ After considering the additional argument, the trial court granted appellant's motion to suppress the statements he made before law enforcement advised him of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). The trial court, however, denied appellant's motion to suppress the statements he made after he was advised of his Miranda rights and the physical evidence obtained from his scooter.²

Following a bench trial, appellant was convicted on all three charges. Prior to sentencing, appellant filed a motion to reconsider the suppression issue. The trial court denied appellant's motion for reconsideration and sentenced appellant to twenty years' incarceration with fifteen years suspended.

Appellant now appeals to this Court. He first contends that the trial court erred in denying appellant's motion to suppress his post-Miranda statements, as the Miranda warnings were ineffective where appellant had already made incriminating pre-Miranda statements. Appellant also challenges the sufficiency of the evidence, arguing that his version of the relevant events was more credible than the police officers' version.

Background

On appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below, and "accord [it] the benefit of all inferences fairly deducible from the evidence." Riner v. Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004). So viewed, the evidence proved that on October 25, 2013, Richmond police detectives Greg Boyles and Karen Brown were conducting a "buy-bust" operation.³ The detectives targeted a specific individual identified to them as "Oz" by a confidential informant.

The informant indicated that "Oz" could supply him with an ounce of heroin. Boyles asked the informant to contact "Oz" via speaker phone. Boyles testified that he heard the informant request an ounce of heroin for $1400. The informant and "Oz" agreed to meet at the Southside Plaza in Richmond. The informant described "Oz" as a dark-skinned black male who was approximately six feet tall. He additionally stated that "Oz" typically drove a dark scooter and carried a firearm.

When the detectives and the informant were in place at the Southside Plaza, the informant received a call from "Oz." Boyles testified that he again heard the call through the phone's speaker function. "Oz" indicated he was across the street at the Circle Shopping Center next to the laundromat. The detectives proceeded to the laundromat, where they encountered a man later identified as appellant, standing next to a scooter and wearing a helmet.

As the detectives approached appellant, they perceived what appeared to be a bulge protruding underneath the right side of his jacket. The detectives asked appellant if he was armed. He responded affirmatively and raised his hands in the air, revealing a holstered pistol in his waistband that had been concealed by his jacket. Brown removed the pistol from appellant's holster and inquired whether appellant possessed a permit for carrying a concealed weapon. Appellant indicated that he did not.

Brown secured the weapon, and Boyles handcuffed appellant and informed him that he was being placed in "investigative detention." Before advising appellant of his Miranda rights, Boyles asked appellant whether he possessed "anything else illegal, any other firearms, anything illegal on him or in his scooter." Appellant responded, "I have some in my scooter." Appellant subsequently clarified that there was heroin in the scooter.

In the meantime, Sergeant Michael Lewandowski arrived on scene. Lewandowski testified that when he encountered appellant, appellant was "running off at the mouth, [and] could not be quiet." Lewandowski asked appellant if he had been advised of his Miranda rights. Learning that he had not, the sergeant advised appellant at that time.

Boyles then inquired about the quantity of drugs contained in appellant's scooter, and appellant said it contained an ounce of heroin. Additionally, appellant volunteered that he possessed cocaine at his home. Brown requested the scooter's keys from appellant and found a bag of 28.7 grams of a "tan/brown" substance in the scooter. Subsequent analysis confirmed the substance to be heroin.

At trial, Boyles testified that appellant stated he came to the laundromat for the purpose of "sell[ing the heroin] to a guy he was to meet." Appellant claimed to be a police informant and explained that after the planned transaction, he intended to "turn it in to the police."

In support of his motion to suppress, appellant argued that he was in custody when Boyles asked him if he possessed anything else illegal before advising him of his Miranda rights. Appellant further contended that the Miranda warning Lewandowski provided did not render his subsequent statements and the evidence obtained admissible. Appellant also challenged the reliability of the informant's information and the constitutionality of the search of his scooter.

In response, the Commonwealth argued that, under Oregon v. Elstad, 470 U.S. 298 (1985), a subsequent "Mirandized" statement need not be suppressed simply because an earlier violation took place when obtaining a statement made prior to Miranda warnings. Appellant relied upon Missouri v. Seibert, 542 U.S. 600 (2004), contending that the evidence and statements were inadmissible because the detectives used a "question first" technique.

The trial court found the confidential informant to be reliable. However, the trial court was not prepared to rule on the motion to suppress absent additional argument from the parties on whether probable cause existed to support the search of the scooter and whether Seibert applied under these circumstances. The trial court characterized the circumstances of Seibert as involving a "systematic and exhaustive questioning" that took place before Miranda rights were given. Noting that the police only asked a single question, the trial court distinguished Seibert from appellant's case. However, as stated above, a transcript of the continuation of the suppression proceedings was not included in the record.

Following appellant's conviction, he filed a motion to reconsider the trial court's denial of the suppression motion. The trial court heard argument on the motion prior to sentencing. Appellant again challenged the reliability of the informant and the constitutionality of the search of the scooter. The Commonwealth addressed the admissibility of appellant's post-Miranda statements, arguing that the facts of the instant case were materially different from those presented in Seibert. The Commonwealth specifically noted that the trial court concluded in the second suppression proceeding that the police had not engaged in a "deliberate tactic to coerce a confession." As to the search of the scooter, the Commonwealth maintained that the "automobile exception" to the warrant requirement applied, given the finding of the informant's reliability and that there was no requirement to demonstrate the presence of exigent circumstances.

The trial court denied appellant's motion to reconsider. The trial court observed:

I read the cases at the time, I am listening to the argument[, and] I still don't see - you have not pointed out any factors that would lead me to conclude that this was a deliberate attempt to do a two-step process.

. . . .

I still haven't heard anything that would lead me to believe that the factors would weigh in your favor on that . . . .

Analysis

A. Motion to Suppress

I.

"On appeal of a ruling on a motion to suppress, we view the evidence in the light most favorable to the prevailing party, here the Commonwealth, granting to the evidence all reasonable inferences deducible therefrom." Cherry v. Commonwealth, 44 Va. App. 347, 356, 605 S.E.2d 297, 301 (2004). "We are bound by the trial court's findings of historical fact unless plainly wrong or without evidence to support them." Id. (quoting McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc)). However, "we review de novo the trial court's application of defined legal standards such as probable cause and reasonable suspicion to the particular facts of the case." Id.

On appeal, appellant contends that the trial court erred by denying the motion to suppress his statements and the evidence obtained. More specifically, appellant argues the facts of this case are materially indistinguishable from the "question first" procedure employed in Seibert, maintaining that the post-Miranda questions were only a continuation of Boyles' questioning prior to Miranda warnings.

Appellant relies heavily upon Justice Souter's plurality opinion in Seibert, which sets forth the necessary...