Darrick Hamilton Hood v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Annunziata
Argued at Richmond, Virginia
DARRICK HAMILTON HOOD
MEMORANDUM OPINION * BY
v. Record No. 0821-94-2 JUDGE JAMES W. BENTON, JR.
OCTOBER 10, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
C. David Whaley (Anthony G. Spencer; Morchower,
Luxton & Whaley, on briefs), for appellant.
Thomas C. Daniel, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Darrick Hamilton Hood appeals from his conviction of
possessing a firearm after having been convicted of a felony.
Code § 18.2-308.2. He contends the firearms were seized in
violation of the Fourth Amendment. For the reasons that follow,
we reverse the conviction.
I.
The evidence proved that on the evening of October 10, 1993,
Hood went to a hospital to be treated for a gunshot wound to his
right arm. Police Officers J. Morgan Brown, Jr., and Clyde
Fisher went to the hospital and spoke with Hood as a victim of a
shooting. After learning that somebody fired bullets at Hood's
car, the officers went to look at the car. They observed bullet
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
holes in the car and shell casings on a seat inside the car.
The officers returned to the hospital and again questioned
Hood about being a shooting victim. The officers asked Hood
whether he had been armed and had returned fire. Hood responded
that he had backed into a parking lot and that somebody
approached his car and shot at him. He said that he quickly
drove away and did not shoot at the assailant. Hood also stated
that he had guns in the trunk of his car that had not been fired.
The officers asked Hood if he would go to his car with them and
open the trunk. Hood agreed to do so.
Hood went outside without a shirt. When he opened the trunk
of his car, the officers could not see the guns and asked Hood to
remove them. Hood placed two guns on top of a speaker box in the
trunk. Hood then asked for his coat and reached into the trunk
for a jacket to wear. Officer Brown grabbed the jacket from Hood
and patted it for weapons. When Officer Brown squeezed the
jacket, he felt an object about three inches long and an inch
thick. Although he knew the object was not a weapon, he
suspected that it may have been drugs. Officer Brown removed the
object, a folded brown paper bag, and opened it. He saw what
appeared to be several rocks of crack cocaine. The officers
seized the cocaine and the guns and arrested Hood on drug related
offenses. When Hood was being processed at the police station,
the officers learned that he was a convicted felon and charged
him with the weapons offense.
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Hood was indicted for possession of cocaine with intent to
distribute, possession of cocaine while possessing a firearm, and
possession of a firearm after having been convicted of a felony.
Before trial, the judge ruled that the search of the jacket was
unlawful and suppressed evidence of the cocaine. However, the
judge denied Hood's motion to suppress evidence of the firearms
seized from the trunk. At trial, Hood was convicted of
possessing firearms after having been convicted of a felony.
II.
The trial judge's finding that the search of Hood's jacket
was unlawful necessarily "also prohibit[s] the introduction of
derivative evidence 'that is the product of the primary evidence,
or that is otherwise acquired as an indirect result of the
unlawful search.'" Commonwealth v. Ealy, 12 Va. App. 744, 754,
407 S.E.2d 681, 687 (1974)(quoting Murray v. United States, 487
U.S. 533, 536-37 (1988)). The principle is well established that
evidence derived from an illegal search or seizure may not
provide the basis for a subsequent seizure. Wong Sun v. United
States, 371 U.S. 471, 484-85 (1963). Accordingly, the seizure of
the guns cannot rest upon Hood's arrest for possession of the
unlawfully seized cocaine.
Although the officers were not acting under authority of a
warrant, the Commonwealth contends the officers could have
properly seized the guns prior to discovering the cocaine. The
Commonwealth asserts the seizure was permissible as a plain view
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exception to the Fourth Amendment or as a consensual seizure.
Thus, we begin our analysis with the principle that "searches
[and seizures] conducted outside the judicial process, without
prior approval of a judge or magistrate, are per se unreasonable
under the Fourth Amendment -- subject only to a few specifically
established and well-delineated exceptions." Katz v. United
States, 389 U.S. 347, 357 (1967).
To invoke the plain view exception to the Fourth Amendment,
see Coolidge v. New Hampshire, 403 U.S. 443, 464 (1970), the
Commonwealth was required to prove that the police "'had probable
cause to believe the evidence seized was a seizable item, i.e.
contraband, the fruit or tools of a crime, or other evidence of a
crime.'" Commonwealth v. Grimstead, 12 Va. App. 1066, 1068, 407
S.E.2d 47, 48 (1991)(citation omitted). The evidence proved that
when the officers questioned Hood while he waited for medical
attention they did not suspect him of criminal activity. Indeed,
they testified that they were questioning him in the belief that
he was a victim of a crime. During their questioning, Hood told
them of the guns in his trunk and voluntarily opened his trunk at
the officers' request.
Hood had earlier informed the officers that the assailant
approached and shot into the car. The bullets holes in the body
of the car observed by the officers were not inconsistent with
Hood's report. There is no evidence that the officers believed
the shell casings in the car were from the guns in the trunk. At
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best, the officers' observations generated unanswered questions
requiring further investigation. However, a vague need for
inquiry does not rise to the level of probable cause to believe
the weapons in the trunk were involved in criminal activity.
"Probable cause . . . must be based on more than
speculation, suspicion, or surmise that a crime might be in
progress." Alexander v. Commonwealth, 19 Va. App. 671, 674, 454
S.E.2d 39, 41 (1995). The criminality of the guns in the trunk
was not immediately apparent to the officers. See Coolidge, 403
U.S. at 466. Thus, the evidence adduced at the hearing does not
support the conclusion that the officers had probable cause to
believe the guns were the tools of a crime. See Grimstead, 12
Va. App. at 1068, 407 S.E.2d at 48.
Although Hood voluntarily removed the guns from his trunk,
the evidence does not prove that the seizure was consensual.
Hood only consented to opening his trunk and allowing the
officers to view his guns. The Fourth Amendment's prohibition
against unreasonable seizures requires the Commonwealth to prove
that Hood freely and voluntarily consented to the seizure.
Bumper v. North Carolina, 391 U.S. 543, 548 (1968); Hairston v.
Commonwealth, 216 Va. 387, 388, 218 S.E.2d 668, 669 (1975). The
officers seized the weapons only after finding the cocaine. The
evidence does not prove that Hood consented to the seizure.
For these reasons, we hold that the trial judge erred in
ruling that the seizure of the guns did not violate the Fourth
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Amendment and in failing to also suppress the guns. We,
therefore, reverse the conviction and remand the case to the
circuit court.
Reversed and remanded.
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