Commonwealth of Virginia v. Mitchell Corleone Hudson, Jr. ( 2023 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Huff, Athey and Fulton
Argued by videoconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION* BY
v. Record No. 0359-23-2 JUDGE GLEN A. HUFF
JULY 18, 2023
MITCHELL CORLEONE HUDSON, JR.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Jacqueline S. McClenney, Judge
Lauren C. Campbell, Assistant Attorney General (Jason S. Miyares,
Attorney General; Robert D. Bauer, Assistant Attorney General, on
briefs), for appellant.
Abigail L. Paules (David Whaley LLC, on brief), for appellee.
Mitchell Corleone Hudson, Jr. (“appellee”), along with four others, was indicted for
first-degree murder and related charges in the Richmond Circuit Court (the “trial court”).1
Before trial, he filed a motion to suppress all evidence derived from a cell phone seized during a
traffic stop of a car in which he was a passenger. The trial court granted his motion and
suppressed the evidence. The Commonwealth filed this pre-trial appeal challenging that
decision. Because police officers justifiably seized the phone as evidence of a crime, this Court
reverses the trial court’s suppression of the evidence.
*
This opinion is not designated for publication. See Code § 17.1-413(A).
1
Appellee and two additional defendants did not waive their speedy trial rights, while the
other two defendants did. Accordingly, the trial court joined each group to be tried in two
separate trials. However, the Commonwealth filed three separate notices of appeal—for
appellee’s case and those of his two co-defendants—moving this Court to consolidate the cases
into one appeal. A three-judge panel of this Court dismissed the appeals as to appellee’s two
co-defendants for lack of jurisdiction under Code § 19.2-398(A)(2).
BACKGROUND
On September 22, 2022, Henrico County Police Department officers saw appellee get in the
back passenger seat of an already-occupied sedan. Five people were in the car: appellee sat in the
back-right passenger seat with a man and woman in the seats to his left, while a woman sat in the
driver’s seat, and a man sat in the front passenger seat. The officers knew appellee had an
outstanding warrant for misdemeanor trespass and another passenger had a warrant for failing to
appear in court. Multiple police cars stopped the sedan to execute the warrants. The officers
conducting the stop got out of their cars, approached the sedan with their guns drawn, and ordered
everyone out of the sedan.
The officers immediately arrested appellee. When they searched him, they found he was
carrying a “digital scale” with a “white powder substance” on it. During the stop, the officers had a
K-9 trained in drug detection scan the outside of the car. When the dog alerted to the car—
indicating the presence of illegal drugs—the officers began to search the car.
The officers found various items of interest inside. On the floorboard in front of appellee’s
seat, they found a .45 caliber Glock 21 handgun. Next to it, they found a tote bag, which held four
cell phones. In the back-left passenger seat lay “a Disney character Snow White backpack that had
marijuana in it.” The officers also recovered two more handguns from the car: a 9-millimeter Glock
45 (found on the back floorboard) and a 9-millimeter Springfield XD (under the front passenger
seat). Another backpack found in the car also contained marijuana. In total, the marijuana
recovered weighed “about a pound and a quarter” and “was divvied up and distributed in little
baggies.”
Six phones in total were recovered, some of which were claimed by the car’s five occupants.
In addition to the four phones in the tote bag, a fifth phone was found in the center console (which
the female driver claimed), while the sixth phone was found on the male passenger who sat in the
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front seat. At the scene, the woman who had been sitting in the back passenger seat claimed the tote
bag and one of the four phones inside; she said none of the other three phones in the bag belonged
to her, and she did not know how they got inside the bag. With her permission, investigators
retained her phone as well as the three remaining unclaimed phones from the bag. One of the seized
phones from the bag—the phone at issue in this appeal—had a picture of appellee as the lock
screen, but appellee never claimed any of the phones, nor was he carrying one when he was
arrested.
After officers arrested appellee, took him to police headquarters, and gave him his Miranda2
warnings, appellee invoked his right to have his attorney present for questioning. An investigator
then immediately asked him if any of the unclaimed phones belonged to him. He replied, “No.”
Investigators later obtained a search warrant for the phone at issue and then a subsequent
search warrant for the phone’s records from T-Mobile. Appellee was then indicted on multiple
charges alleging his involvement with the alleged murder.
Arguing the officers improperly seized the phone during the search of the car, appellee
moved to suppress all evidence derived from the phone. In response, the Commonwealth argued
appellee had not borne his burden of establishing Fourth Amendment standing to challenge the
phone’s seizure. It pointed to the fact that multiple people were in the car and appellee never
claimed he owned one of the phones. In fact, appellee affirmatively disclaimed ownership of the
phone when asked. At the hearing on the motion, a detective testified for the Commonwealth;
citing his training and experience, he explained that cell phones, in conjunction with other evidence,
can indicate drug distribution.
The trial court issued an order granting the motion to suppress. In its order, the court
explained the search of the car was conducted pursuant to “the automobile exception and . . .
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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probable cause supplied by the K-9,” but it found the seizure of the phone improper. The court first
found appellee had standing to challenge the seizure under the “totality of the circumstances.” It
then applied the plain-view doctrine. Although the court acknowledged the detective’s testimony
that cell phones can sometimes serve as evidence of drug distribution, it concluded that because
“cell phones are ordinary items which are legal to possess and have legitimate purpose,” the phone
could not be seized under the plain-view doctrine. The court thus ruled inadmissible the phone and
any evidence obtained as a result of its seizure.
The Commonwealth filed a motion to reconsider in which it argued the trial court erred in
finding appellee had standing. It also asserted the officers had probable cause to seize the cell
phone. The trial court denied the motion to reconsider, and the Commonwealth appealed pursuant
to Code § 19.2-398.
ANALYSIS
Because appellee prevailed before the trial court, this Court views the facts in the light most
favorable to him, granting him all reasonable inferences that flow from those facts. See
Commonwealth v. Holloway, 9 Va. App. 11, 20 (1989). In reviewing the trial court’s grant of the
motion to suppress, this Court “give[s] deference to the factual findings of the circuit court, but . . .
independently determine[s] whether the manner in which the evidence was obtained meets the
requirements of the Fourth Amendment.” Curley v. Commonwealth, 295 Va. 616, 621 (2018)
(quoting Jones v. Commonwealth, 277 Va. 171, 177 (2009)). The Commonwealth must show the
trial court’s decision to grant the “motion to suppress was reversible error.” See Branham v.
Commonwealth, 283 Va. 273, 279 (2012).
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The trial court and the parties spent much discussion on the issue of Fourth Amendment
standing.3 However, this Court need not address appellee’s standing because, assuming without
deciding that appellee has standing to challenge the seizure of the phone, the officers had probable
cause to search the car and seize the phone. Commonwealth v. White, 293 Va. 411, 419 (2017)
(emphasizing courts should “decide cases ‘on the best and narrowest grounds available’” (quoting
Commonwealth v. Swann, 290 Va. 194, 196 (2015))).
In its order granting the motion to suppress, the trial court explained the search of the car
was conducted pursuant to “the automobile exception” to the warrant requirement and “probable
cause supplied by the K-9.”4 Appellee, of course, challenged only the seizure of the phone during
the search—not the search of the car more generally. See Atkins v. Commonwealth, 57 Va. App. 2,
11 (2010) (holding a passenger, with no “property nor . . . possessory interest in the” car, had no
standing to challenge the search of the car (citing Rakas v. Illinois, 439 U.S. 128, 148 (1978))). Nor
did he challenge the search of the phone’s contents.
Yet although the trial court acknowledged the search was conducted under the automobile
exception, it concluded the plain-view doctrine did not justify the seizure of the phone. That
conclusion was error.
3
The trial court determined that appellee’s express statement disclaiming ownership of
the phone was inadmissible because the investigators continued questioning appellee after he
requested counsel in violation of Miranda. See also Edwards v. Arizona, 451 U.S. 477, 485
(1981) (“[I]t is inconsistent with Miranda and its progeny for the authorities[] . . . to
reinterrogate an accused in custody if he has clearly asserted his right to counsel.”). Nonetheless,
the trial court concluded that, even were it to consider the statement, it would still hold appellee
had a protected interest in the phone.
4
Although warrantless searches are per se unreasonable under the Fourth Amendment, the
automobile exception stands as one of many exceptions. Curley, 295 Va. at 622; McCarthy v.
Commonwealth, 73 Va. App. 630, 639 (2021). Under that exception, “[p]robable cause to believe
that an automobile contains contraband or evidence of criminal activity . . . justif[ies] a warrantless
search of the automobile and seizure of the contraband.” United States v. Shackleford, 830 F.3d
751, 753 (8th Cir. 2016).
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The plain-view doctrine allows police, under certain circumstances, to seize contraband
or evidence of a crime lying in plain view without a warrant. Cauls v. Commonwealth, 55
Va. App. 90, 97-100 (2009). The plain-view doctrine “is exclusively a seizure rationale,” and
thus applies only when there is “a properly issued and executed [search] warrant or some other
properly applied exception to the warrant requirement.” Id. at 98-99. Specifically, the
plain-view doctrine requires
1) that the officer did not violate the Fourth Amendment in
arriving at the place from which the evidence could be plainly
viewed, 2) that the incriminating character of the evidence must be
immediately apparent, and 3) that the officer must have a lawful
right of access to the object itself.
Id. at 99 (emphasis omitted) (quoting Vaughn v. Commonwealth, 53 Va. App. 643, 648 (2009)).
In this case, the automobile exception to the warrant requirement provided the
justification to search throughout the car for evidence of narcotics, satisfying the plain-view
doctrine’s first and third requirements. See California v. Acevedo, 500 U.S. 565, 580 (1991)
(explaining the automobile exception allows for the search of “containers within [the car] where
[officers] have probable cause to believe contraband or evidence is contained”). That leaves only
the question of whether the phone’s “incriminating character” was “immediately apparent.”
Cauls, 55 Va. App. at 99 (emphasis omitted) (quoting Vaughn, 53 Va. App. at 648).
In assessing an object’s “incriminating character,” the probable cause standard applies.
Conway v. Commonwealth, 12 Va. App. 711, 721 (1991) (en banc) (“[T]o lawfully seize an item
under the plain view exception to the warrant requirement, the officer must have probable cause to
believe that the item in question is evidence of a crime or contraband.” (citing Arizona v. Hicks, 480
U.S. 321, 323, 326-27 (1987))). Evaluating probable cause demands a review of the totality of the
circumstances. Brown v. Commonwealth, 270 Va. 414, 419 (2005).
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The trial court focused only on the fact that a cell phone, on its own, is a common,
unsuspicious item. That approach, however, fails to consider the totality of the circumstances—and
here, the totality of the circumstances gave the officers probable cause to believe the unclaimed
phone was evidence of a crime. Accord, e.g., United States v. Henry, 827 F.3d 16, 28 (1st Cir.
2016) (affirming a seizure of cell phones under the plain-view doctrine because officers had
“probable cause to believe that [seized] phones likely had evidentiary value in the investigation of
the suspected crimes”).
The search of the car yielded three handguns and two bags containing 1.25 pounds of
marijuana. Moreover, appellee was carrying a scale with a white, powdery residue. Those
circumstances already raised the possibility that those items were related to drug distribution. On
top of that, there were six phones in the car and only five occupants. Of the four phones in the tote
bag, only one was claimed. As the trial court acknowledged, a detective testified that cell phones, in
conjunction with other evidence, can sometimes indicate drug distribution. Indeed, the law has
consistently recognized as much. See, e.g., White, 293 Va. at 424 (finding “overwhelming”
evidence of guilt to support intent-to-distribute conviction, which included “two cell phones, which
indicates distribution because, as the expert testified, dealers typically use one cell phone as a ‘drug
work phone’ and the other as a ‘personal phone’”); accord Model Jury Instrs.—Crim. No. 22.350
(including as an indicia of intent to distribute, inter alia, “the presence of a pager or electronic
communications device”).
The trial court correctly noted that a cell phone alone is typically a common, unsuspicious
item. But considering the totality of the circumstances here—including the guns and marijuana
found in the car, the number of phones, and the fact that three phones went unclaimed—an officer
could reasonably conclude the unclaimed phone at issue was evidence of a crime and seize it.
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CONCLUSION
The officers had probable cause to seize the cell phone as evidence of a crime. The trial
court therefore erred in granting appellee’s motion to suppress.
Reversed and remanded.
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