PAUL C. THIMS v. COMMONWEALTH OF VIRGINIA
Record No. 761248
Richmond
June 10, 1977.
218 Va. 85
Present: All the Justices.
Alan Katz, Assistant Attorney General (Anthony F. Troy, Attorney General, on brief), for defendant in error.
COCHRAN, J., delivered the opinion of the Court.
In a jury trial, Paul C. Thims was found guilty of statutory burglary and larceny of a Sony stereo receiver, and his punishment was fixed at confinement in jail for nine months for
After conducting two pre-trial hearings as to the circumstances under which the stereo was seized without a warrant, the trial court overruled Thims‘s motion to suppress the evidence. We review the evidence presented to the trial court by the Commonwealth in justification of the warrantless seizure.
On October 6, 1975, Officer Michael J. Dwyer, of the Arlington County Police Department, investigated a burglary and larceny reported by Phyllis Dorsey to have occurred at the Dorsey residence. When he arrived at 6:30 p.m. Dwyer viewed the point of entry and ascertained from Miss Dorsey that, among other items, her Sony stereo receiver had been stolen and that she suspected Thims and his sister, Rhonda, of having committed the crimes. Later in the evening Miss Dorsey reported to Dwyer that several of her personal checks had also been stolen.
About 7:45 to 8:00 p.m. on the same evening Thims was arrested in the City of Falls Church for operating an automobile on a revoked driver‘s permit. A set of car keys, which did not fit the car he was driving when arrested, was taken from him. Shortly thereafter Susan Graham, a juvenile who had been talking to Thims in his car, was arrested for reasons which are not clear in the record, although initially she gave the officers false information as to her identity. Two other juveniles, Susan Dorsey, sister of Phyllis Dorsey, and Rhonda Thims, sister of the defendant, were also taken into custody at the Falls Church Police Station.
Dwyer, arriving there about midnight, talked to the arresting officers, observed a receipt, taken from Susan Graham‘s purse, for the purchase of a Ford Thunderbird, the car keys taken from Thims, and two of Phyllis Dorsey‘s checks, and interviewed Susan Graham and Susan Dorsey. Susan Graham told him that during the preceding afternoon she had seen a stereo and some checks in Thims‘s car, and that Thims had said “that he was going back to the Dorsey home to try to pick up some more
Dwyer‘s interviews with Graham and Dorsey were typed by approximately 5:10 a.m. At 6:30 a.m. Dwyer and another officer undertook to transport the girls to the Northern Virginia Detention Home in Alexandria, arrived shortly at 7:00 a.m., delivered the juveniles into the custody of the authorities at that facility, and returned to the Arlington County Police Department at 9:00 a.m. About ten minutes later Dwyer proceeded to the Thims residence, where he saw, from the street, a 1962 blue Thunderbird, bearing no license plates and no inspection sticker, in the driveway. Dwyer walked into the driveway, opened an unlocked door of the car, obtained the vehicle identification number, and tried to ascertain from the Division of Motor Vehicles the ownership of the automobile. It was reported to him that the car was not registered in Virginia, Maryland, or the District of Columbia.
Believing that the car had been purchased with stolen and forged checks and was the fruit of a crime, that it may have been stolen, and that it contained stolen property, Dwyer seized the Thunderbird and made a limited inventory search during which he unlocked the trunk with the set of keys that had been taken from Thims and seized Phyllis Dorsey‘s Sony stereo which he found therein. As far as he knew Thims was in jail at this time. While Dwyer was in the driveway, Thims‘s mother came out of the house. She did not ask Dwyer to leave, and Dwyer did not ask her permission to search or remove the car. Upon completing his search, Dwyer had the Thunderbird towed to the police property yard.
Under the
The trial court found from the evidence that Dwyer had the right to seize the Thunderbird because it was in “plain view” and he had probable cause to believe that the car itself was evidence of a crime. The court further found that the officer had the right to conduct the ensuing inventory search in order to protect the property owner and the police.
Thims contends that under Coolidge v. New Hampshire, 403 U.S. 443 (1971), a combination of “plain view” and probable cause is insufficient to justify the warrantless seizure and search of an automobile parked in the owner‘s driveway. We agree that the plurality opinion in Coolidge states unequivocally that “plain view” alone is never sufficient to justify the warrantless seizure of evidence and that no amount of probable cause can justify a warrantless search or seizure, absent exigent circumstances. 403 U.S. at 468.
In Lugar v. Commonwealth, 214 Va. 609, 202 S.E.2d 894 (1974), we assumed, without deciding, that the plurality opinion in Coolidge had precedential effect. We therefore held that law enforcement officers lawfully on private property to search for a suspect could not seize articles in plain view which, though evidence of a crime, the officers did not come upon inadvertently. We believe, however, that the inadvertence requirement of Coolidge is inapplicable in the present case where the law enforcement officer standing outside the protected zone of private property observed the Thunderbird parked in the Thims driveway. Thus, in Cook v. Commonwealth, 216 Va. 71, 216 S.E.2d 48 (1975), we held that a law enforcement officer did not engage in a search in the constitutional sense when he stood in a public street, looked into a car parked at the curb, and observed therein in open view what he had probable cause to believe was evidence of a crime. There, a majority of the Court,
Thims, relying primarily on Coolidge, insists that Dwyer had no probable cause to seize the Thunderbird, and that there were no exigent circumstances. We do not agree. The facts in Coolidge are distinguishable. There, the officers knew about Coolidge‘s car for some days and described it in a search warrant which was found to be defective; the car was regularly parked in his driveway; officers guarded the house, so that no access to the car was possible; Coolidge was arrested and removed; his wife was transported by the police to another town; and the Coolidge premises were guarded throughout the night by policemen. There was no evidence that the car was being used for an illegal purpose or that it contained contraband or stolen property. Moreover, the officers had made a valid intrusion on private property to arrest Coolidge when they seized the automobile, and their discovery of the vehicle, therefore, was not inadvertent.
In the present case, Dwyer had received information from two girls, 16 years of age at the time of trial, one of whom had initially lied to the police about her identity, that the stolen stereo had been placed in the trunk of a blue 1962 Thunderbird which had been purchased with a stolen and forged check, and that the Thunderbird had been parked in the driveway of the Thims‘s residence. The officer was thus getting information, not from informants whose reliability was known, McKoy v. Commonwealth, 212 Va. 224, 183 S.E.2d 153 (1971), or from citizen-informers whose reliability reasonably might be assumed, Guzewicz v. Commonwealth, 212 Va. 730, 187 S.E.2d 144 (1972), but from two juveniles who were admittedly infatuated with Thims, a man 22 years of age, who were to some extent implicated with him, and whose reliability was not
Having probable cause Dwyer was then confronted for the first time with a vehicle which could be quickly moved. Although Thims and his sister Rhonda, as well as Susan Graham and Susan Dorsey, had been taken into custody the previous evening, along with what turned out to be keys to the Thunderbird, Dwyer had no way of knowing who else might have keys to the vehicle. At least two other persons, it could reasonably be inferred, might have had motives to remove it while Dwyer took additional time to get a warrant. Thims‘s mother occupied the premises and was present. Additionally, the previous owner of the car might have sought to regain possession of it. Moreover, Thims himself might have telephoned to a friend, relative, or confederate to remove the car, or he might have been released on bail, and, during Dwyer‘s absence to obtain a warrant, removed the car himself. So there were exigent circumstances.
Thims argues that Dwyer had ample time to obtain a search warrant. But this presupposes probable cause that did not arise until Dwyer saw the Thunderbird. Dwyer explained the reasons for his delay in pursuing his investigation. It was his responsibility, as the officer investigating the burglary and larceny case, to transport the juvenile suspects to the detention center. He fulfilled this duty shortly after the statements of Graham and Dorsey had been completed, and proceeded, without undue delay, to the Thims residence. There is no evidence that Dwyer, after finding the Thunderbird, had time to obtain a warrant. Exigent circumstances may arise at any time, and the fact that a warrant might have been obtained earlier does not negate the possibility that prompt police action may be required. Cardwell v. Lewis, 417 U.S. 583 (1974). See Patty v. Commonwealth, 218 Va. 150, 235 S.E.2d 437 (1977) (this day decided).
Upon verification of his information Dwyer had probable cause to believe that the car was the fruit of a crime, that it might be stolen, and that it contained stolen property. He then for the first time had probable cause to seize and search the vehicle. To do so he had the right to enter the driveway and open
If the seizure was lawful, the ensuing search was valid, whether it be considered an inventory search or a search for stolen goods reasonably believed to be in the trunk of the car. Schaum v. Commonwealth, 215 Va. 498, 211 S.E.2d 73 (1975). The trial court found that Dwyer conducted a legitimate inventory search, and the evidence, showing that the officer followed procedures established by the Arlington County Police Department, supports this finding. See Cabbler v. Commonwealth, 212 Va. 520, 184 S.E.2d 781 (1971), cert. den., 405 U.S. 1073 (1972); Cabbler v. Superintendent, 528 F.2d 1142 (4th Cir. 1975), cert. den., 429 U.S. 817 (1976); South Dakota v. Opperman, 428 U.S. 364 (1976). In view of this factual finding Thims‘s contention that Dwyer contrived an inventory search as a pretext is without merit.
In the present case, no search occurred when Dwyer first saw the Thunderbird, clearly visible from the street, parked in the driveway. There was no prior valid intrusion to invoke the inadvertence requirement of the Coolidge “plain view” doctrine. We believe that Dwyer then had the right to make a seizure of the parked car as evidence of a crime, as the trial court ruled. In G. M. Leasing Corp. v. United States, 429 U.S. 338 (1977), it was held that warrantless seizures of automobiles parked in public streets, parking lots, and other open areas were
Alternatively, we hold that the seizure and search were not unreasonable under the rationale of the plurality opinion in Coolidge because in addition to probable cause there were exigent circumstances arising from the inherent mobility of a motor vehicle. Under this alternative holding, the right result reached by the trial court, although for the wrong reason, will nevertheless be approved.
Thims further argues that Dwyer‘s actions were prohibited by
For the reasons assigned, the judgment of the trial court will be affirmed.
Affirmed.
I dissent. Controlling precedents required suppression.
If the warrantless seizure of the Thunderbird automobile was constitutionally infirm, the fruits of that seizure were inadmissible as evidence.1 While portions of the decision of the Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443 (1971) were subscribed by only a plurality, Mr. Justice Harlan concurred with four Justices in “Parts I, II-D, and III of the Court‘s opinion and in the judgment of the Court.” Id. at 491. With respect to those parts, the opinion has the same precedential effect as any other majority opinion. Excerpts from Part II-D are especially relevant here:
“[A] search or seizure carried out on a suspect‘s premises without a warrant is per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of ‘exigent circumstances.’ ” Id. at 474-75.
“Since the police knew of the presence of the automobile and planned all along to seize it, there was no ‘exigent circumstance’ to justify their failure to obtain a warrant. The application of the basic rule of Fourth Amendment law therefore requires that the fruits of the warrantless seizure be suppressed.” Id. at 478.
On brief, the Commonwealth concedes that the Thunderbird was found “in a protected zone of privacy (located in a driveway of private property)“. The police had been told in advance that it would be found there. One of the detectives in the Criminal Investigation Division had “advised the vehicle should be
Nevertheless, the majority have found that the warrantless seizure was justified by exigent circumstances. There is no general ‘automobile exception’ to the warrant requirement.” South Dakota v. Opperman, 428 U.S. 364, 382 (1976) (Powell, J., concurring). The “inherent mobility” doctrine is viable only when mobility poses a realistic danger that the vehicle may be removed before a warrant can be procured. The Thunderbird had no license tags or inspection sticker. The officer was in possession of the only known set of ignition keys. The defendant and the girls who had implicated him in the crimes were in police custody. Time and distance made it impossible for the
In hindsight, the majority have discovered “exigencies” which the officer who made the seizure did not see.4 At the first of two hearings on the motion to suppress, the officer justified the warrantless seizure on the ground “that the vehicle could possibly be stolen and contained stolen merchandise“. At the second hearing, he made no reference to the possibility that the car might have been stolen. Rather, he felt that a warrant was not required because the car was “purchased with stolen, forged checks” and, since the car was “fruits of the crime itself“, it should be “taken into custody as evidence.” In neither hearing did the officer express any concern that the car might be moved or its contents spirited away by the defendant, the former owner, the defendant‘s mother, or some faceless friend. In making the warrantless seizure, he was motivated, not by circumstances he considered exigent, but by probable cause to believe that the car and what he expected to find in its trunk were seizable items. But if probable cause as determined by the officer were sufficient, then the warrant clause of the Fourth Amendment which requires “that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police“, Wong Sun v. United States, 371 U.S. 471, 481-82 (1963) would be meaningless. “A related purpose of the warrant requirement is to prevent hindsight from affecting the evaluation of the reasonableness of a search.” South Dakota v. Opperman, supra, 428 U.S. at 383 (Powell, J., concurring).
An “inventory search” of an automobile conducted in accord with prescribed police regulations is constitutionally permissible
The seizure of the car, the search of the car, and the seizure of the radio, all without benefit of warrant and wholly unjustified by any exigent circumstance, violated the very essence of the Fourth Amendment guarantee. So long as the exclusionary rule remains applicable to the states, Mapp v. Ohio, 367 U.S. 643 (1961), Hawley v. Commonwealth, 206 Va. 479, 481, 144 S.E.2d 314, 316 (1965), cert. denied, 383 U.S. 910 (1966), we should apply it.