MARY JANE HALL JUDGE
Shemeka Hankins, Esq.
Office of the Commonwealth's Attorney
800 East City Hall Ave., Suite 600
Norfolk, Virginia 23510 Seth Doherty, Esq.
Office of the Public Defender
125 St. Paul's Blvd., Suite 600
Norfolk, Virginia 23510 Dear Counsel:
The matter came before the Court on Defendant's Motion to Suppress Evidence recovered as a result of a warrantless search by Norfolk Police of the living / berthing area of Defendant's boat. The issue before the Court is whether the police permissibly conducted a "protective sweep" of Defendant's boat, which also served as his primary residence, following Defendant's arrest on a misdemeanor warrant. The Court finds that police had an insufficient basis to search the interior of Defendant's vessel and SUSTAINS the motion to suppress.
FACTUAL BACKGROUND
On July 15, 2016, the date of his arrest, Defendant had been under surveillance by Vice and Narcotics officers of the Norfolk Police Department for some unspecified period of time. Information previously provided by a confidential informant had given police a description of Defendant and a description of his boat, which Investigator Dierks had found and photographed at the Willoughby Boat Ramp, C dock. The confidential informant also provided information that people were seen coming to and from Defendant's boat, although Dierks never observed anyone other than Defendant on the boat. Dierks testified that he had developed another target in the investigation, but the Commonwealth provided no additional evidence as to the nature of the investigation against Defendant or the role or involvement of the other target.
Dierks learned of the existence of a misdemeanor warrant for Defendant's arrest and contacted Harbor Patrol officers for assistance with serving that warrant. Harbor Patrol Officer Hylton, who assisted Dierks with executing the arrest warrant, testified that he had seen and spoken to Defendant at the Willoughby Boat Ramp several days prior to the arrest. He testified to observing a sign posted on Defendant's boat on that day which read, "Trespassers will be shot. Survivors will be shot again."
Dierks testified that on July 15, 2016, he saw Defendant's boat in the Willoughby Bay, adjacent to property on Little Bay Avenue. Defendant was standing on the deck on the bow of the boat, attempting to tie onto a pylon under Interstate 64. The Harbor Patrol boat came alongside Defendant's boat and Hylton and Dierks boarded it, advising that they had a warrant for Defendant's arrest. Upon inquiry, Defendant told the officers that nobody else was on the boat. Dierks told Defendant that he was going to do a protective sweep of the below-deck berthing area to ensure that nobody was hiding in there. As soon as he entered the berthing area, Dierks observed a bottle that he described as a "meth pot," a known indicator of a methamphetamine lab. Defendant was indicted for possession of precursors with the intent to manufacture methamphetamine and distribution of methamphetamine.
LEGAL ANALYSIS
The seminal case authorizing warrantless home searches as part of a protective sweep is Maryland v. Buie, 494 U.S. 325 (1990), where the Court held: "The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." Id. at 337.
The Commonwealth argues the following to support the conclusion that Investigator Dierks had a reasonable belief that the berthing area of the boat harbored an individual posing a danger to the arresting officers: 1) the confidential informant had reported seeing people coming and going to and from the boat while it was berthed at the Willoughby Boat Ramp, and 2) Vice and Narcotics officers had developed another target in the investigation.
Neither of these rise to the level of specific and articulable facts that the berthing area harbored a dangerous individual. Nothing was known about the people seen coming and going from Defendant's boat. The officer was not specific as to precisely when the informant had seen these people. The fact that they were reported as coming and going, rather than coming and staying, casts doubt on the conclusion that somebody was occupying the living area below deck while Defendant was on the deck trying to tie up his boat.
Likewise, the mere mention by the officer that another target had been developed provides an insufficient basis to justify the sweep of the living area. The Commonwealth provided no evidence that this other target would be expected to be in Defendant's company on the boat. The mere existence of a second target, who could be anybody and anywhere, does not provide a basis to conclude that a dangerous individual was below deck.
Finally, the Commonwealth argued that the "Trespassers will be shot" sign provided a reasonable basis to suspect that Defendant was armed and that police should ensure that he had no access to a weapon. The officer himself did not state that he was looking for a weapon; he confirmed that he was looking for additional persons, which is the proper limit of a Maryland v. Buie protective sweep. The Commonwealth did not show how Defendant, standing on the deck at the bow, could have accessed a weapon in the berthing area below deck such that a warrantless weapon search could be justified.
The Court inquired of Commonwealth witnesses about procedures or protocols that might have supported the application of the inevitable discovery rule. See, e.g., Commonwealth v. Jones, 267 Va. 532 (2008). The evidence did not establish that Defendant's boat would routinely have been inventoried and/or impounded following the arrest of the sole occupant; to the contrary, police testified that in some instances a boat will left where it is. Defense counsel proffered that in this case, Defendant's boat was left unattended and has since sunken. The Court therefore concludes that the evidence would not have inevitably been discovered.
The involvement of Vice and Narcotics in executing a misdemeanor arrest warrant with which they had no involvement, followed immediately by a warrantless search of the vessel that turned up evidence that Defendant was operating a meth lab, might cause one to suspect whether the warrantless search was the officers' objective all along. The Court finds that the Commonwealth did not carry its burden of proving that the search constituted a limited protective sweep of an area believed to be harboring a dangerous individual, nor does it satisfy any other exception to the requirement for a search warrant.
For these reasons, the motion is SUSTAINED.
The Clerk is DIRECTED to prepare an Order consistent with this ruling.
Counsel are directed to place the matter back on the Court's docket for further proceedings.
Sincerely,
/s/
Mary Jane Hall
Judge MJH/dyl