Evidence found in mint container excluded

Drug evidence in a mint container found in the vehicle appellant was driving will be suppressed. The police lacked probable cause to search the container and no exception to the Fourth Amendment’s warrant requirement applied.

Overview

Hudgens, a police officer, stopped the car appellant Baker was driving for a defective headlight. Benton, the passenger, owned the car. Hudgens learned Baker was driving on a suspended license. She explained that she was driving because Benton was intoxicated. Hudgens checked Baker’s record and discovered an outstanding warrant for a probation violation.

He arrested her, handcuffed her and took her to a space between the back of Benton’s car and the front of the police car. Benton remained in the car. Hudgens asked Baker if she wanted her coat from the car because it was cold outside. Baker said “yes.”

When Hudgens opened the car door to get the coat, he heard a “metallic rattling” inside the door. He saw a cigarette carton on top of the jacket. He search the carton, later explaining that Baker was going to jail and couldn’t take the cigarettes with her. He then saw a small Altoids tin inside the door.

Hudgens explained at trial that in his experience, such tins were sometimes used as kits for drugs. He opened the tin. There was a powdery residue and three razor blades inside. Baker was later charged with possessing cocaine and fentanyl.

Baker moved to suppress the tin and its contents. “Hudgens testified that while performing the records check, he learned that Baker was wanted for a probation violation, but was unsure whether the violation related to a previous drug charge or a previous larceny charge. Hudgens also testified that he was aware of Baker’s criminal history, which included her prior drug charges.

“Hudgens further testified that he only arrested Baker for violating her probation on the previous larceny conviction. Hudgens admitted that Benton witnessed the search of the Altoids tin prior to consenting to the search of her vehicle. Finally, Hudgens acknowledged that no inventory search of the car ever occurred.”

The trial court ruled that Hudgens lacked probable cause to open the tin but denied the motion to suppress. The court said the evidence was admissible under the search incident to arrest exception to the Fourth Amendment’s warrant requirement. The court also ruled that the inevitable discovery exception applied because Benton consented to searching the tin.

Baker entered a conditional guilty plea. On appeal, she argues that Hudgens lacked probable cause to search the vehicle and none of the warrant exceptions applied.

Probable cause

The commonwealth argues that the automobile exception provided Hudgens with probable cause to search the tin. “This exception applies when an officer has probable cause to believe that a vehicle contains evidence of criminal activity. … However, the Supreme Court of Virginia has repeatedly held that probable cause cannot be established ‘solely on the observation of material which can be used for legitimate purposes, even though the experience of an officer indicates that such material is often used for illegitimate purposes.’ …

“[T]he evidence shows that the incriminating nature of the Altoids tin was not revealed until after Hudgens seized the container from the door compartment, opened it, and searched its contents with a flashlight. Only after Hudgens followed that series of steps did he determine that the Altoids tin possibly contained heroin.”

The trial court correctly determined Hudgens lack probable cause to search. But “[n]either the automobile nor plain view exceptions justified Hudgens’s seizure and search of the Altoids tin.”

Search incident to arrest

In Arizona v. Gant, 556 U.S. 332, 346 (2009), the U.S. Supreme Court “held that ‘[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.’”

But when Hudgens conducted his search, Baker was handcuffed, outside of the car, under arrest for a probation violation and was not “within reaching distance of the passenger compartment. …

“Hudgens never testified that he believed that the vehicle contained evidence of the offense of arrest[.] … Hudgens testified only that he heard a ‘metallic rattling,’ saw the Altoids tin, and then searched the vehicle.

“Because the facts in this case are wholly insufficient to invoke the search incident to arrest exception to the warrant requirement, Hudgens’s warrantless search of the Altoids tin was impermissible under Gant.

Inevitable discovery

“Resolving Baker’s final challenge turns upon whether discovery of the contraband was inevitable when Benton, the owner of the vehicle, consented to Hudgens’s request to search where the Altoids tin was found. Because Benton’s consent was procured only after the illegal search of the Altoids tin and after Hudgens confronted Benton with the tin’s illegal contents, Baker assigns error to the trial court’s ruling that the Altoids tin would have inevitably been discovered. We agree with Baker; Benton’s consent did not cure the preceding illegal search.

“Evidence recovered from an illegal search is ‘subject to the exclusionary rule, which prohibits the introduction of evidence, tangible or testimonial, acquired during an unlawful search.’ … Determining whether evidence should be excluded turns upon whether the discovery of the evidence was ‘come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’”

In this case, “the search preceded the consent; Benton watched as Hudgens searched both the vehicle and the Altoids tin. Hudgens subsequently confronted Benton with the contents of the tin and the accusation that it contained contraband. Only after discovering the incriminating evidence did Hudgens belatedly seek Benton’s consent.

“That belated request came too late. No intervening circumstances existed aside from consent, and Benton was not advised that she could refuse consent. Finally, no time had passed between the illegal search and the acquisition of the evidence. …

“Benton’s consent was procured through exploitation of the initial illegal search, not by means sufficiently distinguishable from the illegal search to purge the taint. Because Benton’s consent was tainted, we find that the inevitable discovery exception does not apply.”

Reversed and remanded for further proceedings.

Baker v. Commonwealth, Record No. 1417-18-1, Feb. 25, 2020. CAV (Athey) from Chesapeake Cir. Ct. (Banks). Daniel Hogan for appellant, Liam A. Curry for appellee. VLW 020-7-036, 10 pp. Unpublished.