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NOVEMBER 30, 1999

Record No. 2717-97-2







Oliver A. Pollard, Jr., Judge

Present: Chief Judge Fitzpatrick, Judges
Benton, Coleman, Willis, Elder, Bray, Annunziata, Bumgardner,
Lemons and Frank

Argued at Richmond, Virginia


Mary Katherine Martin, Senior Assistant Public
Defender (Office of the Public Defender, on brief),for appellant.

Jeffrey S. Shapiro, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.

Jeffery McNair was convicted of possession of
cocaine in violation of CodeSect. 18.2-250. He contends the
trial court erred by denying his motion to suppress evidence
obtained during a warrantless search of his residence following
an investigation of a reported robbery. He also contends the
evidence is insufficient to support the conviction.

A divided panel of this Court affirmed the
trial judge’s rulings, see McNair v. Commonwealth,
29 Va. App. 559, 513 S.E.2d 866 (1999), and we granted a
rehearing en banc. Upon rehearing en banc,
we hold that the trial court did not err by denying the motion to
suppress the evidence, but we find the evidence insufficient to
support the conviction. Accordingly, we vacate the panel
decision, reverse McNair’s conviction for possession of cocaine,
and dismiss the charge.


Officer William Hannum responded to a report
that a robbery was in progress at McNair’s apartment. McNair, who
was "very upset," told Officer Hannum that he had just
been robbed and that he believed the robbers were still inside
his apartment. Officer Hannum remained with McNair until two
additional police officers arrived. Officer Hannum and the two
officers then searched McNair’s apartment, "mainly looking
for anyone who might have done the robbery . . . or any
other individuals that might need . . .
assistance." During their search of the two-level apartment,
which "was in somewhat of a state of disarray, of
clutter," the officers entered McNair’s second-floor
bedroom. Finding no one in the apartment, the officers returned
to the first-floor living room and discussed the robbery with

Detective Willie Wells arrived while Hannum and
the other officers were in the living room talking to McNair. At
that time, an emergency crew was removing a "victim"
from the apartment. Detective Wells asked Hannum whether he or
the other officers had looked for clues to the robbery. Without
speaking to McNair about the robbery, Wells then went upstairs
"specifically looking for evidence that the robbers might
have dropped or left behind." In McNair’s bedroom, which was
in disarray, the detective noticed a glass test tube lying in
plain view on the floor in the doorway to a closet. The test tube
was intact, contained a white substance, and contained moisture
on the inside. The detective testified that he recognized the
tube as a type that "is commonly used to cook up small
amounts of crack cocaine." When the detective asked McNair
about the test tube, McNair replied that the robbers must have
dropped it when they were in his bedroom. The white substance in
the test tube proved to be cocaine. McNair was charged with
possession of the cocaine.


Motion to Suppress

McNair argues that the test tube was seized by
the police during an unlawful search of his residence and that
the trial court erred by refusing to suppress the test tube and
cocaine as evidence. Conceding that exigent circumstances existed
when the officers initially arrived at his apartment, which would
have justified their searching his apartment without a warrant,
McNair argues that the exigency ceased to exist when the officers
determined that the robbers were no longer present and no one
needed emergency assistance. McNair argues that Detective Wells’
subsequent warrantless search of the apartment was unreasonable
and, therefore, violated the Fourth Amendment.

When we review a trial court’s denial of a
motion to suppress, "[w]e view the evidence in a light most
favorable to . . . the prevailing party below, and we
grant all reasonable inferences fairly deducible from that
evidence." Commonwealth v. Grimstead, 12 Va. App.
1066, 1067, 407 S.E.2d 47, 48 (1991). In our analysis, "we
are bound by the trial court’s findings of historical fact unless
‘plainly wrong’ or without evidence to support them." McGee
v. Commonwealth
, 25 Va. App. 193, 198, 487 S.E.2d 259, 261
(1997) (en banc) (citing Ornelas v. United
, 517 U.S. 690, 699 (1996)). However, we consider de
novo whether those facts implicate the Fourth Amendment
and, if so, whether the officers unlawfully infringed upon an
area protected by the Fourth Amendment. See id.

Subject to several well established exceptions,
the Fourth Amendment prohibits warrantless searches of any place
or thing in which a person has a justifiable expectation of
privacy. See Mincey v. Arizona, 437 U.S. 385, 390
(1978). However, searches made by the police pursuant to a valid
consent do not implicate the Fourth Amendment. See Schneckloth
v. Bustamonte
, 412 U.S. 218, 222 (1973); Iglesias v.
, 7 Va. App. 93, 99, 372 S.E.2d 170, 173 (1988) (en
banc). When relying upon consent as the justification for
a search, the Commonwealth must prove, given the totality of the
circumstances, that the consent was freely and voluntarily given.
See Bumper v. North Carolina, 391 U.S. 543, 548
(1968); Hairston v. Commonwealth, 216 Va. 387, 388, 219
S.E.2d 668, 669 (1975); Commonwealth v. Rice, 28 Va. App.
374, 378, 504 S.E.2d 877, 879 (1998). "A consensual search
is reasonable if the search is within the scope of the consent
given." Grinton v. Commonwealth, 14 Va. App. 846,
850-51, 419 S.E.2d 860, 862 (1992). "The standard for
measuring the scope of a suspect’s consent under the Fourth
Amendment is that of ‘objective’ reasonableness — what would the
typical reasonable person have understood by the exchange between
the officer and the suspect?" Florida v. Jimeno, 500
U.S. 248, 251 (1991). While conducting a consensual search, the
police may lawfully seize an item that they discover in plain
view if they "have probable cause to believe that the item
in question is evidence of a crime or contraband." Conway
v. Commonwealth
, 12 Va. App. 711, 721, 407 S.E.2d 310, 316
(1991) (en banc).

Here, the officers responded to a report that a
robbery was in progress at McNair’s residence. McNair met the
responding officers and informed them that the robbers could
still be in his apartment. When an initial search of the
residence disclosed no suspects, McNair voluntarily assisted the
officers by answering questions while standing in the living room
of his apartment. At no point did he attempt to restrict or
terminate the officers’ investigation of his residence, which he
had requested.

When Detective Wells arrived, he asked Officer
Hannum whether the officers had searched for clues to the
robbery. The detective then went upstairs. McNair did not object.
From this evidence, the trial court reasonably inferred that
McNair (1) consented to the officers’ presence in his apartment
for the purpose of investigating the robbery, (2) observed the
detective go upstairs, and (3) knew that the detective was
searching for clues to the robbery. McNair’s failure to withdraw
his consent is evidence that he consented to Detective Wells’
search. See Lawrence v. Commonwealth, 17 Va. App.
140, 146, 435 S.E.2d 591, 594-95 (1993), aff’d, 247 Va.
339, 443 S.E.2d 160 (1994); see also Grinton,
14 Va. App. at 851, 419 S.E.2d at 863 ("[t]he scope of a
search may be further defined during the course of the search by
the passive acquiescence of the person whose property is being

McNair argues that the Supreme Court’s ruling
in Thompson v. Louisiana, 469 U.S. 17 (1984) (per curiam),
is controlling. We disagree. Thompson dealt with the
government’s contention that a "crime scene" exception
exists to the warrant requirement. In Thompson, the
petitioner shot her husband and then attempted to kill herself by
taking a large quantity of pills. Before she lost consciousness,
she called her daughter, requesting help. The daughter contacted
the police. The responding officers searched the petitioner’s
residence, looking for additional victims or suspects. See
id. at 18. The search uncovered no evidence. Thirty-five
minutes after transporting the petitioner to the hospital and
after securing the scene, two homicide investigators arrived and
without obtaining a warrant, searched the residence for two hours
for the purpose of securing evidence pertaining to the
murder-attempted suicide investigation. See id.
During this search, the investigators found items that were
admitted at trial as evidence against the petitioner. See id.
at 18-19. The Supreme Court reversed the murder conviction and
disagreed with the Louisiana Supreme Court’s finding that the
petitioner, by making the call to her daughter for assistance,
had a "diminished expectation of privacy" in her home. Id.
at 22. The Court specifically noted that no one had given consent
to search the residence. See id. at 19. The Court
stated that the "[p]etitioner’s call for help can hardly be
seen as an invitation . . . that would have converted
her home into the sort of public place for which no warrant to
search would be necessary." Id. at 22. See also,
Mincey, 437 U.S. 385 (no crime scene exception to the
warrant requirement exists), and Flippo v. West Virginia,
___ U.S. ___ (No. 98-8770 Oct. 18, 1999).

McNair’s reliance on Thompson is
misplaced, because here the police had McNair’s consent to search
for evidence of criminal activity. In Thompson, the Court
specifically explained that it "express[ed] no opinion as to
whether the search at issue . . . might [have] be[en] justified as consensual." 469 U.S. at 23. Here, McNair
contacted the police reporting a robbery at his residence and
that the robbers may still be in the home. Either expressly or
implicitly, McNair consented to the officers searching his house
in order to investigate the reported crime. Conversely, in Thompson,
the defendant’s telephone call to her daughter in no way could be
construed as implied consent by Thompson to allow the police
inside her residence. Furthermore, the scope of the search in Thompson
is distinguishable from the search in the instant case. In Thompson,
the warrantless search began thirty-five minutes after the scene
had been secured and lasted two hours. The officers’ search was
not limited to a cursory inspection of whether an emergency
situation existed, but rather, involved an extensive search which
included opening Christmas card envelopes and reading discarded,
torn paper in the trash can. Here, Detective Wells testified that
upon entering McNair’s bedroom to continue the robbery
investigation that McNair had requested, he discovered the test
tube in plain view. Thompson, therefore, does not control
our decision.

Once valid consent is given, the police may
conduct a reasonable search of a residence until the consent is
unequivocally withdrawn. See Lawrence, 17 Va. App.
at 146, 435 S.E.2d at 595 (recognizing that withdrawal of consent
requires an "unequivocal act or statement of
withdrawal"). Here, an officer reasonably could have
believed that, in responding to a report of a robbery in
progress, the scope of the consent to search permitted a search
for clues to the crime, not just for the presence of robbers.
Consequently, any items of illegal contraband discovered in plain
view during the consensual search may be seized by the officers
and may be used as evidence at trial. See Jimeno,
500 U.S. at 251 (stating that "[t]he scope of a search is
generally defined by its expressed object"). The trial
court, therefore, did not err by denying McNair’s motion to
suppress the seized cocaine.


Next, McNair argues that the evidence was
insufficient to prove he possessed the cocaine in the test tube
found in his bedroom. He argues that the evidence contained no
direct proof of possession by him and that the circumstantial
evidence did not exclude the reasonable hypothesis that the
robbers left the test tube in his closet. We agree.

"To establish possession of a controlled
substance, it generally is necessary to show that the defendant
was aware of the presence and character of the particular
substance and was intentionally and consciously in possession of
it." Gillis v. Commonwealth, 215 Va. 298, 301, 208
S.E.2d 768, 771 (1974). Possession may be actual or constructive.
Constructive possession may be proved through evidence
demonstrating "that the accused was aware of both the
presence and character of the substance and that it was subject
to his or her dominion and control." Wymer v.
, 12 Va. App. 294, 300, 403 S.E.2d 702, 706
(1991). "Suspicious circumstances, including proximity to a
controlled drug, are insufficient to support a conviction." Behrens
v. Commonwealth
, 3 Va. App. 131, 135, 348 S.E.2d 430, 432
(1986). "To support a conviction based upon constructive
possession, ‘the Commonwealth must point to evidence of acts,
statements, or conduct of the accused or other facts or
circumstances which tend to show that the defendant was aware of
both the presence and character of the substance and that it was
subject to his dominion and control.’" Drew v.
, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986)
(quoting Powers v. Commonwealth, 227 Va. 474, 476, 316
S.E.2d 739, 740 (1984)). Circumstantial evidence is sufficient to
prove guilt beyond a reasonable doubt so long as "all
necessary circumstances proved . . . [are] consistent
with guilt and inconsistent with innocence and must exclude every
reasonable hypothesis of innocence." Bishop v.
, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984).
The Commonwealth "need not affirmatively disprove all
theories which might negate the conclusion that the defendant
. . . [possessed the cocaine], but the conviction will
be sustained if the evidence excludes every reasonable hypothesis
of innocence." Higginbotham v. Commonwealth, 216 Va.
349, 353, 218 S.E.2d 534, 537 (1975).

When an appellant challenges the sufficiency of
the evidence, we view the evidence "in the light most
favorable to the Commonwealth and give it all reasonable
inferences fairly deducible therefrom." Id. at 352,
218 S.E.2d at 537. The Commonwealth’s evidence failed to prove
acts, words, or conduct by McNair or other circumstances from
which the trial judge could infer beyond a reasonable doubt that
McNair knowingly and intentionally possessed the cocaine found in
the test tube in his second-floor bedroom. See Hairston
v. Commonwealth
, 5 Va. App. 183, 186, 360 S.E.2d 893, 895
(1987). McNair contacted the police after a robbery purportedly
occurred in his residence. On the second floor, where the robber
or robbers reportedly had been, the police observed that McNair’s
bedroom was in disarray. According to the detective, the disarray
of the room was consistent with one or more persons having
searched it for something. When asked about the test tube, McNair
expressed no awareness of it and told the police that the robbers
must have left it in the apartment. He denied any knowledge of
the test tube.

Although the detective testified that he had
found test tubes similar to the one found in McNair’s closet when
executing search warrants for drug distribution, no evidence
negated the hypothesis that the robbers left or dropped the test
tube as they searched the room. The police found no smoking
devices in the residence or on McNair and found no other drugs or
drug paraphernalia related to cocaine. See Behrens,
3 Va. App. at 135, 348 S.E.2d at 432. Although the test tube
containing cocaine was found in McNair’s bedroom, no evidence
other than its location tied it to McNair and the disarray in the
room and report of a robbery support the view that individuals
other than McNair had most recently been in the bedroom. No
evidence proved McNair was in the bedroom at any time after the
robbers left and before the police discovered the test tube. The
fact that the detective found moisture on the inside of the test
tube, a circumstance consistent with cooking crack cocaine, did
not tend to prove that McNair "cooked the cocaine"
rather than that the robbers had done so either before arriving
or while at McNair’s apartment. Although the record contains few
details about the alleged robbery, the disarray in the apartment
and the fact that a victim was removed support the conclusion
that something untoward occurred prior to the officers’ arrival.
Apparently, McNair had made no complaint about a forced entry or
burglary. Although the circumstances are suspicious, from this
evidence, it is just as likely that the test tube containing
cocaine had been used and left there by the robbers or by the
"victim" as by McNair and that he had exercised no
dominion and control over it. Because the circumstantial evidence
does not exclude other reasonable hypotheses, as supported by the
evidence, that the robbers or someone other than the defendant
left the test tube behind, the evidence is insufficient to
support the conviction. See Drew, 230 Va. at
473-74, 338 S.E.2d at 845-46; Garland v. Commonwealth, 225
Va. 182, 300 S.E.2d 783 (1983); Burchette v. Commonwealth,
15 Va. App. 432, 425 S.E.2d 81 (1992); Behrens, 3 Va. App.
136-37, 348 S.E.2d at 433-34.


In summary, we find that the detective’s search
of McNair’s residence was made with McNair’s consent, and we
affirm the trial court’s refusal to suppress the test tube and
cocaine as evidence. Additionally, we find the evidence is
insufficient to support the conviction for possession of cocaine.
We, therefore, vacate the panel decision, reverse McNair’s
conviction, and dismiss the charge.

Reversed and dismissed.

Benton, J., concurring, in part, and
dissenting, in part.

I concur in the portions of the opinion styled Background
and Sufficiency, and I concur in the judgment reversing
the conviction and dismissing the indictment. I dissent, however,
from the conclusion that Jeffrey McNair consented to Detective
Wells’ search of McNair’s bedroom for clues to the robbery.

"The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated." U.S. Const.
amend. IV. "In a long line of cases, [the United States
Supreme] Court has stressed that ‘searches conducted outside the
judicial process, without prior approval by judge or magistrate,
are per se unreasonable under the Fourth Amendment
— subject only to a few specifically established and well
delineated exceptions.’" Thompson v. Louisiana, 469
U.S. 17, 19-20 (1984) (citation omitted). "The landmark case
of Mincey v. Arizona, 437 U.S. 385 (1978) established that
no ‘crime scene exception’ to the warrant requirement
exists." Hunter v. Commonwealth, 8 Va. App. 81, 84,
378 S.E.2d 634, 635 (1989). See also Thompson,
469 U.S. at 21 (reaffirming the Mincey holding that
creating a crime scene exception for a warrantless search
"’is inconsistent with the Fourth and Fourteenth

In Thompson, the record established that
the petitioner shot her husband and then attempted to kill
herself by taking a large quantity of pills. Before she lost
consciousness, however, the petitioner called her daughter, who
then called the police. The responding officers searched
petitioner’s residence for additional victims or suspects. See
469 U.S. at 18. This search uncovered no evidence. Later, two
homicide investigators arrived and searched the residence for two
hours for the purpose of finding evidence. During this search,
the investigators found items which were later admitted into
evidence against the petitioner at trial. See id.
at 18-19. The Supreme Court, in a per curiam opinion, reversed
the conviction and rejected the government’s contention that the
petitioner, by making the call for assistance, had a
"diminished expectation of privacy." Id. at 22.
Specifically, the Court stated that the "[p]etitioner’s call
for help can hardly be seen as an invitation . . . that would
have converted her home into the sort of public place for which
no warrant to search would be necessary." Id.

In this case, the evidence proved that when the
officers initially arrived at the "set of apartments"
where McNair lived, they "met . . . McNair right at the
entrance of the apartments." After McNair said "he
thought that the individuals who had [committed] the robbery were
still in the apartment," the officers "went down to the
apartment." The officers entered McNair’s apartment and
searched the apartment for possible robbers and victims. McNair’s
suppression argument would lack merit had the cocaine been
recovered during this initial search. See Thompson,
469 U.S. at 22. However, the test tube containing cocaine was not
found during the initial search for robbers and victims. Instead,
a detective who arrived sometime later, when the exigent
circumstances no longer existed, found the test tube during a
search undertaken specifically for the purpose of finding
evidence. See id. at 21-22.

In denying the motion to suppress, the trial
judge made the following findings:

In this case Mr. McNair called the police
relative to a robbery. They go there. They’re trying to make
sure the place is safe. [The] . . . officer in question,
[Detective] Wells, was told the robbery had involved the
bedroom. He went to the bedroom and looked for clues. McNair
is in the house. In plain view [, Detective Wells] sees this
in the closet.

I don’t think this is the same pattern as your
cases. So I’ll overrule your motion.

The judge did not find that McNair consented to
a search. The trial judge found, instead, that the entry was made
"to make sure the place [was] safe." Under well
established rules, such a search has limited scope.

We should emphasize that . . . a protective
sweep, aimed at protecting the arresting officers, if justified
by the circumstances, is nevertheless not a full search of the
premises, but may extend only to a cursory inspection of those
spaces where a person may be found. The sweep lasts no longer
than is necessary to dispel the reasonable suspicion of danger
and in any event no longer than it takes to complete the arrest
and depart the premises.

Maryland v. Buie, 494 U.S. 325, 335-36
(1990) (footnote omitted).

When the officers initially searched the
residence for victims and the robbers, that warrantless search
was a protective activity that was "’strictly circumscribed
by the exigencies which justif[ied] its initiation.’" Mincey,
437 U.S. at 393. See also Arizona v. Hicks,
480 U.S. 321, 325 (1987) (noting that the officers "taking
action, unrelated to the objectives of the authorized intrusion,
which exposed to view concealed portions of the apartment or its
contents, did produce a new invasion of respondent’s privacy
unjustified by the exigent circumstance that validated the
entry"). The officers who initially made the protective
search found no robbery suspects and arranged for an ambulance to
remove from the apartment a person who needed assistance. Thus,
well before the detective arrived, the police officers had
assuaged their safety concerns during their initial search for
victims and robbers.

As in Thompson, the following
circumstance is applicable:

Petitioner’s attempt to get . . .
assistance does not evidence a diminished expectation of
privacy on [his] part. To be sure, this action would have
justified the authorities in seizing evidence under the
plain-view doctrine while they were in petitioner’s house to
offer . . . assistance. In addition, the same doctrine may
justify seizure of evidence obtained in the limited
"victim-or-suspect" search discussed in Mincey.
However, the evidence at issue here was not discovered in
plain view . . . during the "victim-or-suspect"
search that had been completed by the time [the detective] arrived.

469 U.S. at 22. The exigency clearly had ended
because "[a]ll the persons in [McNair’s] apartment had been
located before the investigating [detective] arrived there and
began [his] search." Mincey, 437 U.S. at 393.

In a recent per curiam decision, the Supreme
Court again held, on facts similar to this case, that the rule
announced in Mincey strictly limits the scope of a
warrantless "crime scene" search. See Flippo
v. West Virginia
, ___ U.S. ___ (No. 98-8770, Oct. 18, 1999).
The facts in Flippo are as follows:

One night in 1996, [Flippo] and his wife
were vacationing at a cabin in a state park. After [Flippo] called 911 to report that they had been attacked, the police
arrived to find [Flippo] waiting outside the cabin, with
injuries to his head and legs. After questioning him, an
officer entered the building and found the body of [Flippo’s] wife, with fatal head wounds. The officers closed off the
area, took [Flippo] to the hospital, and searched the
exterior and environs of the cabin for footprints or signs of
forced entry. When a police photographer arrived at about
5:30 a.m., the officers reentered the building and proceeded
to "process the crime scene."
. . . According to the trial court, "[a]t
the crime scene, the investigating officers found on a table
in Cabin 13, among other things, a briefcase, which they, in
the ordinary course of investigating a homicide, opened,
wherein they found and seized various photographs and

Id. at ___. Relying on Mincey and
Thompson, the Supreme Court reversed the trial judge’s
denial of Flippo’s motion to suppress. The Court again
"noted that police may make warrantless entries onto
premises if they reasonably believe a person is in need of
immediate aid and may make prompt warrantless searches of a
homicide scene for possible other victims or a killer on the
premises . . . but . . . rejected any general ‘murder scene
exception’ as ‘inconsistent with the Fourth and Fourteenth
Amendments.’" Flippo, ___ U.S. at ___.

On this appeal, the Commonwealth attempts to
justify the search of McNair’s apartment based on consent.
However, the trial judge made no finding that the search was
based on McNair’s consent. The principle "is well settled
that the burden is on the Commonwealth to establish an exception
to the warrant requirement." Walls v. Commonwealth, 2
Va. App. 639, 645, 347 S.E.2d 175, 178 (1986). "’Consent to
a search . . . must be unequivocal, specific and intelligently
given . . . and it is not lightly to be inferred.’" Elliotte
v. Commonwealth
, 7 Va. App. 234, 239, 372 S.E.2d 416, 419
(1988) (citation omitted). Thus, whenever the Commonwealth
alleges that a search was consensual, "[t]he [Commonwealth] . . . bears the burden of establishing consent and this burden is
heavier where the alleged consent is based on an
implication." Walls, 2 Va. App. at 645, 347 S.E.2d at
178. The Commonwealth’s "burden . . . is not satisfied by
showing a mere submission to a claim of lawful authority." Florida
v. Royer
, 460 U.S. 491, 497 (1983); see also Bumper
v. North Carolina
, 391 U.S. 543, 548-49 (1968).

The trial judge’s failure to find that the
search of McNair’s apartment was based on consent should dispose
of the Commonwealth’s claim. Although McNair informed the initial
responding officers that the robbers might still be in his
apartment, no evidence proved that he consented to a search.
Simply put, there was no consent.

Even if McNair may be deemed to have tacitly
consented to those officers entering his apartment for the
purpose of removing the robbers and securing the premises, a
proposition the majority assumes without the benefit of a finding
by the trial judge, to assume further that McNair consented to
having his residence searched a second time for clues, after the
search for the robbers and victims had terminated, would grant
the government power above and beyond that which is
constitutionally permitted. A search beyond the scope of the
consent given is an unreasonable search. See Bolda v.
, 15 Va. App. 315, 319, 423 S.E.2d 204, 207
(1992). Moreover, the Supreme Court has ruled that "[t]he
scope of a search is generally defined by its expressed
object." Florida v. Jimeno, 500 U.S. 248, 251 (1991).
By indicating his fear that the robbers might still be in his
apartment, McNair only sought to assist the police in their
search for the robbers. When the officers completed the search
and found no robbers, they had exhausted the scope of their
authority to search. "The government may not exceed the
boundaries of the consent, and any evidence gathered beyond those
boundaries must be excluded." United States v. Martinez,
949 F.2d 1117, 1119 (11th Cir. 1992).

The undisputed evidence proved the detective
did not ask for or receive McNair’s consent to search the
apartment for evidence. The detective asked the officers who had
first searched the apartment whether they had looked for
"clues to the robbery scene." The detective testified
that he "didn’t directly speak with [McNair] in regards to
the robbery." When he went upstairs to make a further
search, he "was just looking at the scene as a robbery
scene." Cf. Mincey, 437 U.S. at 395 (holding
that a warrantless search conducted pursuant to a crime
"scene exception . . . is inconsistent with the Fourth and
Fourteenth Amendments"). This evidence clearly established
that the detective’s search was unlawful because it was based on
neither lawfully obtained consent nor a search warrant. See
Thompson, 469 U.S. at 22-23. Thus, the search was an
unreasonable violation of McNair’s privacy interest.

Furthermore, no evidence proved that McNair was
aware that the detective intended to search the apartment.
Although the evidence proved the detective asked the other
officer whether the residence had been searched, the record fails
to indicate that McNair heard the question, knew that the
detective intended to go upstairs, or was aware that the
detective went upstairs. Thus, the evidence does not prove either
McNair’s knowledge of or acquiescence in the detective’s search.
Moreover, acquiescence, without more, is insufficient to prove
consent. See Crosby v. Commonwealth, 6 Va. App.
193, 199, 367 S.E.2d 730, 734 (1988). McNair never consented to a
search of his residence. Consent could only be found in this case
by assuming facts not proved by the evidence. Such an assumption
impermissibly relieves the Commonwealth of its heavy burden of
proving consent.

The trial judge’s decision to admit as evidence
the cocaine discovered by the police in McNair’s apartment was
error because the cocaine was found during a warrantless search
conducted without consent or exigency. Thus, I dissent from the
portion of the majority opinion affirming the trial judge’s
refusal to suppress the evidence.

I concur in the remainder of the opinion,
however, and in the judgment reversing the conviction and
dismissing the indictment.

Willis, J., with whom Bray, Bumgardner and
Lemons, JJ., join, concurring, in part, and dissenting, in part.

I agree with the majority that the test tube
containing cocaine was properly admitted into evidence. However,
I would further hold that the evidence sufficiently supported
McNair’s conviction.

The test tube containing cocaine was found in
McNair’s bedroom, an area personal to him and under his dominion
and control. The test tube was still moist, supporting the
conclusion that it had been used recently to prepare crack
cocaine. Detective Wells, who had participated in executing more
than one hundred search warrants, testified that items such as
the test tube were normally found in homes during the execution
of search warrants and that he had "never located [such an
item] on a person on the street." This testimony supports
the conclusion that paraphernalia such as the test tube usually
remains in the premises where they are used and that such items
are not normally transported from place to place. These
conclusions support the inference that the test tube belonged to
the premises, McNair’s apartment and bedroom, and thus to McNair
and discount the supposition that it was an item transported
abroad and abandoned by wandering robbers.

The alternative hypotheses of innocence
required to be excluded for circumstantial evidence to prove
sufficient must "flow from the evidence, and not from the
imagination of [defense] counsel." Fordham v.
, 13 Va. App. 235, 239, 409 S.E.2d 829, 831
(1991). Nothing in the evidence in this case, other than McNair’s
exculpatory conjecture, suggests importation, possession, use, or
abandonment of the test tube by the robbers.

I would affirm the judgment of the trial court.