                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Richmond, Virginia


GERALD CHRISTOPHER CARTER
                                          MEMORANDUM OPINION * BY
v.   Record No. 0418-02-2                JUDGE SAM W. COLEMAN III
                                               MAY 20, 2003
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                Robert W. Duling, Judge Designate

          Gregory W. Franklin, Assistant Public
          Defender, for appellant.

          John H. McLees, Senior Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Gerald C. Carter appeals his bench trial conviction for

possession of cocaine.   He argues that the trial court erred by

denying his motion to suppress the evidence obtained during a

warrantless search of his residence.   He contends (1) the initial

search exceeded the scope of the consent to enter the residence,

(2) the police improperly seized evidence during a protective

sweep of the home, and (3) the consent by his mother to search the

residence was not voluntarily given.   For the reasons that follow,

we agree that the police improperly seized the contraband and we

reverse Carter's conviction.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                             Background

     "In reviewing a trial court's denial of a motion to

suppress, 'the burden is upon the defendant to show that the

ruling, when the evidence is considered most favorably to the

Commonwealth, constituted reversible error.'"     McGee v.

Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)

(en banc) (citation omitted).    "[W]e review de novo the trial

court's application of defined legal standards such as probable

cause and reasonable suspicion to the particular facts of the

case."   Hayes v. Commonwealth, 29 Va. App. 647, 652, 514 S.E.2d

357, 359 (1999) (citation omitted).     "In performing such

analysis, we are bound by the trial court's findings of

historical fact unless 'plainly wrong' or without evidence to

support them and we give due weight to the inferences drawn from

those facts by resident judges and local law enforcement

officers."    McGee, 25 Va. App. at 198, 487 S.E.2d at 261

(quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)).

     On June 7, 2001, Detective Fred Bates and two other police

officers responded to a complaint of illegal drug activity at

Carter's address.   Gerald Carter shared the house with his

mother and girlfriend.   Bates and Detective Graves knocked on

the front door, and Detective Godfrey went to the back of the

house.   Gerald Carter and his mother, Antonia Carter, answered

the door.    The detectives identified themselves, displayed their



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badges, and asked if they could enter to discuss the drug

complaint.   Antonia Carter invited the officers inside.

     Immediately upon entering the residence, Bates observed

Gerald Carter throw an object into a bedroom located directly

adjacent to the front entryway.   Bates testified he could not

identify the object but he heard it land in the bedroom and

stated it sounded "metallic."   Concerned that the object Carter

threw might have been a gun, Bates stepped into the bedroom to

investigate.

     Bates saw three people in the bedroom.     He quickly scanned

the room for weapons and turned to leave.    He then saw a large

spoon lying face-up on a table with a brown residue clearly

visible on the spoon.    Bates returned to the living room and

asked Antonia Carter for permission to search the residence.

She began crying, and Carter attempted to persuade her to refuse

Bates' request to search the house.     Antonia Carter asked Bates

what options she had, and Bates explained if she consented to

the search the police would leave her home quickly.    At that

point, Bates returned to the bedroom, retrieved the spoon,

showed it to Antonia Carter, and explained that it appeared to

be drug paraphernalia.   He also stated he would attempt to

obtain a search warrant if she did not give the officers

permission to search.    Bates informed Antonia Carter that the

officers may have to handcuff some of the people in the



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residence while they awaited the search warrant.      Antonia Carter

eventually consented to the search.       The detectives discovered

various items of drug paraphernalia inside the residence.        The

spoon contained cocaine residue.    Gerald Carter was arrested and

charged with possessing cocaine.

                               Analysis

                           Protective Search

        Gerald Carter argues the officers unlawfully entered the

bedroom after his mother invited them into the house.       He

concedes the officers were lawfully in the residence.

             [P]olice officers may, whenever they possess
             an articulable and objectively reasonable
             belief that a suspect is presently or
             potentially dangerous, conduct a protective
             search of the area within the suspect's
             immediate control.

Servis v. Commonwealth, 6 Va. App. 507, 519, 371 S.E.2d 156, 162

(1988).    We have held that a protective sweep is permissible

even where the suspect was not under arrest, as long as the

officers' entry into the residence was consensual.       See Conway

v. Commonwealth, 12 Va. App. 711, 720, 407 S.E.2d 310, 314

(1991) (en banc).     As in Conway, the officers in this case were

in the residence by virtue of the homeowner's consent.

        Bates testified that immediately upon the officers entering

the residence, Carter threw a metallic object into an adjacent

room.    Bates heard the object land and investigated based upon a




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concern for officer safety.    When Bates entered the room he was

surprised to find three people there, and he quickly glanced

around the room looking for a firearm.     Bates provided a

reasonable, articulable basis for conducting a cursory

protective sweep of the area accessible to and in close

proximity to Gerald Carter.

                              Plain View

     For the plain view "exception to the warrant requirement to

apply, the record must show (1) a prior justification for the

intrusion . . . and [(2)] immediate knowledge by the official

that the evidence he is observing is probably contraband."

Jones v. Commonwealth, 29 Va. App. 363, 369, 512 S.E.2d 165, 168

(1999).   As explained above, the police were lawfully in the

residence pursuant to Antonia Carter's permission.    Bates

performed a permissible protective sweep of the area and was

lawfully in the bedroom when he saw the spoon.

     However, at trial, Bates testified only that he observed

the spoon on a table and that "[a]s soon as [he] saw that spoon,

[he] could see some type of what [he] believed to be brown

residue on the spoon."   He left the room and spoke with Carter's

mother in an attempt to persuade her to consent to a full search

of the house.   He then returned to the room and asked one of the

occupants to give him the spoon.    He turned it over and saw burn




                                - 5 -
marks on the back "where [he] could tell it was probably used

for drug activity . . . ."

     Bates never testified that he immediately recognized the

spoon as drug paraphernalia when he saw it during the protective

sweep.   When he entered the room looking for a weapon, Bates saw

a spoon with some type of residue on it but he at no time

indicated that what he observed led him to believe that the

spoon contained drug residue rather than some other substance.

Instead, only upon further investigation did Bates indicate that

he determined the spoon was likely used for the preparation of

illegal drugs and contained drug residue.    When Bates first

observed the spoon during the protective sweep of the bedroom,

he saw only that it contained a brown residue.    When he seized

the spoon and examined it more closely he observed burn marks

which gave him reason to believe that the residue was illicit

drugs.

     "[T]he standard for invoking the plain view doctrine is

probable cause.   Thus, to 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."    Conway, 12 Va. App. at 718, 407

S.E.2d at 314.    The evidence established that Bates saw nothing

incriminating about the residue-coated spoon until after he

seized the object and inspected it.     See Arizona v. Hicks, 480



                                - 6 -
U.S. 321, 326 (1987) (holding that stolen stereo not properly

seized under plain view doctrine because officers had to move

stereo to see serial numbers which allowed them to conclude item

was stolen).   Thus, we hold as a matter of law that the plain

view exception to the warrant requirement does not apply.

Although Bates was lawfully in the bedroom for a protective

weapons sweep when he saw the spoon, he did not possess probable

cause at the time to believe it contained illegal drugs thereby

permitting him to seize it.   Bates impermissibly returned to the

spoon to seize and inspect it without a warrant.   Thus, the

trial court erred by denying Carter's motion to suppress the

spoon and cocaine residue and the evidence subsequently derived

from its seizure and the search that followed.

                              Consent

     The Commonwealth does not rely upon consent to enter the

residence as the legal basis for entering the bedroom and the

search which revealed the spoon.   As to Antoina Carter's

subsequent consent to search her house, she gave such consent

only after Bates illegally seized the spoon and contraband.

Because the dispositive issue here is whether the police had

lawfully seized the spoon, we need not address Carter's

contention that his mother's subsequent consent was not

voluntarily given.




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     For the reasons stated above and because the evidence

suppressed is essential to the conviction, we reverse Carter's

conviction and dismiss the indictment against him.

                                          Reversed and dismissed.




                              - 8 -
Benton, J., concurring, in part, and in the judgment reversing
 the conviction.

     For the reasons I have previously stated in Conway v.

Commonwealth, 12 Va. App. 711, 723-27, 407 S.E.2d 310, 316-19

(1991) (Benton, J., concurring and dissenting), and Servis v.

Commonwealth, 6 Va. App. 507, 525-34, 371 S.E.2d 156, 165-74

(1988) (Benton, J., dissenting), I would hold that the police

may not make a "protective sweep" of a person's residence after

a warrantless entry to the residence except after, and while

making an arrest.   In addition, even under those circumstances,

the record must establish specific and articulable facts

indicating that the area to be swept harbors a person posing a

danger to the arresting officers.      See Maryland v. Buie, 494

U.S. 325, 335-37 (1990).   Thus, I concur in the parts of the

opinion styled Background and Consent, in the holding that the

officer impermissibly inspected and seized the spoon without a

warrant, and in the judgment reversing the conviction and

dismissing the indictment.   See Arizona v. Hicks, 480 U.S. 321

(1987); Coolidge v. New Hampshire, 403 U.S. 443, 474-77 (1981).




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