                       COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder and Humphreys
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                          MEMORANDUM OPINION * BY
v.   Record No. 2123-02-4               JUDGE ROBERT J. HUMPHREYS
                                             FEBRUARY 5, 2003
DOUGLAS EDWARD MAREK


         FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                  Rossie D. Alston, Jr., Judge

          Steven A. Witmer, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellant.

          C. Shawn Allen (William A. Boge, on brief),
          for appellee.


     The Commonwealth of Virginia appeals a decision of the trial

court granting Douglas Edward Marek's motion to suppress evidence

pertaining to his indictment for unlawful possession of oxycodone

(marketed under the trade name of Oxycontin), in violation of Code

§ 18.2-250, possession of cocaine, in violation of Code

§ 18.2-250, and simultaneous possession of a firearm and a

controlled substance, in violation of Code § 18.2-308.4.   The

Commonwealth contends the trial court erred in finding that police

violated Marek's Fourth Amendment rights by unlawfully extending


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
their search of Marek's residence beyond the scope of the search

warrant.   For the reasons that follow, we reverse the decision of

the trial court.

                               I.

     On the evening of December 7, 2001, Officer Howard Michael

Perry, of the City of Manassas Park police department, was

dispatched to the area of "Manassas Drive and Evans" to

investigate a report of "shots fired."   Perry and his fellow

officers immediately reported to the area and observed two

individuals walking together on Evans Street.   Officer Perry

approached the couple and asked if they had any information about

the shooting.    The couple advised Perry that they had seen "a

white male in the rear and side yard of 116 Manassas Drive"

"discharging his firearm into the ground."

     The officers then "converged on 116 Manassas Drive," and

"took up positions around the residence."    At first, the officers

attempted to have dispatch contact the residents by telephone "to

have them come outside."   However, no one inside the home answered

the telephone.   Upon continuing to observe the house, the officers

saw that a light was on in one of the upstairs bedrooms and could

see that a television was on in one of the downstairs rooms.      In

addition, one of the officers saw a fully dressed white male

looking out an upstairs window.

     At that point, Officer Perry approached the front door and

knocked.   A few moments later, a white male answered the door,

                                - 2 -
wearing only his underwear.    The man identified himself as

"Douglas Marek."    Officer Perry advised Marek why they were there

and asked Marek if he had "discharged a firearm in his backyard."

Marek stated that he had not.    Marek's girlfriend then approached

the door and Officer Perry again advised why the officers were

there.     Marek's girlfriend told Officer Perry that "there were no

guns in the residence at all."    At that time, Officer Perry asked

for consent to search the residence, but Marek refused, told Perry

he had nothing further to say, and closed the door.

       As the officers began to leave the residence, Officer Perry

observed a shell casing on the ground near the driveway.    Perry

picked it up and saw that it was a .380 caliber shell casing. 1

Perry then knocked on Marek's door once again.    However, Marek

refused to answer the door.    Marek told the officers, through the

closed door, that he had nothing to say and that he was going to

bed.

       While other officers stayed at the residence to "preserve the

scene," Officer Perry went to the magistrate and obtained an

arrest warrant for Marek for "discharging a firearm within the

city limits."    He also obtained a search warrant to search Marek's

home for "a .380 caliber handgun."




       1
       Officer Perry subsequently found two additional .380 shell
casings, located on the ground within two feet from where he
found the first one.

                                 - 3 -
      When Officer Perry returned to the residence, he again

knocked on the front door.   Marek answered, and Perry advised him

that he had a search warrant authorizing a search of the

"residence for the firearm and a warrant for [Marek's] arrest."

Marek let the officers inside, "without incident," and Officer

Perry asked him "where the gun was at."   Marek told Perry that the

gun was "upstairs at the top of the stairs on the landing."    Marek

then "opened the door of the staircase and pointed to a blue box

at the top of the stairs."

      At that point, Officer Perry and his partner went upstairs

and found the .380 firearm where Marek had advised that it would

be.   "Once [they] were at the top of the stairs and [they] had the

gun in possession," Officer Perry's partner noticed a box of .380

ammunition on a gun shelf, holding "numerous rifles."   The

officers then walked to the gun shelf and seized the ammunition.

As they were standing at the shelf, Officer Perry observed "what

appeared to be a glass smoking device or pipe on an entertainment

center," as well as several bottles of Oxycontin, in a nearby

bedroom.   The pipe appeared to have "burnt residue around both

ends of it."   Based upon his experience as a police officer, Perry

believed the item to be a "crack pipe."

      Officer Perry then retrieved the pipe and left the residence

to obtain an additional search warrant "for the narcotics

paraphernalia."   After executing the second search warrant,

officers obtained approximately 30 empty bottles of Oxycontin and

                               - 4 -
several full bottles of Oxycontin.      Marek, who had already been

arrested on the charge of "discharging a firearm within the city

limits" was then charged with the remaining counts at issue on

this appeal. 2   Marek subsequently made incriminating statements to

police regarding these offenses.

     Prior to trial, Marek filed a motion to suppress the evidence

against him contending, in part, that the officers "exceeded the

scope of the first search warrant," by continuing their search

after they had obtained the .380 caliber handgun, which was the

sole subject of the first search warrant.     After hearing argument

on the motion, the trial court issued a written letter opinion

excluding "evidence derived from the officers' search beyond the

scope of the first warrant," finding:

           There is little question that if the officer
           was lawfully in a position to view the drug
           paraphernalia, the items perceived would
           qualify as contraband. Therefore the
           inquiry must focus on whether the officer
           was lawfully in position to view these
           items.

           *       *      *      *        *      *       *




     2
        The record on appeal reveals that, in circuit court,
Marek was subject to only three charges. Specifically, unlawful
possession of a controlled substance, simultaneous possession of
a firearm and a controlled substance and possession of cocaine.
However, the record demonstrates that, initially, Marek was also
subject to additional firearm and drug charges, including the
charge for discharging a firearm within the city limits of
Manassas. The record is silent as to the disposition of the
additional charges and because the disposition is not pertinent
to this appeal, we do not consider them further.

                                - 5 -
                 . . . The officers in this instance had
            discovered the subject of their search
            warrant. That first warrant was limited to
            a search for "a .380 caliber handgun." The
            warrant did not authorize a search for
            additional guns or ammunition. While the
            gun rack may have been in plain view of the
            officers from their lawful position at the
            top of the stairs, the drug paraphernalia
            that formed the basis of the second warrant
            was not.

            *      *      *      *      *       *      *

                 . . . To ensure that generalized
            searches do not ensue, searches must be
            limited to the scope specifically identified
            in the warrant. Since the warrant here
            specifically limited the search to "a .380
            caliber handgun," the subsequent search for
            ammunition was invalid. As a result, the
            officer was not lawfully in the position
            from which he viewed the crack pipe and
            other drug paraphernalia. Those items are
            derived from an illegal search and will be
            excluded from evidence presented at trial

                                II.

      On appeal, the Commonwealth contends the trial court erred in

excluding the evidence.    Specifically, the Commonwealth argues

that the officers were not required to terminate the execution of

the first warrant "simply because they discovered a single .380

handgun," but were entitled, pursuant to the search warrant, to

search the home in order to find any additional .380 caliber

handguns which might have been used in the commission of the

crime. 3   In the alternative, the Commonwealth contends the



      3
       The validity of the warrant is not at issue in this
appeal.

                                - 6 -
discovery and seizure of the .380 ammunition, as well as the crack

pipe, were lawful under the "plain view exception" to the search

warrant requirement. 4   While we disagree with the Commonwealth's

primary argument, we agree with the Commonwealth's alternative

argument.   In reviewing a trial court's ruling on a motion to

suppress, "[t]his Court is '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.'"   Davis v. Commonwealth, 37 Va. App. 421, 429, 559

S.E.2d 374, 378 (2002) (quoting Neal v. Commonwealth, 27 Va. App.

233, 237, 498 S.E.2d 422, 424 (1998)).    However, we are bound to

review de novo the ultimate questions of reasonable suspicion and

probable cause.   See Ornelas v. United States, 517 U.S. 690, 699

(1996).   Furthermore, the burden is upon the Commonwealth here to

show, considering the evidence in a light most favorable to Marek,

and granting to him all inferences fairly deducible therefrom,

that the court's judgment constituted reversible error.    Reynolds

v. Commonwealth, 9 Va. App. 430, 436, 388 S.E.2d 659, 664 (1990).


     4
       The Commonwealth also contends that, pursuant to Maryland
v. Buie, 494 U.S. 325, 333 (1990), the officers could have
lawfully conducted a "protective sweep" of the premises and that
the crack pipe would have been properly discovered within plain
view under such circumstances. However, the Commonwealth
conceded during oral argument that this argument was not raised
below. Accordingly, we do not address the argument as it was
not properly preserved for purposes of this appeal. See Rule
5A:18.

                                - 7 -
     We have long recognized that, pursuant to the Fourth

Amendment, "[t]he permissible scope of a search is limited by

the terms of the warrant pursuant to which it is conducted."

Kearney v. Commonwealth, 4 Va. App. 202, 204, 355 S.E.2d 897,

898 (1987) (citing Walter v. United States, 447 U.S. 649, 656

(1980) (explaining that "because 'indiscriminate searches and

seizures conducted under the authority of 'general warrants'

were the immediate evils that motivated the framing and adoption

of the Fourth Amendment,' Payton v. New York, 445 U.S. 573, 583

[(1980)], that Amendment requires that the scope of every

authorized search be particularly described")).

     In the case at bar, it is undisputed that the first search

warrant obtained by Officer Perry authorized only a search for "a

.380 caliber handgun."   (Emphasis added.)   The warrant authorized

nothing further.   We find it significant that the plain terms of

the warrant here limited the search to "a" gun.    The word "a" is

typically used as a "function word before most singular nouns,"

and generally suggests a "limitation in number."    Webster's Third

New International Dictionary 1 (1993).   While the evidence here

may have supported a more broadly worded warrant, such as one

covering additional items related to the offense at issue (like

other .380 caliber weapons and ammunition) the issuing magistrate

and the officers obtaining the warrant elected instead, to phrase

the warrant narrowly, limiting the authorized search to only "a

.380 caliber handgun."

                               - 8 -
     Thus, once Officer Perry retrieved "a .380 caliber handgun,"

his search yielded the exact object of his investigation, and more

importantly, the exact object for which he was authorized to

search.   Accordingly, the trial court properly determined that, at

that time, Officer Perry's authority to search pursuant to the

warrant ceased.   Indeed, any further search based upon the first

warrant would have been unreasonable and unconstitutional as

outside the scope of the warrant, unless such additional search

was supported by a recognized exception to the warrant

requirement.   See Horton v. California, 496 U.S. 128, 140 (1990)

("If the scope of the search exceeds that permitted by the terms

of a validly issued warrant or the character of the relevant

exception from the warrant requirement, the subsequent seizure is

unconstitutional without more.").

     As the Commonwealth argues, the "plain view doctrine" is such

an exception to the general rule that warrantless searches and

seizures are presumptively unreasonable.   Harris v. Commonwealth,

241 Va. 146, 152-53, 400 S.E.2d 191, 195 (1991).

           The Supreme Court, in [Horton], stated the
           predicates which must be established if the
           government seeks to avail itself of the
           plain view exception to the Fourth
           Amendment:

           "It is . . . an essential predicate to any
           valid warrantless seizure of incriminating
           evidence that the officer did not violate
           the Fourth Amendment in arriving at the
           place from which the evidence could be
           plainly viewed. There are, moreover, two
           additional conditions that must be satisfied

                               - 9 -
             to justify the warrantless seizure. First,
             not only must the item be in plain view, its
             incriminating character must also be
             'immediately apparent.' Second, not only
             must the officer be lawfully located in a
             place from which the object can be plainly
             seen, but he or she must also have a lawful
             right of access to the object itself."

             Id. at 2308 (citations and footnote
             omitted); see also Blair v. Commonwealth,
             225 Va. 483, 489, 303 S.E.2d 881, 886
             (1983). Additionally, the police must have
             probable cause to believe that the item in
             question is evidence of a crime or is
             contraband. Arizona v. Hicks, 480 U.S. 321,
             326 (1987); see also Delong v. Commonwealth,
             234 Va. 357, 365, 362 S.E.2d 669, 673
             (1987), cert. denied, 485 U.S. 929 (1988)
             (citing Hicks).

Id.   "The plain view doctrine may not therefore be used only as

a pretext 'to extend a general exploratory search from one

object to another until something incriminating at last

emerges.'"     Cantrell v. Commonwealth, 7 Va. App. 269, 283, 373

S.E.2d 328, 334 (1988) (quoting Coolidge [v. New Hampshire], 403

U.S. [443,] 466 [(1971))].     Indeed, "[g]eneral warrants are

proscribed by both the Fourth Amendment, Andresen v. Maryland,

427 U.S. 463, 480 (1976), and Code § 19.2-54. 5    "The purpose of



      5
          Code § 19.2-54 provides as follows, in relevant part:
             No search warrant shall be issued until
             there is filed with the officer authorized
             to issue the same an affidavit of some
             person reasonably describing the place,
             thing, or person to be searched, the things
             or persons to be searched for thereunder,
             alleging briefly material facts,
             constituting the probable cause for the
             issuance of such warrant and alleging

                                - 10 -
this proscription is to limit the discretion that police

officers may exercise when executing a search warrant and to

preclude them from engaging in a 'fishing expedition' or an

'exploratory rummaging in a person's belongings.'"   Morke v.

Commonwealth, 14 Va. App. 496, 500, 419 S.E.2d 410, 413 (1992)

(quoting Coolidge, 403 U.S. at 467).

     Thus, the issue to be determined in this context is whether

the trial court properly found that Officer Perry's discovery of

the crack pipe and prescription drugs, and subsequent seizure of

the crack pipe, fell outside the purview of the plain view

exception to the warrant requirement.   We find no fault with the

trial court's determination that the crack pipe "would qualify

as contraband."   Nevertheless, as the trial court recognized,

the plain view analysis requires an initial determination that

Officer Perry was in a "lawful position" to view the crack pipe

when he first observed it.   Cantrell, 7 Va. App. at 282 n.1, 373

S.E.2d at 334 n.1 (noting that in Texas v. Brown, 460 U.S. 730

(1983) (plurality), then Justice Rehnquist stated that "'[p]lain


          substantially the offense in relation to
          which such search is to be made and that the
          object, thing, or person searched for
          constitutes evidence of the commission of
          such offense. . . . No such warrant shall
          be issued on an affidavit omitting such
          essentials, and no general warrant for the
          search of a house, place, compartment,
          vehicle or baggage shall be issued. The term
          “affidavit” as used in this section, means
          statements made under oath or affirmation
          and preserved verbatim.

                              - 11 -
view' is perhaps better understood . . . not as an independent

'exception' to the Warrant Clause, but simply as an extension of

whatever the prior justification for an officer's 'access to an

object' may be").   We find that he was.

     In reaching this determination, we note that Marek concedes

that when Officer Perry and his partner seized the gun, they

were in a lawful position to view other items which, if they

constituted either contraband or evidence of a crime, fell

within the purview of the plain view exception.   We also note

that the parties do not dispute the trial court's finding that

the box of ammunition was within the officers' plain view from

their vantage point in obtaining the gun.

     Thus, the only remaining issue is a determination of

whether there existed probable cause that the box of .380

ammunition was contraband or evidence of criminal activity.

Given the totality of the information available to the officers

and the information they supplied in the affidavit for the

search warrant, we hold that probable cause existed as a matter

of law that the box of ammunition was evidence of the crime

being investigated– firing a gun within the city limits – and

therefore the box of ammunition was properly discovered and

seized pursuant to the plain view exception to the warrant

requirement.   Indeed, we have recognized that:




                              - 12 -
          [P]robable cause is a flexible, common sense
          standard. It merely requires that the facts
          available to the officer would "warrant a
          man of reasonable caution in the belief,"
          that certain items may be contraband or
          stolen property or useful as evidence of a
          crime; it does not demand any showing that
          such a belief be correct or more likely true
          than false. A "practical, non-technical"
          probability that incriminating evidence is
          involved is all that is required . . . .

          The process does not deal with hard
          certainties, but with probabilities. Long
          before the law of probabilities was
          articulated as such, practical people
          formulated certain common-sense conclusions
          about human behavior; jurors as factfinders
          are permitted to do the same — and so are
          law enforcement officers. Finally, the
          evidence thus collected must be seen and
          weighed not in terms of library analysis by
          scholars, but as understood by those versed
          in the field of law enforcement.

Ruffin v. Commonwealth, 13 Va. App. 206, 209-10, 409 S.E.2d 177,

179 (1991) (quoting Brown, 460 U.S. at 742).   Here, the

ammunition box was "not a facially innocent vessel" as it

clearly purported to contain evidence which was directly related

to the specific crime the officers were investigating.     Id. at

211, 409 S.E.2d at 180.   Accordingly, the circumstances

surrounding the discovery of the box, the nature of the search

warrant, and the items found at the scene indicating that a .380

caliber handgun had been fired, gave Officer Perry probable

cause to believe that the box was evidence of a crime, and

authorized its seizure.




                              - 13 -
     Because we find that Officer Perry and his partner lawfully

discovered and seized the box of ammunition, as stated above, we

thus find that Officer Perry was in a lawful position from that

location to view the crack pipe and the bottles of prescription

drugs.   Therefore, he likewise lawfully seized the crack pipe,

upon which the second search warrant was based.

     For these reasons, we reverse the decision of the trial court

suppressing evidence obtained beyond the scope of the first search

warrant, as we find the items were properly seized pursuant to the

plain view exception to the Fourth Amendment search warrant

requirement.

                                                         Reversed.




                               - 14 -
