                                COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Humphreys
Argued at Salem, Virginia


ROBERT BILL KREBS, JR.
                                                                 MEMORANDUM OPINION * BY
v.     Record No. 2400-10-3                                     JUDGE ROBERT J. HUMPHREYS
                                                                    DECEMBER 13, 2011
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                              Mosby G. Perrow, III, Judge

                 Carter B. Garrett (Garrett and Garrett, P.C., on briefs), for appellant.

                 Susan M. Harris, Assistant Attorney General (Kenneth T. Cuccinelli,
                 II, Attorney General, on briefs), for appellee.


       Robert Bill Krebs, Jr., (“Krebs”) appeals his convictions in the Circuit Court of the City

of Lynchburg (“trial court”) of one felony count of possession of a Schedule I or II controlled

substance, namely oxycodone, and one misdemeanor count of possession of marijuana. Krebs

alleges on appeal that the trial court erred when it denied his motion to suppress and exclude all

physical evidence and statements. 1 For the reasons that follow, we affirm the trial court in

denying the motion to suppress.


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
          Krebs also alleges on appeal that the trial court erred (1) when it found as a matter of
law that the odor of marijuana emanating from his residence established probable cause to search
the residence, (2) when it ruled that the officer’s warrantless entry into Krebs’ residence did not
violate his Fourth Amendment rights, (3) when it found his statement (that the pills were
Percocet and that he had a prescription) to be an “incriminating statement,” (4) when it found
this statement provided the officer with probable cause to conduct an invasive search of his
person, and (5) when it ruled that the invasive search was constitutionally permitted. However, a
full analysis of the trial court’s denial of Krebs’ motion to suppress encompasses these
assignments of error, and, thus, they are not directly addressed individually.
       Krebs argues on appeal that the trial court erred in denying his motion to suppress. In

support of his argument, Krebs assigns error to the trial court’s finding that the odor of marijuana

emanating from his residence established probable cause to search the residence. “On appeal of

the denial of a motion to suppress, we view the evidence in the light most favorable to the

Commonwealth.” McCracken v. Commonwealth, 39 Va. App. 254, 258, 572 S.E.2d 493, 495

(2002) (citing Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991)).

“The defendant has the burden to show that, considering the evidence in the light most favorable

to the Commonwealth, the circuit court’s denial of his suppression motion was reversible error.”

Commonwealth v. Robertson, 275 Va. 559, 564, 659 S.E.2d 321, 324 (2008).

       While 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), we 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.” Cherry v. Commonwealth, 44 Va. App. 347, 356, 605 S.E.2d 297, 301 (2004) (citing

Ornelas v. United States, 517 U.S. 690, 699 (1996)). Also, “[w]e evaluate the existence of

probable cause under a standard of objective reasonableness.” Id. at 357, 605 S.E.2d at 302.

That is, police officers “‘must be judged by their reaction to circumstances as they reasonably

appeared to trained law enforcement officers to exist’” at the time of the alleged Fourth

Amendment violation. Id. (quoting Keeter v. Commonwealth, 222 Va. 134, 141, 278 S.E.2d

841, 846 (1981)).

       It is well settled that “absent probable cause and exigent circumstances, warrantless

arrests in the home are prohibited by the Fourth Amendment.” Welsh v. Wisconsin, 466 U.S.

740, 741 (1984) (citing Payton v. New York, 445 U.S. 573 (1980)). “Probable cause exists when

the facts and circumstances within the officer’s knowledge, and of which he has reasonably

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trustworthy information, alone are sufficient to warrant a person of reasonable caution to believe

that an offense has been or is being committed.” Taylor v. Commonwealth, 222 Va. 816, 820,

284 S.E.2d 833, 836 (1981). Further, “[u]nder the Fourth Amendment, ‘probable cause may be

supported by the detection of distinctive odors . . . .’” Bunch v. Commonwealth, 51 Va. App.

491, 496, 658 S.E.2d 724, 726 (2008) (quoting United States v. Haynie, 637 F.2d 227, 234 (4th

Cir. 1980)). Thus, we have held that “the detection of the odor of burning marijuana emanating

from the open door of a residence, by a credible law enforcement officer who is familiar with its

smell, provides that officer with probable cause to believe contraband is present inside the

residence.” Cherry, 44 Va. App. at 357-58, 605 S.E.2d at 302.

       In this case, Officer Stump testified that he detected a distinct odor of marijuana coming

from Reed’s person as he left Krebs’ residence. He also detected a strong odor of marijuana

when Krebs answered the door to his residence. These observations, alone, provided Officer

Stump with probable cause to believe that an offense was being committed within Krebs’

residence. Thus, the trial court did not err in finding that probable cause existed.

       However, the existence of probable cause does not automatically grant a right of

immediate entry to police officers. Officer Stump entered Krebs’ residence without first

obtaining a warrant based on the probable cause. The Commonwealth contends that exigent

circumstances justified Officer Stump’s entry into Krebs’ residence or, alternatively, that the

evidence obtained as a result of the warrantless entry should nevertheless be admissible under the

independent source doctrine. Assuming, without deciding, that the smell of marijuana emanating

from the house standing alone was insufficient to supply exigent circumstances for an immediate




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entry, nevertheless, the evidence discovered as a result of the unwarranted entry is admissible

under the independent source doctrine and under the inevitable discovery doctrine. 2

                       It has been well established for more than 60 years that
               evidence is not to be excluded if the connection between the illegal
               police conduct and the discovery and seizure of the evidence is “so
               attenuated as to dissipate the taint.” It is not to be excluded, for
               example, if police had an “independent source” for discovery of
               the evidence.

Segura v. United States, 468 U.S. 796, 805 (1984) (quoting Nardone v. United States, 308 U.S.

338, 341 (1939)).

        In Segura, officers, armed with probable cause to make an arrest, impermissibly entered

Segura’s apartment without a warrant and absent exigent circumstances justifying the entry. Id.

at 804. The Supreme Court agreed that items discovered in plain view during the initial entry

were suppressible. However, the Supreme Court held that the evidence seized the following day

as the result of a valid search warrant was valid; the Supreme Court reasoned that

               [n]one of the information on which the warrant was secured was
               derived from or related in any way to the initial entry into
               petitioners’ apartment; the information came from sources wholly
               unconnected with the entry and was known to the agents well
               before the initial entry. No information obtained during the initial
               entry or occupation of the apartment was needed or used by the
               agents to secure the warrant. It is therefore beyond dispute that the
               information possessed by the agents before they entered the
               apartment constituted an independent source for the discovery and
               seizure of the evidence now challenged.

Id. at 814.




        2
          The trial court denied the motion to suppress by finding that Officer Stump’s detection
of the smell of marijuana supported a warrantless entry into Krebs’ residence. However, “[i]n
this case, as in all others, we seek to decide cases, ‘on the best and narrowest ground available’
from the record.” Kirby v. Commonwealth, 50 Va. App. 691, 698 n.2, 653 S.E.2d 600, 603 n.2
(2007) (quoting Miles v. Commonwealth, 274 Va. 1, 2, 645 S.E.2d 924, 925 (2007) (Kinser, J.,
concurring) (citations omitted)).

                                               -4-
       As discussed above, Officer Stump already had sufficient probable cause to secure a

search warrant for the premises before he ever entered the house. Although he entered Krebs’

residence without a warrant, Officer Stump did not see or observe any of the items eventually

recovered in the kitchen as a result of that initial intrusion. Instead, the items eventually

recovered in the kitchen were seized during the execution of the search warrant that was

obtained. Thus, “[i]t is therefore beyond dispute that the information possessed by the agents

before they entered the apartment constituted an independent source for the discovery and

seizure of the evidence now challenged.” Id. As such, the trial court did not err in refusing to

suppress the items recovered from the kitchen.

       However, the oxycodone pills were recovered when Officer Stump decided to perform a

pat down on Krebs during his initial intrusion into the residence. Since these pills were

discovered and seized prior to the subsequent warranted search, the independent source doctrine

does not apply to them. Even so, the inevitable discovery doctrine provides a valid basis to

affirm the trial court’s denial of Krebs’ motion to suppress these pills.

       The United States Supreme Court first adopted the inevitable discovery exception to the

exclusionary rule in Nix v. Williams, 467 U.S. 431 (1984). In Nix, the Court explained that,

               [i]t is clear that the cases implementing the exclusionary rule
               “begin with the premise that the challenged evidence is in some
               sense the product of illegal governmental activity.” Of course, this
               does not end the inquiry. If the prosecution can establish by a
               preponderance of the evidence that the information ultimately or
               inevitably would have been discovered by lawful means . . . then
               the deterrence rationale has so little basis that the evidence should
               be received. Anything less would reject logic, experience, and
               common sense.

Id. at 444 (quoting United States v. Crews, 445 U.S. 463, 471 (1980)).

                      The inevitable discovery rule provides an exception to the
               requirement that a search be supported by a warrant. The rule
               derives from the principle that fruits of an unlawful search are
               inadmissible at trial, if the challenged evidence “has been come at
                                                 -5-
               by exploitation of that illegality.” Conversely, if the evidence is
               obtained “by means sufficiently distinguishable to be purged of the
               primary taint,” excluding the evidence does not serve the deterrent
               purpose of the rule. The inevitable discovery rule is “an off-shoot
               of the independent source doctrine.”

Copeland v. Commonwealth, 42 Va. App. 424, 436-37, 592 S.E.2d 391, 397 (2004) (quoting

Wong Sun v. United States, 371 U.S. 471, 488 (1963); Wilkins v. Commonwealth, 37 Va. App.

465, 475, 559 S.E.2d 395, 399 (2002)).

       In Virginia,

               [t]o come within the exception, the Commonwealth must show:
               “(1) a reasonable probability that the evidence in question would
               have been discovered by lawful means but for the police
               misconduct, (2) that the leads making the discovery inevitable
               were possessed by the police at the time of the misconduct, and
               (3) that the police also prior to the misconduct were actively
               pursuing the alternative line of investigation.”

Id. at 437, 592 S.E.2d at 397 (quoting Walls v. Commonwealth, 2 Va. App. 639, 656, 347 S.E.2d

175, 185 (1986)).

       In this case, it is clear from the record that the oxycodone pills in Krebs’ pocket would

have inevitably been discovered through a search incident to his arrest following the execution of

the search warrant when contraband and other evidence of criminal activity were found within

his home. The first prong of the inevitable discovery test is met, because there was sufficient

probable cause to support a warrant to search Krebs’ residence. That search yielded “a plastic

bag with green plant material,” a black digital scale, and a marijuana grinder. After finding this

contraband, it is reasonable to conclude that Officer Stump would have arrested Krebs and

performed a standard search incident to arrest. “A warrantless search and seizure may be upheld,

however, if it is conducted incident to a lawful arrest.” Id. at 433, 592 S.E.2d at 395. During

this search, Officer Stump would have found the oxycodone pills. The second prong is also met

because the only evidence supplying probable cause necessary to making the discovery, namely


                                               -6-
the odor of marijuana, existed prior to the alleged unlawful entry. Finally, the third prong of the

test is met because the police were already actively pursuing a search based upon probable cause.

The first thing Officer Stump did was to explain that they were not under arrest, but that they

were being detained, because he had detected an odor of marijuana. See Segura, 468 U.S. at 810

(“securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of

evidence while a search warrant is being sought is not itself an unreasonable seizure of either the

dwelling or its contents”). He then read the group their Miranda rights and stated he was going

to get a search warrant for the house. Since all three prongs of the inevitable discovery doctrine

test are met, the evidence should not have been suppressed under the exclusionary rule.

       In conclusion, the trial court did not err in denying Krebs’ motion to suppress, because

the officer had probable cause based on his detection of the odor of marijuana, and, thus, an

independent source existed for the search of Krebs’ residence, and the evidence seized from his

person would have been inevitably found during a search incident to arrest. Therefore, we affirm

the judgment of the trial court.

                                                                                          Affirmed.




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