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Brown v. Commonwealth

Court of Appeals of Virginia

August 1, 2017

LATRON DUPREE BROWN
v.
COMMONWEALTH OF VIRGINIA

         FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY Cheryl V. Higgins, Judge[1]

          Samantha E. Freed (Lepold & Freed, PLLC, on brief), for appellant.

          J. Christian Obenshain, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Humphreys, Decker, and O'Brien Argued at Richmond, Virginia.

          OPINION

          ROBERT J. HUMPHREYS JUDGE.

         Lamont Dupree Brown ("Brown") entered conditional pleas of guilty on multiple charges stemming from his distribution of cocaine, and now appeals the decisions of the Circuit Court for Albemarle County (the "circuit court") denying his motion to suppress, on January 30, 2015, and denying his motion for a continuance and the appointment of new counsel on June 23, 2015. Brown asserts that the circuit court erred (1) in denying his motion to suppress because the evidence obtained was the fruit of an illegal protective sweep that occurred before a search of his residence and (2) erred in refusing to appoint a fifth counsel in violation of his Sixth Amendment right to counsel.

         I. BACKGROUND

         For ninety days between September and December of 2013, detectives were working with a confidential informant (the "CI") to observe Brown; during that time, the CI purchased cocaine from Brown on at least three occasions. Throughout these observations, Brown was seen coming to and leaving from a particular apartment both before and after the controlled drug buys. Detectives verified that Brown listed that apartment as his residence for his probation and previous arrests.

         On December 19, 2013, Brown was arrested on multiple charges related to his distribution of cocaine. Detective Seitz, one of the detectives who had been investigating Brown over the three-month period, had completed "three-quarters of a search warrant" affidavit for the apartment before Brown's arrest, and finished drafting the search warrant and affidavit after he "saw what was obtained off [Brown]" from the arrest. Shortly thereafter, Detective Seitz obtained a warrant to search Brown's apartment.

         While Brown was arrested at the intersection of Hydraulic Road and Emmett Street, Detectives Lucas and McKay were watching his apartment. Once Detectives Lucas and McKay heard that Brown had been arrested, they conducted what they deemed to be a "protective sweep" of the apartment to ensure no one was inside who could "destroy evidence . . . or possibly . . . lay[] in wait for [them]." Further, Detective McKay testified that Brown was a suspect in a recent shooting, and the detectives were concerned for their safety while executing a search warrant. The protective sweep was a "very quick search" in which "no people were found." The detectives neither searched for nor found contraband or weapons during the protective sweep, and neither Detective McKay nor Detective Lucas spoke with Detective Seitz between the sweep and the time the search warrant was obtained. Afterwards, the detectives stood guard of the apartment, awaiting the search warrant.

         Thereafter, while searching the apartment pursuant to the search warrant, detectives found a total of thirty-four "knotted baggies of cocaine, " a knife used for cutting cocaine, a gun and cartridges, and multiple documents belonging to Brown.

         Brown was initially indicted on three drug-related charges on February 3, 2014, and the circuit court appointed Michael Hemenway as counsel. On March 27, 2014, Brown sent a letter to the circuit court requesting the appointment of new counsel because he felt that Hemenway was not "retrieving the proper paperwork and information [Brown] need[ed] to fully understand" the case, and thus felt he would not be "represented fairly." Hemenway further told the circuit court that the "attorney/client relationship is basically dissolved." The circuit court granted Brown's request and appointed William Tanner as counsel.

         Less than two months later, on May 15, 2014, Tanner told the circuit court that Brown "has demanded that [Tanner] move to withdraw" and that Tanner joined in that motion because their relationship was "strained at best." Tanner represented that Brown had "various and sundry issues" with the way Tanner was representing him. The circuit court agreed to appoint another attorney, but noted that it found "nothing wrong with what Mr. Tanner has done to try to help Mr. Brown" and that Tanner was "incapable of going forward because of the lack of cooperation, which I find to be, at this point, unreasonable by Mr. Brown." Thus, the circuit court appointed Stephanie Commander as new counsel, but noted its concern by asking Brown, "[I]f I appoint a third attorney, am I going to be here on a fourth?" Brown responded, "No."

         Brown was indicted on August 4, 2014 on six more charges related to his drug offenses during the three-month observation period in 2013. Brown's jury trial was set for December 16, 2014. However, on December 2, 2014, Commander filed a motion to continue the case because Brown was "in conflicts with counsel over the handling of the case and has at times expressed desire for new counsel or to represent himself, " that "counsel agrees that there has been a conflict between the Defendant and counsel[, ] but not ...


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