THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Frederick B.
Lowe, Judge Designate 
A. Mussoni, Assistant Public Defender, for appellant.
Anne Lloyd, Assistant Attorney General (Mark R. Herring,
Attorney General; Elizabeth Kiernan Fitzgerald, Assistant
Attorney General, on brief), for appellee.
Present: Judges Huff, [*] AtLee and Senior Judge Frank
RICHARD Y. ATLEE, JR. JUDGE
Christian Carlson appeals his convictions for manufacturing
marijuana in violation of Code § 18.2-248.1 and
misdemeanor obstruction of justice for using a police radio
during the commission of a crime in violation of Code §
18.2-462.1. Carlson argues that the trial court erred in
denying his motion to suppress evidence obtained as a result
of an unlawful search of his residence. He also argues that
the evidence was insufficient to convict him of manufacturing
marijuana. We agree the trial court should have granted
Carlson's motion to suppress, and we now reverse the
Matt Elliot and Aaron Gosnell responded to a call at a
trailer park on the 2700 block of Ike Street in Chesapeake.
When the officers parked and got out of their vehicles at the
scene, they immediately noticed a strong odor of marijuana.
The officers responded to the original, unrelated call and
then attempted to locate the source of the marijuana smell.
The officers walked around each trailer, sniffing at the
doors and windows, in an attempt to localize the odor to a
particular trailer. Each trailer was situated approximately
ten to fifteen feet apart. As the officers walked towards
trailer 65, Carlson's residence, the officers noticed
that the smell was getting stronger.
trailer is located at a T-intersection. The officers walked
around a van parked at the curb in front of the trailer and
onto Carlson's property. Carlson's trailer is set
twenty-two feet from the curb, and the front door is
thirty-six feet from the curb. As they had done at each of
the other trailers, the officers sniffed the doors and
windows. After sniffing the doors and windows, "it
became obvious" to the officers that the odor was coming
from Carlson's trailer.
officers notified their sergeant and then contacted Vice and
Narcotics. The sergeant ordered the officers to "make
contact" with the trailer. Accordingly, the officers
knocked on the door and announced themselves as police
officers. No one answered the door, but the officers heard a
radio or television turn off. At some point, the blinds
flickered up and down. The officers secured the premises and
waited for backup to arrive.
response to the officers' call, Detective Cusumano from
Vice and Narcotics arrived approximately one hour later. At
trial, Detective Cusumano testified that he was called to
assist with a trailer that smelled of marijuana. When he
arrived, he saw other police units on scene. The detective
walked up to the main entrance of Carlson's trailer and
smelled raw marijuana emanating from the edges of the door.
He did not go anywhere else on the property before he left to
obtain a warrant. The affidavit attached to the warrant
indicated that uniform patrol was on scene, but contained
only the detective's observations.
the police executed the search warrant, Carlson refused to
come out of the trailer and a lengthy standoff ensued.
Eventually, a SWAT team made entry, and Carlson ran out the
back of the trailer before ultimately being arrested.
the trailer, law enforcement discovered a grow operation. The
trailer was outfitted with ventilation, heat lamps, and other
equipment necessary to grow marijuana. Officers found
approximately 176 marijuana plants at various stages of
growth and a garbage bag of marijuana apparently trimmed off
of the plants. In the bathroom, officers discovered marijuana
leaves in and around the toilet and an envelope full of cash
in various denominations. Elsewhere in the trailer, officers
discovered an AK-47, various boxes of ammunition, a digital
scale, and a device used to smoke marijuana. Additionally,
officers discovered a police scanner that was tuned to the
same channel the police were using to communicate during the
investigation, and the officers inside could hear radio
communication from officers still outside.
filed a pretrial motion to suppress the evidence from the
trailer arguing that the officers' initial entry onto his
property was unlawful. Carlson did not challenge the warrant
itself, rather he argued that Detective Cusumano's
presence on the property was a direct result of the
officers' unlawful search. At the suppression hearing,
both Officers Elliot and Gosnell testified and openly
admitted to sniffing around the windows and doors of the
trailers, including Carlson's. Officer Elliot testified
that that when they "got to 65" they could tell the
marijuana odor was coming from that particular trailer. When
asked if "got to 65" meant "sniffing the doors
and windows" of trailer 65, Officer Elliot said yes. He
also agreed that it was when they "walked up to the
door" that they "were able to centralize the
odor." Officer Gosnell testified that the marijuana
smell got stronger as they walked towards trailer 65,
"but [they] had still not centralized it to that trailer
itself." Further, Gosnell testified it was "while
in the curtilage of the property . . . it became increasingly
strong," and only then were they "beginning to
believe that this may be it." The trial court requested
supplemental briefing on the issue.
argued that the search was unlawful and that the search
pursuant to the warrant, based upon Detective Cusumano's
observations, was not sufficiently attenuated from the
unlawful search. Carlson also argued that Detective Cusumano
was not an independent source. The Commonwealth responded
that the officers' search was lawful, Detective Cusumano
was an independent source, and, regardless, Carlson failed to
challenge the warrant.
second hearing on the issue, the trial court determined the
officers had "overstepped their boundary" and that
the search was unlawful. After further argument on the
independent source doctrine, the trial court determined it
was a "close call" but overruled the motion because
"[w]e did have a warrant." The trial court denied
Carlson's motion to reconsider.
trial, the Commonwealth's expert, Detective Barlow,
testified that the amount of marijuana found was inconsistent
with personal use. He estimated that the potential yield
(under optimal conditions) was forty-four pounds of
marijuana. Even if not all of the plants would bud or mature,
Detective Barlow estimated a low yield street value of $20,
000. He further testified that those involved in the drug
trade often carry firearms to protect themselves from
moved to strike, arguing that the Commonwealth had not
provided sufficient evidence that the marijuana was
manufactured for distribution rather than his own personal
use. The trial court denied the motion.
then testified on his own behalf. He testified that he used
the marijuana for pain management of his sleep apnea and
scoliosis and that he needed such a large quantity of plants
because he was not sure how many would survive and produce
buds. Further, he explained that the AK-47 was for personal
protection, and the cash, which was found in a bank envelope,
was used to pay his bills since, in his condition, he was
unable to drive to his bank when necessary. He also testified
that the digital scale was for his coin collection. After his
testimony, Carlson ...