Commonwealth v. White, Record No. 160879

• Decision Date: 01 June 2017
• Docket Number: Record No. 160879
• Citation: 799 S.E.2d 494
• Parties: COMMONWEALTH of Virginia v. Lashant Leonardo WHITE
• Court: Virginia Supreme Court

293 Va. 411

799 S.E.2d 494

COMMONWEALTH of Virginia

v.Lashant Leonardo WHITE

Record No. 160879

Supreme Court of Virginia.

JUNE 1, 2017

Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General; Susan Baumgartner, Assistant Attorney General, on brief), for appellant.

Daymen W. Robinson (Law Office of Daymen Robinson, on brief), Norfolk, for appellee.

PRESENT: Lemons, C.J., Goodwyn, McClanahan, Powell, Kelsey, and McCullough, JJ., and Millette, S.J.

OPINION BY JUSTICE D. ARTHUR KELSEY

After denying a motion to suppress, the trial court convicted Lashant Leonardo White of possession of heroin with the intent to distribute, third or subsequent offense, in violation of Code § 18.2–248.¹ The Court of Appeals reversed the conviction, holding that the trial court had erred in denying White's motion to suppress and further held that the error was not harmless. We reverse the judgment of the Court of Appeals and reinstate the conviction.

I.

A.

On appeal, we state the facts "in the light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences."

Evans v. Commonwealth , 290 Va. 277, 280, 776 S.E.2d 760, 761 (2015) (citation omitted). "This standard requires us ‘to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.’ " Id. (quoting Jones v. Commonwealth , 279 Va. 521, 528, 690 S.E.2d 95, 99 (2010) ).

When considering whether to affirm the denial of a pretrial suppression motion, an appellate court reviews not only the evidence presented at the pretrial hearing but also the evidence later presented at trial. See Carroll v. United States , 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925) ("If the evidence given on the trial was sufficient, as we think it was, to sustain the introduction of the [contested evidence], it is immaterial that there was an inadequacy of evidence when application was made for its return. A conviction on adequate and admissible evidence should not be set aside on such a ground."); Ricks v. Commonwealth , 39 Va.App. 330, 336 n.3, 573 S.E.2d 266, 269 n.3 (2002) (applying the principle described in Carroll ); DePriest v. Commonwealth , 4 Va.App. 577, 583, 359 S.E.2d 540, 542–43 (1987) (same); see also United States v. Han , 74 F.3d 537, 539 (4th Cir. 1996) (noting that "federal courts have held uniformly that an appellate tribunal may consider evidence adduced at trial that supports the district judge's ruling" made at a pretrial suppression hearing).²

B.

One evening in October 2013, three Norfolk police investigators responded to a citizen's complaint that narcotics activity was occurring at a local motel. That motel had been the situs of "numerous" similar complaints, J.A. at 58, and the location of "several" prior drug and prostitution arrests, id. at 61. One of the investigators testified that prior suspects revealed the motel as being "their area of choice as far as meeting and making these [drug] transactions." Id. at 58. It was a "known drug motel," id. at 70, and a virtual "breeding ground for drugs and prostitution," id. at 120–21.

Upon arriving at the motel, the investigators saw White standing in the parking lot. A vehicle came into the lot, circled around, and its driver eventually stopped to talk to White. He walked up to the driver's side window and began "leaning" into the vehicle with both arms inside. Id. at 122, 136. He later emerged out of the window with a handful of cash in one hand and a cell phone in the other. Based upon their experience and training, the investigators believed that White had engaged in a drug transaction. Though they did not see the transfer of any specific narcotics as White leaned into the vehicle, all of the other circumstances suggested that such a transfer had likely occurred. Id. at 74.

The investigators approached White, mentioned their suspicions, and asked for permission to search him. After White had consented, the officers searched him and found on his person:

• three baggies of heroin, consisting of 4.306 grams of "raw heroin" that had not been "cut" or diluted for retail sale, packaged in three different weights: approximately ? ounce (or "3.53 grams"), 1 gram, and ½ gram, id. at 130–32;

• $644 in currency consisting of 31 twenty-dollar bills, 1 ten-dollar bill, 2 five-dollar bills, and 4 one-dollar bills, which were organized by "denominations in different pockets," id. at 129–30;

• two cell phones, id. at 129; and

• one baggie with .839 grams of marijuana, Commonwealth's Ex. 6.

The investigators found no drug paraphernalia on White that would have allowed him to use either the heroin or the marijuana.

After his arrest, White asked the investigators to "find his girlfriend Tanya at Room 219" of the motel. J.A. at 87. He did not claim that he had rented the room or suggest that any of his personal property would be found there. Nor did he voice any objection to the police searching the room when he made his request. Pursuant to White's request, one of the investigators went to the motel room and knocked on the door. A woman named "Tanya" opened the door and let the investigator in after he had explained that White had been arrested.

Tanya "seemed to have control of the room," which led the investigator to believe that she was "the lessee of the room." Id. at 88. The investigator asked for permission to search the room, and she agreed. During the search, the investigator found a gray plastic bag on the bed. Tanya volunteered that the bag "belonged" to White. Id. at 87. She said nothing, however, to disclaim either her apparent joint possession of the bag or her access to it. Nor did she at any time "object to [the investigator] looking in the bag." Id. at 93. Hearing no such objection, the investigator opened the bag and found a digital scale, 200 empty capsules, and smaller plastic baggies.

C.

At a bench trial, a police investigator testified as an expert in "packaging, distribution, and sale of illegal street drugs." Id. at 128. He offered two distinct opinions in response to the Commonwealth's questioning. He was first asked to "just consider the evidence that was recovered from the defendant" during the search of his person. Id. at 129. Based solely on this evidence, the expert opined that the evidence found on White's person, by itself, was inconsistent with personal use for several reasons.

To begin, the expert explained that White possessed "raw" heroin that drug dealers break down for retail sale "with a cutting agent" that doubles and sometimes triples the quantity sold to users. Id. at 132–33. The expert added that the quantity of raw heroin found on White's person, after cutting, could produce as many as 129 capsules of heroin. Id. at 133. Typical heroin users, the expert testified, have no more than 2 to 4 capsules of heroin on them at any one time. Id. at 145. Heroin users, as opposed to heroin dealers, "usually have just a certain amount to feed their fix." Id. at 130. The expert's testimony suggested that a typical heroin user would not possess the amount of raw heroin discovered on White—enough to fill 43 capsules with raw heroin or as many as 129 capsules after cutting.

Other circumstances, the expert testified, also refuted any reasonable hypothesis that White possessed the raw heroin for personal use only. According to the expert, mere users must have some way of actually using the drug. But as the expert explained, White did not possess any smoking devices, capsules, syringes, or other user "work kit[s]" that would allow him to use any of the raw heroin in his possession. Id. at 138–39; see also id. at 143–44. What White did have in his possession, however, was a large amount of currency ($644) organized by denomination in separate pockets consisting of 31 twenty-dollar bills, 1 ten-dollar bill, 2 five-dollar bills, and 4 one-dollar bills. See id. at 130.

The expert stated that having different "denominations in different pockets" is consistent with drug distribution. Id. at 130–31. The expert added that the possession of two cell phones also indicates drug distribution because dealers use one cell phone as a "drug work phone" and the other as a "personal phone." Id. at 131. When coupled with other indicia of drug distribution, the expert opined that "two cell phones ... goes exactly along with a drug dealer" and what he would "normally have with him." Id. at 139. Finally, the raw heroin found on White was separated in three baggies, each with different weights. According to the expert, this fact further supported the inference that the heroin had not been purchased in standard packaging for a user.

After delivering a lengthy opinion based solely upon the evidence discovered on White, the expert was then asked only two questions by the prosecutor about the items found in the gray plastic bag in his girlfriend's motel room. The first question asked whether the items in the bag were important. The expert explained that all of the items (the digital scale, the 200 empty capsules, and the plastic baggies) were useful for drug distribution. The second question simply asked the expert to confirm that there were 200 empty capsules found in the bag. These two answers only occupied 10 lines of text in the trial transcript. See id. at 134. At no time did the expert suggest that his earlier opinion about the items found on White's person was contingent on the discovery of the items in the plastic bag in the motel room.

After the Commonwealth concluded its case, White offered no evidence, exhibits, or witnesses. In closing argument, the prosecutor argued for a conviction of possession of heroin with the intent to distribute, third or subsequent offense, based solely upon the incriminating evidence found on White's person. See id. at 148–49. The prosecutor did not mention the incriminating evidence found in the plastic bag recovered from Tanya's motel room. The trial court subsequently found White guilty of possession of heroin with the intent to...