Bailey v. Commonwealth of Virginia, Record No. 0617-03-4 (VA 8/3/2004), Record No. 0617-03-4.
| Decision Date | 03 August 2004 |
| Docket Number | Record No. 0617-03-4. |
| Parties | WESLEY ELTON BAILEY v. COMMONWEALTH OF VIRGINIA. |
| Court | Virginia Supreme Court |
Appeal from the Circuit Court of the City of Alexandria, John E. Kloch, Judge.
Gary H. Smith for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: Chief Judge Fitzpatrick, Judges Benton and McClanahan.
Wesley Elton Bailey (appellant) appeals his conviction for possession of a firearm after having been convicted of a felony in violation of Code § 18.2-308.2. He contends that 1) the trial court erred in denying his motion to suppress evidence obtained by police incident to the arrest of the driver of the truck in which he was a passenger, and 2) the evidence was insufficient to convict him. Finding no error, we affirm.
Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that on August 4, 2003 at approximately 11:00 p.m., Alexandria Police Officers Shawn Quigley (Quigley) and Luis Torres (Torres) saw a double-parked black Mazda pickup truck. Benjamin Dunkley (Dunkley) was sitting in the driver's seat, and appellant was standing by the passenger side of the truck. The police officers told them to move the truck, and appellant jumped into the bed of the truck. As the truck drove away, Quigley saw that the license plate was obscured by a plastic cover. He activated his emergency lights and stopped the truck. When Quigley approached Dunkley and asked him for his license and registration, Dunkley stated that he had no driver's license and believed that it was suspended. Quigley ran a record check and learned that Dunkley's license was revoked and that he was wanted for a probation violation.
Torres approached appellant, who was seated in the bed of the truck, and told him to move to the passenger seat. The officer saw a green bag sitting on the passenger seat, and asked appellant if it belonged to him. Appellant said that it was his. Torres told him to place the bag in the bed of the truck. After appellant complied, Torres directed him to return to the passenger seat.
Quigley returned to the truck and informed Torres that Dunkley was wanted on a warrant for a probation violation. Quigley arrested Dunkley who was standing next to the driver's side of the truck, walked him to the police cruiser, and searched him. When Quigley returned to the truck to search the passenger compartment incident to Dunkley's arrest, appellant got out of the passenger seat and sat on the curb of the street. After Quigley searched the passenger compartment, Torres pointed out the green bag located in the bed of the truck about six inches from the side, and informed Quigley that the bag had been in the truck's cabin when the officers first approached.1 Quigley then searched the bag, which had been partly enclosed by a drawstring. Under socks and other clothing, along with appellant's driver's license, checkbook receipts, and other correspondence, Quigley found a loaded semi-automatic handgun. The search took place seven or eight minutes after Dunkley's arrest while appellant was sitting about three feet from the truck. Appellant stated that it was not his gun. The officers determined that he was a convicted felon and arrested him.
At trial, Dunkley testified that he saw a pistol lying on the seat of the truck and placed it in the bag, but was unable to tell appellant that he had done so before the police stopped them. Appellant stated that he was unaware that the gun was in his bag, but that everything else in the bag belonged to him. He admitted that he had been in prison four times, but did not know the exact number of felony convictions he had. Appellant also testified that he had loaned his truck to Dunkley's brother the morning of the day they were arrested.
Appellant was convicted in a bench trial of possession of a firearm by a convicted felon in violation of Code § 18.2-308.2. He was sentenced to a term of five years.
Appellant contends that the trial court erred in denying his motion to suppress the gun because the search of appellant's bag exceeded the permissible scope of a search incident to the arrest of the driver.
"The burden to establish that the denial of the motion to suppress constituted reversible error rests with the defendant." King v. Commonwealth, 39 Va. App. 306, 308, 572 S.E.2d 518, 519 (2002) (citations omitted). "We are 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." McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United States, 517 U.S. 690, 699 (1996)). "However, we consider de novo whether those facts implicate the Fourth Amendment and, if so, whether the officers unlawfully infringed upon an area protected by the Fourth Amendment." McNair v. Commonwealth, 31 Va. App. 76, 82, 521 S.E.2d 303, 306 (1999).
Appellant does not dispute that the arrest of the driver was lawful and that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile." New York v. Belton, 453 U.S. 454, 460 (1981). Rather, appellant argues Belton precludes a search of the truck's bed and the green bag located in it because it was not a passenger compartment. Based on the facts of this case, we disagree.
Initially we note that the bag that was searched by the police incident to the arrest of the driver was located on the passenger seat in the truck cab, clearly within reach of the driver prior to his arrest. See Chimel v. California, 395 U.S. 752, 763 (1969) (). Additionally, when the bag was removed from inside the truck cab to the truck bed, appellant had been seated in both the cab and truck bed as a passenger, a fact relied on by the trial judge. In denying appellant's motion to suppress, the trial court applied the Belton rationale to the facts of this case where the "bed" of the truck was used by appellant as a "passenger compartment."
[To] come up with any other conclusion would make Belton ludicrous, especially as in this case where the [truck] bed was being used as a passenger compartment, whether it's legally a passenger compartment, I don't think Belton really addresses that. It's talking philosophically and practically, if passengers are there, it becomes dangerous.
Thus, we need go no further than to find that in this case the truck bed was the equivalent of the truck's passenger compartment in addressing the validity of the search incident to the arrest of the driver.
Additionally,
The Court also has made clear that the arrestee need not be in the vehicle at the time of the arrest or incident search. Pursuant to Belton, officers may conduct valid searches incident to arrest even when the officers have secured the suspects in a squad car and rendered them unable to reach any weapon or destroy evidence. As long as the arrestee is the recent occupant of the vehicle searched, the search does not violate the Fourth Amendment.
Cason v. Commonwealth, 32 Va. App. 728, 735, 530 S.E.2d 920, 923 (2000) (internal citations and quotations omitted); see also United States v. Willis, 37 F.3d 313 (7th Cir. 1994); Glasco v. Commonwealth, 257 Va. 433, 513 S.E.2d 137 (1999); see also Thornton v. United States, 124 S. Ct. 2127 (2004) ().
Thus we hold that the search was proper and that the trial court did not err in denying appellant's motion to suppress.
Appellant next contends that the evidence is insufficient to prove beyond a reasonable doubt he possessed the gun. He argues that although he acknowledges ownership of the bag, his statements that he was unaware of the gun and Dunkley's testimony that he placed the gun in appellant's bag without telling him before his arrest provided a hypothesis of innocence that the Commonwealth failed to exclude. This argument is without merit.
"When the sufficiency of the evidence is challenged on appeal, we determine whether the evidence, viewed in the light most favorable to the prevailing party, the Commonwealth, and the reasonable inferences fairly deducible from that evidence support each and every element of the charged offense." Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779 (1999). "In so doing, we must discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom." Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998). We must affirm the conviction "unless it is plainly wrong or without evidence to support it." Shackleford v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899, 906 (2001).
Circumstantial evidence may establish the elements of a crime, provided it excludes every reasonable hypothesis of innocence. See, e.g., Tucker v. Commonwealth, 18 Va. App. 141, 143, 442 S.E.2d 419,...
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