Dodd v. Com., 2653-06-4.

• Citation: 649 S.E.2d 222,50 Va. App. 301
• Decision Date: 28 August 2007
• Docket Number: No. 2653-06-4.,04 June 2653
• Court: Court of Appeals of Virginia
• Parties: Robert Nicholas DODD v. COMMONWEALTH of Virginia.

649 S.E.2d 222

50 Va. App. 301

Robert Nicholas DODD v. COMMONWEALTH of Virginia.

No. 2653-06-4.

Court of Appeals of Virginia, Alexandria.

August 28, 2007.

Lance D. Gardner (Lawrence Smith & Gardner, on brief), Fairfax, for appellant.

Greg Franklin, Assistant Attorney General (Robert F. McDonnell, Attorney General; Denise C. Anderson, Assistant Attorney General, on brief), for appellee.

Present: BENTON, ELDER and BEALES, JJ.

BEALES, Judge.

Robert Nicholas Dodd (appellant) was convicted after a bench trial of two counts of possession of a controlled substance, pursuant to Code § 18.2-250. He argues on appeal that the trial court erred in denying his motion to suppress evidence collected after his arrest. He contends the officers did not have probable cause for his arrest. For the following reasons, we find the trial court did not err, and we affirm his convictions.

I. Background

Police encountered appellant on the evening of July 23, 2005, while conducting a surveillance operation at a 7-Eleven where they knew illegal drug activity occurred. They first saw appellant when he arrived in the store's parking lot as a front-seat passenger in a "kind of ... beat-up" Dodge Intrepid with a Florida license plate. Pursuant to a computer check of the license plate number, the officers learned the registered owner of the car was a woman who had been declared a habitual offender in Virginia and had had her driver's license revoked. The person driving the vehicle at that time was a woman who matched "the descripters [sic] for the registered owner." The officers watched as appellant and the driver exited the car and entered the store. When they came out a short time later, the driver returned to the Intrepid while another "male approached [appellant] on the sidewalk and made contact." The two men spoke briefly and then entered a black pickup truck that had been "backed into a parking spot." While continuing to observe as appellant and the second man sat in the truck for several minutes, the officers determined that the pickup truck was a rental vehicle registered in Maryland. One of the officers, Officer Polowy, testified that "he [couldn't] say [he observed] a hand to hand ... exchange, but it seemed to him as if [the men] were in the vehicle for a purpose and he thought it was suspicious." Based on "the totality of everything together," the officers "felt that perhaps there was a drug transaction," but that they lacked probable cause to draw such a conclusion at that time.

Although lacking probable cause to believe a drug transaction had occurred, the officers knew the driver of the Intrepid did not have a valid driver's license, and Officer Shughart approached the driver. While Officer Shughart spoke to the driver, Officer Ivancic approached appellant, who was talking on a cell phone, and appellant agreed to speak with Officer Ivancic. After obtaining appellant's identification, Officer Ivancic learned appellant's driver's license was also suspended. Officer Ivancic informed appellant he was suspicious that a drug transaction may have taken place and asked appellant for permission to search his person. Appellant declined that request, but consented to Officer Ivancic's subsequent request to frisk him for weapons. Officer Ivancic found no weapons other than a pocketknife that appellant had pointed out, but in appellant's pants pocket, Officer Ivancic felt a large bulge he suspected was cash. Appellant confirmed the bulge was a roll of money and claimed he had just been paid.

After conferring with the other officers at the scene, Officer Ivancic told appellant he was free to leave. Appellant opted to remain at the 7-Eleven, explaining "his tools for [his] work" as an electrician were in the Intrepid and that he wanted to call a friend to take him and his tools home. Officer Ivancic could see the tools through the window of the car and told appellant he was free to take the tools with him.

Because neither the driver nor appellant was licensed to drive the Intrepid from the scene, Officer Shughart was required to have it towed. While appellant waited for his alternate transportation to arrive, Officer Shughart began to inventory the car's contents in preparation for towing. Inside the car, Officer Shughart found a woman's purse containing two pill bottles that had been converted into smoking devices. The devices contained ashes and appeared to have been used to smoke cocaine or marijuana. In a container or "tin" in the center console beneath the front armrest, the police discovered "numerous items of drug paraphernalia," including marijuana and a piece of suspected crack cocaine. Although one of the officers described the container as a "makeup case" or "makeup purse," only drugs and drug paraphernalia were inside the container. The female driver admitted the purse that contained the two smoking devices was hers, but she denied knowing the container of drugs was in the center console and disclaimed ownership of the container and its contents.

At this point, Officer Ivancic told appellant that he could not leave and that they intended to search him. After Officer Ivancic had begun the search, appellant fled. He was caught and searched again, and Officer Ivancic found heroin and cocaine in a bag removed from appellant's sock. Appellant also had $1,835 in cash and three empty sandwich baggies in his pocket. After the arrest, appellant told Officer Ivancic that he had the drugs "simply [to] use[] as like a bartering tool with women . . . [he] bartered sex for those narcotics."

Prior to trial, appellant moved the trial court to suppress the evidence collected after his arrest, arguing that the arrest was without probable cause. Appellant renewed his motion to suppress at trial. The trial court found the officers had probable cause to arrest appellant and denied the motion. Appellant was convicted based on his possession of the heroin and cocaine discovered in his sock.

II. Probable Cause

On appeal of the denial of a motion to suppress, we consider the evidence adduced at both the suppression hearing and at trial, DePriest v. Commonwealth, 4 Va.App. 577, 583, 359 S.E.2d 540, 542-43 (1987), and we view it in the light most favorable to the prevailing party, granting to the evidence all reasonable inferences fairly deducible therefrom, Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991). "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, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)).

Ward v. Commonwealth, 47 Va.App. 733, 742-43, 627 S.E.2d 520, 525 (2006), aff'd on other grounds, 273 Va. 211, 639 S.E.2d 269 (2007).

The parties agree that the ultimate issue is whether the officers had probable cause to arrest appellant. "The Supreme Court `repeatedly has explained that "probable cause" to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing . . . that the suspect has committed, is committing, or is about to commit an offense.'" Thomas v. Commonwealth, 38 Va. App. 49, 53, 561 S.E.2d 754, 756 (2002) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 2632, 61 L.Ed.2d 343 (1979)).

The offense at issue here was possession of crack cocaine. To arrest for the offense of cocaine possession, an officer must have probable cause to believe "`the defendant was aware of the presence and character of the drugs and that he intentionally and consciously possessed them.'" Castaneda v. Commonwealth, 7 Va.App. 574, 583, 376 S.E.2d 82, 86 (1989) (en banc) (quoting Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814 (1975)).

Possession need not be actual, exclusive, or lengthy in order to support a conviction; instead, the statute criminalizes constructive or joint possession of illegal drugs of any duration. Constructive possession of illegal drugs may be proven by "`evidence of acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the [accused] was aware of both the presence and character of the substance and that it was subject to his dominion and control.'"

Wells v. Commonwealth, 32 Va.App. 775, 781, 531 S.E.2d 16, 19 (2000) (quoting Burchette v. Commonwealth, 15 Va.App. 432, 434, 425 S.E.2d 81, 82 (1992) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986))). Code § 18.2-250 provides that, "[u]pon the prosecution of a person for [possessing a controlled substance as proscribed by Code § 18.2-250], ownership or occupancy of ... a vehicle ... in which a controlled substance was found shall not create a presumption that such person either knowingly or intentionally possessed [that] controlled substance." (Emphases added). See also Myers v. Commonwealth, 43 Va. App. 113, 119-21, 596 S.E.2d 536, 538-39 (2004) (discussing the difference between a finding of proof beyond a reasonable doubt to prove guilt and the lower standard of probable cause necessary for an arrest). Nevertheless, proximity to the contraband or occupancy of a vehicle in which the contraband was found is a factor that may be considered in determining whether a defendant possessed the contraband, see Drew, 230 Va. at 473, 338 S.E.2d at 845 (citing Code § 18.2-250); Brown v. Commonwealth, 15 Va.App. 1, 9, 421 S.E.2d 877, 882 (1992) (en banc), whether for purposes of proving probable cause or proving guilt beyond a reasonable doubt.

Here, the facts and circumstances available to the officers when they arrested and searched Dodd were sufficient to provide them with probable cause to believe Dodd constructively...