Green v. Com., Record No. 2815-98-1.

• Decision Date: 09 May 2000
• Docket Number: Record No. 2815-98-1.
• Citation: 528 S.E.2d 187,32 Va. App. 438
• Court: Virginia Court of Appeals
• Parties: Tommy GREEN v. COMMONWEALTH of Virginia.

528 S.E.2d 187

32 Va. App. 438

Tommy GREEN v. COMMONWEALTH of Virginia.

Record No. 2815-98-1.

Court of Appeals of Virginia, Chesapeake.

May 9, 2000.

Michael A. Jagels (James O. Broccoletti; Zoby & Broccoletti, on brief), Norfolk, for appellant.

Leah A. Darron, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and ELDER and BRAY, JJ.

FITZPATRICK, Chief Judge.

Tommy Green (appellant) was convicted in a bench trial of misdemeanor possession of marijuana, in violation of Code § 18.2-250.1, possession of cocaine, in violation of Code § 18.2-250,¹ and transporting cocaine with the intent to distribute, in violation of Code § 18.2-248.01. On appeal, he contends the trial court erred: (1) in denying his motion to suppress; and (2) in finding that venue for the transportation of cocaine charge was proper in the City of Suffolk. For the following reasons, we affirm the trial court's denial of the motion to suppress and reverse and remand the conviction for transporting cocaine with the intent to distribute.

I.

Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, the prevailing party below, 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 October 1, 1996, Detective Robert Vasquez (Vasquez) of the Newport News Police Department intercepted a package in Newport News, Virginia. At the time, Vasquez was working with the DEA's drug task force at a United Parcel Service (UPS) facility in Newport News when he saw a partially opened package. The package appeared to contain green vegetables, had been shipped from New York, New York, and was addressed to "Mrs. J. Jenkins" at "2832 East Washington Street" in the City of Suffolk.

Vasquez removed the package from the shipping line and placed it in a line with ten other boxes. A drug detection dog was brought in to determine whether drugs were present. During the procedure, the dog alerted on the package in question. Based on this information, Vasquez obtained a search warrant for the package, opened it and found 211.6 grams of cocaine and 59 grams of marijuana in a brown paper bag underneath some "collard greens" and "green beans."

As a result of the search, Vasquez contacted the City of Suffolk Police Department and executed a controlled delivery of the package to the Suffolk address listed. Prior to executing the delivery, police removed all of the cocaine and marijuana except for one gram of each substance.

The residence at the address listed on the package was a single story duplex that was one building, but it contained two street numbers on the front of the building, "2832" on the left and "2834" on the right. At the time of delivery, Vasquez, wearing a UPS uniform, approached the chain link fence surrounding the building. After the agent rang the doorbell, which was affixed to the chain link fence, appellant exited from 2834 and came to the gate. Vasquez told appellant that he had "a package for 2832 for Mrs. J. Jenkins." Appellant stated, "Well, that's me." Vasquez said, "Well, you need to sign for the box." Appellant exited the gate and signed for the package. The agent gave the box to appellant, who re-entered the 2834 side of the residence.

As the delivery occurred, Investigator Gary Parker (Parker) was at the magistrate's office with a substantially prepared search warrant and affidavit. Parker, awaiting verification of the delivery, was on a cellular phone with Officer T.M. Davenport, who was at the scene. Davenport reported that appellant exited 2834, received the package and re-entered the 2834 residence. Parker made a handwritten addition of this information at the end of the typed search warrant affidavit. The officer initialed the handwritten addition to the affidavit and the magistrate issued the search warrant for "2832 EAST WASHINGTON ST. SUFFOLK, VA. A GREY SINGLE STORY DUPLEX WITH WHITE TRIM, ENCLOSED WITH A CHAIN LINK FENCE. WHEN FACING THE RESIDENCE IT IS TO THE FAR LEFT." The warrant did not mention the 2834 side of the duplex because the officer failed to insert the information into the warrant as he had in the attached affidavit. However, Parker testified that he believed the warrant authorized the search of "2832 East Washington Street and 2834 East Washington Street," both located within the single story duplex. Approximately two minutes after appellant took possession of the package, police officers began to enter the 2834 residence. At that moment, appellant exited 2832 carrying the package and was apprehended by the police. Upon his arrest, police found a UPS "customer counter shipping record" in appellant's right rear pocket. That document, dated September 30, 1996, constituted a receipt given by UPS to the individual who originally shipped the package at the UPS counter in New York. That document showed that the package had been shipped at the next day air travel rate, indicating that the package was shipped from New York on September 30, 1996 and was to be delivered in Suffolk, Virginia the following day.

During the search of the 2832 premises, police recovered from a hole in the floorboard the suspected one gram of cocaine and one gram of marijuana. The police also saw loose vegetables, similar to the ones contained in the package when it was initially seized by Vasquez at the Newport News UPS facility. In a search of the 2834 residence, police recovered numerous partially smoked marijuana cigarettes, a clear plastic bag containing marijuana, and rolling papers. Appellant admitted that after he accepted the package from Vasquez and re-entered the 2834 residence through the front door, he then entered the 2832 residence through the back door. When the police apprehended appellant exiting 2832, he was the only individual present in that residence.

In his pretrial motion to suppress, appellant argued that the evidence seized from the 2834 residence was inadmissible because the face of the warrant did not authorize the police to search that side of the duplex. The trial court denied appellant's motion, stating that the warrant was properly issued for 2832 and, based upon the information in the affidavit attached to the warrant, the officers had a good faith basis to search 2834.

At the conclusion of the Commonwealth's case, appellant moved to strike the transportation charge, contending that venue was improper in the City of Suffolk. The package that was delivered to the Suffolk address contained less than one ounce of suspected cocaine. Appellant conceded that the transportation charge could be tried in Newport News where the police seized the entire 211 grams. However, he argued the evidence was insufficient to prove that he transported the statutorily required amount into the City of Suffolk. The trial court denied the motion, stating the following:

The transportation undoubtedly occurred beyond any shade of a doubt. Two hundred eleven grams is some eight ounces, is certainly more than four ounces, substantially more than one ounce of cocaine. It was transported in the State of Virginia. In commerce as to Newport News and then also it was brought from Newport News to Suffolk by the police. The issues are whether Mr. Green was involved in that transporting.

Mr. Green willingly received the package that was addressed to the address where he held himself out to reside. There is evidence that he used, in the case that he used both addresses, 2834 as well as 2832. He held himself out to reside in both of the addresses. He was there. He was the only person there. He willingly accepted the box, without any question, as to the point of delivery, as to the return address shown on the box. Not only that, but I think most tellingly, he was in possession of the customer counter shipping record which originated at the point of shipping in New York City. . . .

Appellant was convicted of misdemeanor possession of marijuana, in violation of Code § 18.2-250.1, possession of cocaine, in violation of Code § 18.2-250, and transporting cocaine with the intent to distribute, in violation of Code § 18.2-248.01.

II. SEARCH WARRANT

"In reviewing a trial court's denial of a motion to suppress, `[t]he burden is upon [the defendant] to show that th[e] ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error.'" McGee v. Commonwealth, 25 Va.App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)). In the instant case, appellant does not challenge the validity of the search warrant for the premises located at 2832 East Washington Street. However, he argues the search of the 2834 residence was invalid because the warrant specified only "2832" and the good faith exception did not apply.

Assuming, without deciding, that the search of 2834 East Washington Street was improper, any error was harmless because the evidence seized from the 2832 residence was sufficient to convict appellant of the two possession offenses. "When a trial court admits evidence in violation of the United States Constitution, the court's error is a constitutional one." Williams v. Commonwealth, 30 Va.App. 378, 383, 517 S.E.2d 246, 249 (1999) (citing Jenkins v. Commonwealth, 254 Va. 333, 336, 492 S.E.2d 131, 132 (1997)). "[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Id. (internal quotations and citations omitted). "We decide whether the erroneous admission of evidence was sufficiently prejudicial to require reversal on the basis of our own reading of the record and on what seems to us to have been the probable impact on the fact finder." Id. at 384, 517 S.E.2d at 249 (internal quotations...