Joyce v. Commonwealth Of Va.

• Citation: 696 S.E.2d 237,56 Va.App. 646
• Decision Date: 10 August 2010
• Docket Number: Record No. 1397-09-1.
• Court: Virginia Court of Appeals
• Parties: Tremon Brian JOYCEv.COMMONWEALTH of Virginia.

56 Va.App. 646

696 S.E.2d 237

Tremon Brian JOYCEv.COMMONWEALTH of Virginia.

Record No. 1397-09-1.

Court of Appeals of Virginia Chesapeake.

Aug. 10, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert H. Knight, III, Assistant Public Defender (J. Barry McCracken, Assistant Public Defender; Office of the Public Defender, on brief), for appellant.

Alice T. Armstrong, Assistant Attorney General II (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: FRANK, KELSEY and POWELL, JJ.

KELSEY, Judge.

The trial court found Tremon Brian Joyce guilty of possession of heroin with intent to distribute, third or subsequent offense, in violation of Code § 18.2-248(C). On appeal, Joyce contends the trial court erred by denying his pretrial motion to suppress, admitting into evidence a prior conviction order and a report obtained from the Virginia Criminal Information Network (VCIN), and finding the evidence proved his prior convictions. In our opinion, the trial court did not err in any of these respects. We thus affirm Joyce's conviction.

I.

When reviewing a denial of a suppression motion, we view the evidence “in the light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.” Glenn v. Commonwealth, 49 Va.App. 413, 416, 642 S.E.2d 282, 283 (2007) ( en banc ) (citation omitted) aff'd, 275 Va. 123, 654 S.E.2d 910 (2008). We apply the same standard when reviewing a challenge to the sufficiency of the evidence. See Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This principle requires us to “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 to be drawn therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted).

II.

In February 2008, Norfolk police conducted surveillance in the 600 block of Liberty Street, an area of the city with a notorious reputation for being “infested with narcotics.” Based on the officers' prior experience, they set up a surveillance post opposite a Shop ‘N Go convenience store. As one officer explained, “there's always drug activity going on at the side of the Shop ‘N Go.” The officer had made about thirty narcotics arrests in the general area, many involving firearms. For this reason, the management of the store posted no trespassing signs on the side of the building. The store management also filed a letter with the police department requesting enforcement of its trespassing ban.

During the surveillance, the officer observed Joyce walk up to the side of the Shop ‘N Go convenience store. The officer testified:

Q: Specifically with regard to the side of the building that you saw the defendant standing on, was there a no-trespassing sign at that location?

A: He was standing right under a no-trespassing sign, yes.

Q: You said standing right under. Approximately how far away was the no-trespassing sign from the defendant?

A: Where he was standing it was actually above him. Posted above him was a white sign with red letters that said: “No trespassing.”

(Emphasis added.) Joyce did not go in or out of the store. Nor did he attempt to do so. There were no doors at the side of the store and, thus, no reason for any customer to loiter there. Shortly after Joyce's arrival, the officer watched another male approach Joyce. After the two men conducted a hand-to-hand transaction, they left the convenience store traveling in opposite directions.

Having witnessed Joyce trespassing, and suspecting him of also making a drug transaction, the officer pulled up next to Joyce as he rode his bicycle away from the convenience store. “Hey, can I talk to you for a second,” the officer asked. “Yes,” Joyce replied. The officer asked him what he was doing at the side of the convenience store. Joyce answered, “just buying blunts.” Joyce could not, however, provide a receipt for the purchase. The officer asked for Joyce's consent to search him for weapons. Joyce agreed. As the officer began the search, Joyce twice pulled his hand out of the officer's grasp and reached toward his waistband. Fearing Joyce was reaching for a weapon, the officer searched Joyce's crotch area and discovered instead a bag containing fifty-seven capsules of suspected heroin packaged in five or six bundles. The officer placed Joyce under arrest for trespassing. The Commonwealth later indicted Joyce for possession of heroin with intent to distribute, third or subsequent offense.

Prior to trial, Joyce filed a motion to suppress seeking to exclude from evidence the recovered heroin. Joyce claimed the officer did not have probable cause to arrest him for trespassing or to search him incident to that arrest. Without addressing whether the search was consensual, the trial court denied the motion holding the circumstances provided probable cause for the officer to arrest Joyce for trespassing at the side of the convenience store. Thus, the search incident to that arrest (albeit immediately preceding it) was entirely valid.

At trial, the Commonwealth offered two orders into evidence showing Joyce had twice been convicted of possession of cocaine with intent to distribute. Joyce objected to one of the orders, a Norfolk Circuit Court order from 1992, claiming it was irrelevant because it did not identify him as the defendant. In reply, the Commonwealth sought to introduce a VCIN report proving the defendant named in the 1992 order was one of Joyce's many aliases. Joyce objected claiming the VCIN report should be excluded as hearsay. The trial court sustained the objection “at this time.”

Later in the trial, a Norfolk police investigator testified about the use of VCIN reports by law enforcement and explained they were routinely and regularly relied upon by police officers. Citing Frye v. Commonwealth, 231 Va. 370, 345 S.E.2d 267 (1986), the Commonwealth again sought to introduce the VCIN report into evidence for the limited purpose of proving the name of the defendant on the 1992 conviction order matched an alias Joyce had previously used. Joyce again objected. The trial court overruled the objection and admitted the VCIN report for the purpose offered.

Sitting as factfinder, the trial court found the evidence proved Joyce possessed heroin with intent to distribute. On appeal, Joyce argues the court erred by denying his pretrial motion to suppress, admitting into evidence his prior convictions and a VCIN report, and finding the evidence proved his prior convictions.

III.

A. Search Incident to Arrest for Trespassing

Though the ultimate question whether an officer violated the Fourth Amendment triggers de novo appellate scrutiny, “we defer to the trial court's findings of ‘historical fact’ and give ‘due weight to the inferences drawn from those facts by resident judges and local law enforcement officers.’ ” Slayton v. Commonwealth, 41 Va.App. 101, 105, 582 S.E.2d 448, 449-50 (2003) (citation omitted); see also Malbrough v. Commonwealth, 275 Va. 163, 169, 655 S.E.2d 1, 3 (2008) (recognizing that this standard requires us to “give due weight to inferences drawn from those facts by resident judges and local law enforcement officers” (citation omitted)). In addition, when affirming a suppression decision, we “consider facts presented both at the suppression hearing and at trial.” Testa v. Commonwealth, 55 Va.App. 275, 279, 685 S.E.2d 213, 215 (2009) (citation omitted).

Under the Fourth Amendment, “[w]hen officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety.” Virginia v. Moore, 553 U.S. 164, 178, 128 S.Ct. 1598, 1608, 170 L.Ed.2d 559 (2008) rev'g, 272 Va. 717, 636 S.E.2d 395 (2006). Consequently, the “standards traditionally governing a search incident to lawful arrest are not, therefore, commuted to the stricter Terry standards by the absence of probable fruits or further evidence of the particular crime for which the arrest is made.” United States v. Robinson, 414 U.S. 218, 234, 94 S.Ct. 467, 476, 38 L.Ed.2d 427 (1973). Because a legally justifiable arrest is itself a “reasonable intrusion under the Fourth Amendment,” it follows that “a search incident to the arrest requires no additional justification.” Id. at 235, 94 S.Ct. at 477.

In addition, when “the formal arrest follow[s] quickly on the heels of the challenged search,” it is not “particularly important that the search preceded the arrest rather than vice versa,” Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633 (1980), “so long as probable cause existed at the time of the search,” Slayton, 41 Va.App. at 108, 582 S.E.2d at 451. A constitutionally permissible search incident to arrest “may be conducted by an officer either before or after the arrest.” Italiano v. Commonwealth, 214 Va. 334, 336, 200 S.E.2d 526, 528 (1973) (emphasis in original). It does not matter whether the search occurs “at the moment the arresting officer takes the suspect into custody or when he announces that the suspect is under arrest.” Id. at 337, 200 S.E.2d at 528 (citation omitted).

When the probable cause for an arrest exists independently of what the search produces, the fact that the search precedes the formal arrest is immaterial when the search and arrest are nearly simultaneous and constitute for all practical purposes but one transaction. To hold differently would be to allow a technical formality of time to control when there has been no real interference with the substantive rights of a defendant.

Id. at 337, 200 S.E.2d at 528-29 (citation omitted); see also

Brown v. Commonwealth, 270 Va. 414, 418 n. 1, 620 S.E.2d 760, 762 n. 1 (2005) (finding it inconsequential that the officer searched the suspect “before officially arresting him”).

In this case, we...