Ricks v. Commonwealth, Record No. 2534-03-1 (VA 1/11/2005)

• Decision Date: 11 January 2005
• Docket Number: Record No. 2534-03-1.
• Court: Supreme Court of Virginia
• Parties: FLOYD RICKS v. COMMONWEALTH OF VIRGINIA.

Page 1

Unpublished Opinion

FLOYD RICKS v. COMMONWEALTH OF VIRGINIA.

Record No. 2534-03-1.

Court of Appeals of Virginia, Chesapeake.

January 11, 2005.

Appeal from the Circuit Court of the City of Norfolk, Joseph A. Leafe, Judge.

William P. Robinson, Jr. (Robinson, Neeley & Anderson, on brief), for appellant.

Margaret W. Reed, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: Judges Elder, Clements and Senior Judge Overton.

MEMORANDUM OPINION^*

JUDGE LARRY G. ELDER

Floyd Ricks (appellant) appeals from his bench trial convictions for possessing a firearm after having been convicted of a felony, receiving stolen property, possessing marijuana, selling alcohol without a license, and maintaining a common nuisance. On appeal, he contends the search that yielded the items on which his convictions were based was unreasonable because the affidavit supporting the search warrant contained "no facts . . . upon which one might reasonably conclude that evidence sought would be found" in the place searched. He also argues that the good faith exception to the Fourth Amendment does not apply because the affidavit supporting the warrant is so lacking in probable cause as to render official belief in its existence unreasonable. Finally, he contends the evidence was insufficient to prove he constructively possessed the firearm found during the search. We hold the affidavit contained sufficient allegations to constitute probable cause for issuance of the challenged search warrant and that the evidence was sufficient to prove appellant exercised constructive possession of the firearm. Thus, we affirm the challenged convictions.

I.

A. PROBABLE CAUSE FOR ISSUANCE OF SEARCH WARRANT

On appeal of the denial of a motion to suppress, we view the evidence in the light most favorable to the Commonwealth, 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). "The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him[,] . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983) (citation omitted); see Garza v. Commonwealth, 228 Va. 559, 563, 323 S.E.2d 127, 129 (1984). The affidavit must, at a minimum, "explain the significance or relevance of searching [the] particular location." United States v. Hove, 848 F.2d 137, 139 (9th Cir. 1988), cited with approval in Janis v. Commonwealth, 22 Va. App. 646, 652, 472 S.E.2d 649, 652-53 (1996).

"The initial determination of probable cause requires the magistrate to weigh the evidence presented in light of the totality of the circumstances." Tart v. Commonwealth, 17 Va. App. 384, 387, 437 S.E.2d 219, 221 (1993); see Miles v. Commonwealth, 13 Va. App. 64, 68, 408 S.E.2d 602, 604 (1991), aff'd on reh'g en banc, 14 Va. App. 82, 414 S.E.2d 619 (1992). "When reviewing a decision to issue a warrant, a reviewing court must grant `great deference' to the magistrate's interpretation of the predicate facts supporting the issuance of a search warrant and to the determination of whether probable cause supported the warrant." Janis, 22 Va. App. at 652, 472 S.E.2d at 652 (citing Gates, 462 U.S. at 236, 103 S. Ct. at 2331); see also Ornelas v United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911 (1996) (stating that "the scrutiny applied to a magistrate's probable-cause determination to issue a warrant is less than that for warrantless searches," to which an appellate court applies a de novo standard of review). "`A deferential standard of review is appropriate to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant.'" Williams v. Commonwealth, 4 Va. App. 53, 68, 354 S.E.2d 79, 87 (1987) (quoting Massachusetts v. Upton, 466 U.S. 727, 733, 104 S. Ct. 2085, 2088, 80 L. Ed. 2d 721 (1984)). "Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746, 13 L. Ed. 2d 684 (1965) (citation omitted).

We applied these principles in Janis, upon which appellant relies in this appeal. In Janis, we held the challenged affidavit contained an insufficient nexus between marijuana being cultivated in Dinwiddie County and the Hopewell location for which the search warrant was issued. 22 Va. App. at 653-55, 472 S.E.2d at 653-54. The affidavit in Janis indicated that Janis was seen on property in Dinwiddie on which marijuana was being cultivated, but it gave no indication as to how Janis was linked to the place to be searched in Hopewell. Id. at 652-53, 472 S.E.2d at 653; see id. at 653, 472 S.E.2d at 653 (emphasizing in context of good faith analysis that affidavit "gave absolutely no indication that the fruits of criminal activity would probably be found at that location" in Hopewell); id. at 655, 472 S.E.2d at 654 (Fitzpatrick, J.) (concurring in decision that affidavit "clearly did not link the marijuana found in the Dinwiddie field to appellants' residence at 803 Pine Avenue in Hopewell" but opining that record established good-faith exception applied).

Here, in contrast to Janis, the affidavit itself contained the address of appellant's residence at 926 Wilson Street and indicated "[s]urveillance . . . show[ed]" appellant occupied both that and "another residence," 769 A Avenue, Apartment A,¹ in which the informant had made multiple controlled purchases of contraband from appellant.² Police observed appellant "coming and going from each location." More importantly, the affidavit in appellant's case contained the sworn statement of the affiant, an eight-year veteran of the police force with training in narcotics interdiction and almost two years' experience investigating narcotics distribution, that "records, ledgers, monies, packaging materials and other narcotics related paraphernalia are kept at places where persons involved in illegal narcotics stay."

A magistrate is entitled to draw reasonable inferences about where incriminating evidence is likely to be found, based on the nature of the evidence and the type of offense. In the case of drug dealers, evidence of that on-going criminal activity is likely to be found where the dealer resides. Thus, [a] magistrate reasonably [may] infer the probability that drugs, or drug paraphernalia, or records or other evidence of [the individual's] suspected drug-related activity [will] be found in his residence.

Gwinn v. Commonwealth, 16 Va. App. 972, 975, 434 S.E.2d 901, 904 (1993) (citations omitted).

That appellant was never seen carrying contraband or records to or from his residence at 926 Wilson Road and "might" instead have "maintain[ed] records . . . at a stash house, a storage facility, or in his vehicle," as appellant argues on brief, does not require a different result. Probable cause "`does not require actual knowledge. "Only the probability, and not a prima facie showing, . . . is the standard of probable cause."'" Quigley v. Commonwealth, 14 Va. App. 28, 34, 414 S.E.2d 851, 855 (1992) (quoting Wescott v. Commonwealth, 216 Va. 123, 126, 216 S.E.2d 60, 63 (1975)) (other citations omitted).

Because we conclude the affidavit underlying the warrant provided the magistrate with a substantial basis for concluding probable cause existed and, thus, that the evidence seized by the police pursuant to the search warrant was admissible, we need not consider appellant's additional argument that the good faith exception to the exclusionary rule set forth in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), does not apply.

B. SUFFICIENCY OF EVIDENCE TO PROVE CONSTRUCTIVE POSSESSION

When considering the sufficiency of the evidence on appeal in a criminal case, this Court views the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The credibility of a witness, the weight accorded the testimony, and the inferences to be drawn from proved facts are matters to be determined by the fact finder. Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). The judgment will not be set aside unless it is plainly wrong or without supporting evidence. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

Proof that appellant constructively possessed the gun found beneath his mattress was sufficient to support his conviction for possession of a firearm by a convicted felon. Blake v. Commonwealth, 15 Va. App. 706, 708-09, 427 S.E.2d 219, 220-21 (1993) (holding that principles applicable to constructive possession of drugs also apply to constructive possession of firearm).

"To support a conviction based upon constructive possession, "the Commonwealth must point to evidence of acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the defendant was aware of both the presence and character of the [contraband] and that it was subject to his dominion and control."

Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)). Possession "need not always be exclusive. The defendant may share it with one or more." Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc). Although mere proximity to the contraband is insufficient to establish possession, it is a factor that may be considered in determining whether a defendant...