Ward v. Commonwealth

• Decision Date: 21 March 2006
• Docket Number: Record No. 0441-05-2.
• Parties: Michael D. WARD v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

627 S.E.2d 520

47 Va. App. 733

Michael D. WARD v. COMMONWEALTH of Virginia.

Record No. 0441-05-2.

Court of Appeals of Virginia, Richmond.

March 21, 2006.

COPYRIGHT MATERIAL OMITTED

Mary K. Martin (Eliades & Eliades, P.C., on brief), Petersburg, for appellant.

Stephen R. McCullough, Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.

Present: ELDER, HUMPHREYS and KELSEY, JJ.

ELDER, Judge.

Michael D. Ward (appellant) appeals from his bench trial convictions for possession of cocaine with intent to distribute and possession of marijuana with intent to distribute. On appeal, he contends the trial court erroneously denied his motion to suppress, which was based on claimed deficiencies in the anticipatory warrant used to enter and search his residence. He also contends the evidence was insufficient to prove he knew the package delivered to his home contained the cocaine and marijuana and, thus, was insufficient to support his convictions. We hold the anticipatory warrant was valid and that the evidence was sufficient to support appellant's convictions. Thus, we affirm.

I. BACKGROUND

In November 2003, Evelyn Cross, a United States Postal Inspector who "handle[d] primarily drug investigations," investigated a suspicious package at the Petersburg main post office. The package was addressed to an Anna Wilson at "129 Church Street, Petersburg, VA 23803." It listed the sender as "SGT FC John W. Wilson" with a return address of "Bldg[.] 1737, Ft. Bliss, TX 79906."

Inspector Cross consulted two different postal databases to which she had access, but she was unable to find a listing for an Anna Wilson at the address on the package, 129 Church Street, or at a similar Petersburg address, 129 South Old Church Street. Cross then called the post office, where she spoke with the supervisor and a mail carrier named Shirlon Saunders.

Shirlon Saunders testified that he had been delivering mail to South Old Church Street in Petersburg for a period of about four years prior to November 2003. Church Street in Petersburg, by contrast, was not on Saunders's route. Saunders identified Michael Ward as a person staying at the residence located at 129 South Old Church Street. Saunders testified that, before he was contacted by Postal Inspector Cross in November 2003, he had on two prior occasions delivered to appellant at 129 South Old Church Street packages addressed to Anna Wilson at appellant's address and bearing the name of sender John Wilson with a return address of Building 1737, Fort Bliss, Texas.

Around November 13, 2003, Saunders saw on the desk of a supervisor in the Petersburg post office a third package addressed to Anna Wilson. At trial, Saunders identified the package admitted into evidence, which was in a "paper bag type of packaging" and sent via priority mail, as the same package he saw on the supervisor's desk on November 13, 2003. Saunders testified that the two packages addressed to Anna Wilson that he had previously delivered to appellant's address had the same kind of packaging and also were sent by priority mail. Saunders was not asked to deliver the third package, which bore the notation, "Hold." Saunders said that when he delivered appellant's mail, "most of the time [appellant would] be outside" and that he had delivered the previous two packages addressed to Anna Wilson at appellant's address directly to appellant as appellant stood on the front porch of the residence.

Inspector Cross obtained a federal search warrant and opened the package at issue on November 19, 2003. Inside the package, she found 2.075 pounds of marijuana and 2.35 ounces of cocaine. Both substances had been heat sealed, placed in boxes, and wrapped in carbon paper, which Inspector Cross identified as methods used by drug traffickers to keep the odor of the drugs from being detected by drug-sniffing dogs. Inspector Cross repackaged some of the contraband in its original wrapping. After conferring with Mail Carrier Shirlon Saunders, Inspector Cross decided to attempt a controlled delivery of the package to appellant at 129 South Old Church Street and contacted the Petersburg narcotics unit for assistance.

In anticipation of Inspector Cross's attempting to make the controlled delivery, Petersburg Narcotics Detectives Patterson and Riley sought a search warrant for appellant's residence at "129 s. old church st." (Emphasis added). The warrant listed the things to be searched for as marijuana, cocaine, paraphernalia, and records of illegal drug trafficking. The affidavit accompanying the warrant included, in the list of things to be searched for, the package addressed to Anna Wilson at "129 Church St." (Emphasis added). The affidavit stated further as follows:

Evelyn Cross, a U.S. Postal Inspector, became involved in a cocaine and marijuana investigation. A package [described in detail]... arrived in Richmond, VA on 11-13-03... [and] is addressed to: Ms. Anna Wilson, 129 Church St., Petersburg, VA. On 11-19-03 Agent Evelyn Cross applied for and received a search warrant for [the] above mentioned package[, which contained substances that were field tested and] tested positive for [over 2 pounds of] marijuana and [2.4 ounces of] cocaine. The package has been maintained in the control and custody of your affiant[, Detective Riley]. Agents from the U.S. Postal Service acting in an undercover capacity will pose as a delivery person for the post office and will attempt to deliver the package. The Petersburg Police Department working in conjunction with the U.S. Postal Service will attempt to deliver the package on today[']s date. The search warrant will only be executed on the residence if the following occurs: the package and its contents are accepted and/or the package enters the residence itself, or the police observe the package exiting the residence, or the security of the controlled samples are at risk, or if the undercover officer's safety is at risk. If none of the events listed above occur the search warrant will not be executed and will be returned to the issuing magistrate.

The affidavit did not recite any facts concerning appellant's prior acceptance of similar packages addressed to Anna Wilson at 129 South Old Church Street. The record also contains no evidence that the police officers orally provided the judge with any information concerning why they believed a nexus existed between appellant's address and the address on the package.

A circuit court judge issued the warrant on November 20, 2003, and Inspector Cross attempted the controlled delivery a few hours later. Dressed as a postal carrier, Inspector Cross approached appellant's residence and encountered him outside. She told him she was "glad he was here," "handed him the letter mail that [she] had," and then "handed [him] the package in question addressed to Ms. Anna Wilson." Appellant "stood there in front of [her] holding the package and studying it." Inspector Cross told appellant she had "attempted to deliver th[e] package at another address the previous week and the lady said it wasn't hers." Inspector Cross said she "wanted to know if Anna Wilson lived here, if the package was his, and [appellant] said it was for him." As appellant was still holding the package, Inspector Cross "made the comment that [she] was glad because [she] didn't want them to be mad at [her] for misdelivering it again," and "[she] walked away." Just as Inspector Cross was exiting the fence, appellant "call[ed] [her] back," returned to her "one of the [letters] that [she had given] him, [which was addressed to a Barbara Robinson,] ... and said that the person didn't live there. It doesn't belong here. This person doesn't live here." Appellant retained the package addressed to Anna Wilson and entered the house with it as Inspector Cross drove away in her postal vehicle.

After Inspector Cross notified the narcotics unit of what had transpired, Detectives Patterson and Riley executed the search warrant for appellant's residence. The detectives found appellant alone inside the residence and found the package, which remained unopened, on the kitchen table with the other mail. In the bottom of a dresser drawer in one of two bedrooms, the detectives found a large clear plastic "zip" that contained "62 yellow, smaller zips" that were about "an inch by [an] inch" in size. Detective Patterson testified that the smaller zips "are typically used for packaging marijuana, $10 bags, sometimes $20 bags." Beneath the mattress in the second of two bedrooms, they found $250 in U.S. currency. From appellant's person, they seized a pager. Also from the residence, the detectives took a Virginia Power bill that bore only appellant's name and the address of 129 South Old Church Street.

Following the search, Detective Riley advised appellant of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and told appellant why they were there. Appellant told Detective Riley "the package was not his" and that "[h]e first thought the package was his because he was expecting tapes." Appellant did not say from whom he was expecting tapes or give any indication that he knew the sender whose name appeared on the box.

Prior to trial, appellant moved to suppress the evidence on the ground that the warrant was facially invalid. Appellant argued the warrant and affidavit failed to provide any nexus between Anna Wilson at 129 Church Street and the residence to be searched at 129 South Old Church Street. The Commonwealth argued the warrant was saved by the fact that the package had been determined to contain drugs and the affidavit said it would only be executed on the residence named "if the recipient of the mail at that residence accepted [the package]." The trial court denied the motion to suppress, concluding "the particulars," including "the description of the contents of the box and the fact that [the search was] conditional upon [the...