COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Coleman
Argued at Chesapeake, Virginia
SHAWN RACHINE MAYE
OPINION BY
v. Record No. 1831-03-1 JUDGE ROBERT J. HUMPHREYS
NOVEMBER 30, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Timothy G. Clancy (Moschel & Clancy, P.L.L.C., on brief), for
appellant.
Alice T. Armstrong, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
Shawn Rachine Maye appeals his convictions, following a bench trial, for possession of a
firearm after having been convicted of a felony (in violation of Code § 18.2-308.2), possession of
a firearm while in possession of a controlled substance (in violation of Code § 18.2-308.4(A)),
and possession of cocaine with intent to distribute (in violation of Code § 18.2-248). Maye first
contends the trial court erred in finding that police executed a search warrant in compliance with
the “forthwith” requirement of Code § 19.2-56 and that it therefore erred in denying his motion
to suppress the related evidence. Maye further contends that the trial court erred in finding the
evidence sufficient to establish that he constructively possessed the firearm and the cocaine. For
the reasons that follow, we affirm Maye’s convictions.
I. Background
In accord with settled principles, we review the evidence on appeal in the light most
favorable to the Commonwealth, as the party prevailing below, granting to it all reasonable
inferences fairly deducible therefrom. Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d
826, 831 (1997) (citation omitted).
So viewed, the evidence presented below established that a “confidential, reliable
informant” advised Detective J.A. Meeks, Jr., of the Newport News Police Department, that
On May 14, 2001 . . . [the informant] had been to a motel room
during the last 72 hours where he/she observed a quantity of
cocaine that was available for sale. The informant identified the
motel Room as 149 of the Econo Lodge located at 11845 Jefferson
Avenue inside the City of Newport News. This motel room is
commonly referred to as 11845 Jefferson Avenue, Room 149,
Newport News, Virginia. The informant state[d] that while he/she
was at Room 149, he/she observed a black male known as Shawn
Maye in possession of a quantity of cocaine that was available for
sale. The informant advised . . . that Shawn Maye carries a firearm
for protection.
Based upon that information, Detective Meeks “identified Shawn Maye as Shawn Rachine
Maye,” “described as a black male,” “approximately 5’10” tall [weighing] about 180 pounds.”
Meeks obtained search warrants for the motel room and Maye’s person that same day.
Meeks executed the warrants eleven days later, during the early morning hours of May
25, 2001. Detectives Torres and Sorrell assisted Meeks during the execution of the warrant.
Detective Sorrell was the first officer to enter the motel room. Upon entry, he observed
that there were two beds in the room. Maye was “on the first bed as [he] went into the room, to
[his] right.” George P. Brooks “was on the other bed.” The beds were “set up in the room
parallel to one another.” The “only light in the room” “was a TV that illuminated the room,
which was opposite [a] nightstand” that “separate[d] the two beds.”
Upon searching the room, Detective Sorrell located a gun in the nightstand. The gun was
lying in a lower, open portion of the nightstand, “right next” to “where [Maye] was lying in bed.”
Detective Torres located digital scales containing “suspected cocaine residue” in the “side
pocket” of a “black and tan bag.” Detective Torres found the bag on the “right side” of the bed
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Maye was lying in. Torres asked Maye if the bag belonged to him. Maye stated that the “bag
was his.” Detective Meeks searched Maye’s person and located “approximately $2200.00 in
U.S. currency from his pants pocket[s].”
After the detectives read Maye his Miranda rights, Detective Meeks “asked [Maye] if he
had ever possessed the firearm.” Maye replied that “he had,” but he claimed that the gun
belonged to Brooks. Maye stated that he “would occasionally move it” “from one place to the
other when he was cleaning up.” For that reason, Maye acknowledged that the detectives would
find his fingerprints on the gun. Maye also acknowledged “he was not able to possess a firearm
because he was a convicted felon.”
With regard to the “duffel bag,” Maye confirmed that the bag belonged to him. However,
when he overheard Detectives Meeks and Torres discussing the apparent “cocaine residue” on
the scale, Maye stated “that there was no cocaine on the scale.” When the detectives placed
Maye under arrest for “possession of cocaine” and “possession of a firearm by [a] convicted
felon,” Maye was in “disbelief,” and stated: “I can’t believe you arrested me for cocaine. You
didn’t find anything.” Maye repeated these statements “[s]everal times throughout the night.”1
Detective Larry W. Taylor, also of the Newport News Police Department, was
summoned back to “that room,” by the motel manager, later that same morning. When Detective
Taylor arrived, he found the door to the room “pulled to, but it wasn’t secure.” He observed that
the room “appeared to have been searched by the Vice-Narcotics Unit,” and saw a VCR that had
“been knocked over.” The VCR had a “loose top.” Taylor looked inside the VCR and found
“cocaine in a plastic bag.”
Maye was subsequently indicted for possession of a firearm after having been convicted
of a felony, possession of a firearm while in possession of a controlled substance, and possession
1
The detectives also arrested Brooks.
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of cocaine with intent to distribute. Prior to his trial on these charges, Maye moved to suppress
the evidence, contending that: (1) the “information relied upon in obtaining the search warrant
became ‘stale’ after the warrant was issued but prior to the police executing it,” in violation of
the Fourth Amendment; and (2) the “search warrant [was not] executed forthwith” as required by
Code § 19.2-56.
During the hearing on Maye’s motion to suppress, Detective Meeks testified that he
“obtained the search warrant[s] May 14, [at] approximately 8:00 p.m.” “On May 15 and May
16” he was on “special assignment, and duty hours for the Vice-Narcotics Squad were switched
from 10:00 a.m. to 6:00 p.m. and 2:00 p.m. to 10:00 p.m. respectively” on those days. May 17
and May 18, a Saturday and Sunday, were days Meeks was “signed off duty.” “[T]hen that
following week, 19th, 20th, 21st and 22nd, [Meeks] was on assignment in Oklahoma.” When
Meeks returned on May 23, 2001, he and his fellow detectives attempted to “set up the suspect,”
but Maye was not at the “location of the search warrant.” Accordingly, the detectives returned
the following evening, “set up surveillance and waited until [they] confirmed that [Maye] was
inside” to execute the warrant. The detectives, thus, “actually executed [the warrant] in the early
morning hours of the 25th[.]”
Meeks further testified that “there were additional times that [the] reliable informant had
been to that same location and observed quantities of cocaine for sale.” Specifically, he stated
that on or near May 1, 2001, the informant advised that he or she had been at that location and
observed the cocaine. However, because the informant had observed this activity more than 72
hours prior to reporting it to Detective Meeks, Detective Meeks was “unable to obtain a search
warrant based on that information at that time.”
On cross-examination, Detective Meeks agreed that “all other information with regard to
this prior visit to this hotel room with regard to Shawn Maye, so forth, [was] exactly the same,
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i.e., it was several weeks prior to May 14th, 2001.” He further explained the police department
“practice” with regard to search warrants as follows:
Typically, the detective who obtains a search warrant will be the
detective who completes the briefing and executes the search
warrant.
Nevertheless, when he left for assignment in Oklahoma, he left the search warrants on his desk
“to be executed if work needed to be done or if [other officers] needed something to do.”
After hearing argument by the parties, the trial court held:
I think the delay has been sufficiently explained and it still falls
within the reasonable, practical reason for having the delay and it’s
not an unusual delay and I am going to deny the motion to
suppress.
During Maye’s subsequent trial, Detective Taylor testified that, prior to being called back
to the motel room on May 25, 2001, a “gentleman . . . that worked for the motel and a female
maid” “had been in there, had been into the room.” He stated that his “understanding was, [the
VCR] was knocked off, the drugs had fallen out of it and the drugs were replaced and that’s
when they called [the police].” Detective Taylor acknowledged that, “[i]n [his] judgment,” the
door to the motel room was in such a state that it “couldn’t be secured.” He also acknowledged
that no fingerprints were found on the bag of cocaine.
Pursuant to an agreement with the Commonwealth, Brooks testified on behalf of the
Commonwealth. Brooks stated that he had been living at the motel with Maye for approximately
five months prior to the “incident” and that Maye had “rented” the room. He testified that he had
purchased the gun that the detectives found in the room. Specifically, he stated that he and Maye
looked for the gun “together,” that Maye gave him the money to buy the gun, but that he made
the actual purchase because Maye did not have identification and because Brooks knew the
“people” at the store. He further testified that he carried the gun, that he kept it in his car “for it
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to be visible,” and that the gun was in the car when he and Maye would go “out or whatever.”
He also acknowledged that he had seen Maye “handling” the gun.
With regard to the VCR, Brooks testified that the VCR belonged to Maye and that he had
been with Maye when Maye had purchased it, approximately two months prior to the day the
search warrants were executed. He acknowledged that he “didn’t even know whether [the VCR]
was hooked up, really” and stated that he never “showed a movie on it,” nor saw Maye “show a
movie on it.” In response to questioning by the court, Brooks stated that he never sold drugs, but
had used drugs himself. He testified that he obtained the drugs he used from Maye.
Maye’s counsel subsequently conceded that if the trial court were to find that Maye
possessed the drugs found in the VCR, he would not argue “that’s not possession with intent to
distribute.” Certificates of analysis demonstrated that cocaine was found on the digital scale and
that the plastic bag contained “155.7 grams” of “Cocaine Hydrochloride.”
Subsequent to the close of the Commonwealth’s case, Maye’s counsel made a motion to
strike, which was denied by the trial court. Without presenting evidence, Maye’s counsel rested
his case and renewed the motion to strike, arguing that the Commonwealth had failed to establish
that Maye either actually or constructively possessed the cocaine or the gun. The trial court
disagreed, finding:
First of all, as far as the possession of cocaine in and of itself, I
think the evidence is more than sufficient. They found in his
duffel bag the scales and with comments that he made, I don’t
think there’s any question about that.
The question as to possession with intent to distribute may be a
little more difficult, but when you have, as in this case, a
co-defendant who takes the stand – and I believe he told the truth.
He simply tried to avoid saying things that would make it a little
bit more tight. It’s what you call dumb like a fox. He just simply
attempted to avoid doing what he had promised to do in exchange
for a deal with the Commonwealth taking one of the charges away
from him, in fact, when he pled guilty. His testimony was not
rebutted in any way, that is, that the VCR was that of Mr. Maye,
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that he never saw any drug with the exception of that that
mysteriously appeared on the nightstand between them, which he
assumed came from Mr. Maye. So I think the connection there is
sufficient to find the defendant guilty of the charge of possession
with intent to distribute.
As to the firearm, once again, Mr. Brooks testifies that he
purchased it because he had a discussion with Mr. Maye that they
needed a firearm because Mr. Maye had been robbed at some
point. They were living in the hotel at the time he purchased it.
They both handled it. It was in open and obvious sight at the time
that the police went into the hotel. I believe he testified he never
actually saw Mr. Maye move it, but Mr. Maye, by his own
admission to the officers, stated that it could well have his
fingerprints on it, that he had moved it around from time to time.
The Court feels the evidence is sufficient to find the defendant
guilty of that charge as well and so finds. All right.
The trial court ultimately sentenced Maye to serve five years in prison on the charge of
possession of a firearm, with three years suspended; five years on the charge of possession of a
firearm while in possession of a controlled substance; and ten years on the charge of possession
of cocaine with intent to distribute, with nine years suspended.
II. Analysis
Maye raises two contentions on appeal. First, he contends the trial court erred in refusing
to grant his motion to suppress because the police failed to execute the search warrants in
conformity with the “forthwith” requirement of Code § 19.2-56, and thus violated his Fourth
Amendment rights. Second, he argues the trial court erred in finding the evidence sufficient to
prove that he constructively possessed either the gun or the cocaine. We disagree.
A.
“In reviewing a trial court’s denial of a motion to suppress, ‘the burden is upon [the
appellant] to show that the ruling . . . 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)). We consider the evidence in the light most
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favorable to the Commonwealth, as the prevailing party below. See Commonwealth v.
Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). “‘In so doing, we must 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 that may be drawn
therefrom.’” Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)
(quoting Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988)).
Further, a defendant’s claim that evidence was seized in violation of the Fourth
Amendment presents a mixed question of law and fact that we review de novo on appeal. See
Ornelas v. United States, 517 U.S. 690, 691 (1996). Because “the requirements of the Virginia
statutes controlling the issuance of search warrants and forbidding searches without a warrant . . .
are in substance the same as those contained in the Fourth Amendment,” Kirby v.
Commonwealth, 209 Va. 806, 808, 167 S.E.2d 411, 412 (1969), in reviewing the trial court’s
determination of whether the search warrants were executed in a timely manner, we therefore
“give deference to the factual findings of the trial court and independently determine whether the
manner in which the evidence was obtained meets the requirements of [Code § 19.2-56 and] the
Fourth Amendment.” Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838
(2002); see also Turner v. Commonwealth, 14 Va. App. 737, 742, 420 S.E.2d 235, 238 (1992)
(noting that Code § 19.2-56 includes “a codification of the constitutional requirement that the
search must be conducted while probable cause continues to exist”).
Code § 19.2-56 contains two time limitations, a fifteen-day bar and a “forthwith”
requirement. The fifteen-day bar “serves to extinguish absolutely the viability of a search
warrant if not executed within fifteen days, regardless of circumstances.” Turner, 14 Va. App. at
740, 420 S.E.2d at 237. The “forthwith” requirement, on the other hand, “has an independent
substantive meaning,” id. at 742, 420 S.E.2d at 238, and is intended to “define[]the policy of the
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Commonwealth that search warrants be executed as soon as reasonably practical [and] while
probable cause continues to exist.” Id. at 740, 420 S.E.2d at 237. However, although the
language of Code § 19.2-56 does “codify[] the constitutional mandate . . . that probable cause
must [] exist at the time a search warrant is executed,” id. at 743, 420 S.E.2d at 239, the statute
“goes beyond that.” Id. at 742, 420 S.E.2d at 238. That is, we have interpreted the “forthwith”
provision as requiring something more than a mere showing of the continued existence of
probable cause: specifically, that “police officers [] execute[d] the warrant with reasonable
dispatch and without undue delay.” Id. at 743, 420 S.E.2d at 239.
Here, Officer Meeks clearly executed the search warrants within the fifteen-day period
prescribed by Code § 19.2-56. This does not, however, end our inquiry into whether the
warrants were executed in a timely manner. As we noted in Turner,
By establishing a fifteen-day limitation period in Code § 19.2-56,
the General Assembly did not intend to provide that search
warrants executed within that time would be conclusively
presumed to have been executed timely. Such an interpretation
would render the “forthwith” language of the statute meaningless,
a result that we cannot attribute to the legislature.
Id. at 742, 420 S.E.2d at 238. Accordingly, the dispositive question here is whether the officers
executed the search warrants “forthwith,” as required by Code § 19.2-56, and before probable
cause had dissipated, as required by both the Virginia statute and the Fourth Amendment.
As we explained in Turner, “forthwith” does not require that a search warrant be
executed “immediately or as soon as physically possible.” Id. (citing United States v. Wilson,
491 F.2d 724, 725 (6th Cir. 1974)). Similarly, “[i]t does not mandate that officers must
immediately execute the search warrant without regard to the circumstances that obtain.” Id.
Rather, we have interpreted “forthwith” as requiring the execution of search warrants “with
reasonable dispatch and without undue delay,” in order “‘to lessen the possibility that the facts
upon which probable cause was initially based do not become dissipated.’” Id. (quoting United
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States v. Nepstead, 424 F.2d 269, 271 (9th Cir. 1970)). Ultimately, then, “forthwith” is meant to
embody “a practical and flexible standard which must conform to the necessities of
circumstances.” Id.
Under the circumstances of this case, we find no error in the trial court’s determination
that Detective Meeks executed the warrant with “reasonable dispatch and without undue delay.”
Id. Although the ten-day delay between the issuance of the warrant and its first attempted
execution is somewhat troublesome, we noted in Turner that one relevant consideration as to
whether a warrant was executed “forthwith” is whether there are “other competing law
enforcement interests which preclude an immediate execution of the warrant.” Id. at 747 n.2,
420 S.E.2d at 241 n.2. Here, Detective Meeks testified that it was standard police department
“practice” for a warrant to be executed only in the presence of the officer who obtained the
warrant, so that the investigating officer could brief the other officers involved prior to the
search. 2 After Detective Meeks obtained the warrants on the evening of May 14, 2001, he was
on special assignment on May 15 and 16, he was “signed off duty” on May 17 and May 18, and
he was on assignment in Oklahoma on May 19, 20, 21 and 22. Detective Meeks attempted to
2
We note that there is some conflict between Officer Meeks’ testimony that it was
“standard police practice” for the police officer who obtains a search warrant to be present when
the warrant is executed, and his testimony that he left these warrants on his desk while he was in
Oklahoma in case any of the other police officers “needed something to do.” It certainly makes
sense to have the investigating officer present when a search warrant is executed whenever it is
practical to do so. Moreover, in the absence of evidence that any of the other police officers
actually had an opportunity to execute the warrants, we cannot conclude that the trial court erred
in finding that the delay had been “sufficiently explained” by Detective Meeks.
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execute the warrant immediately after his return, on May 23, 2001.3 Detective Meeks’
job-related absences constitute a “competing law enforcement interest” that prevented him from
attempting to execute the warrant until his return from Oklahoma. We agree with the trial
court’s conclusion that the eleven-day delay had been “sufficiently explained” by Detective
Meeks and that the search warrants were therefore executed as soon as reasonably practicable
under the circumstances.
In fact, in the context of a staleness challenge, we specifically have recognized that an
officer’s delay in procuring an arrest warrant for a period of “eleven” days, partly because the
officer was handling other cases or had days off, did not invalidate the warrant. Perez v.
Commonwealth, 25 Va. App. 137, 140, 486 S.E.2d 578, 580 (1997) (noting that, aside from
cases where allegations are that the warrant itself is suspect because the information on which it
rested was too old to present probable cause, “‘[c]ases in which staleness becomes an issue
arise’” when “‘the facts alleged in the warrant may have been sufficient to establish probable
cause when the warrant was issued, but the government’s delay in executing the warrant possibly
3
Because Maye was not present at the motel at that time, the officers did not execute the
warrant until the following evening. We have previously recognized that, where a search
warrant is issued for both a premises and its occupant, it may be appropriate to delay the
execution of the search warrant on the premises until the occupant is present, but only if probable
cause for both searches continues to exist. See Turner, 14 Va. App. at 747, 420 S.E.2d at 241
(holding that a search warrant was executed “forthwith” despite an eleven-day delay between the
issuance of the warrant and its execution where the warrant specified that both a resident and its
occupant were to be searched, and the warrant was executed “immediately after learning that the
described occupant had returned” to the premises). Because probable cause for this search had
not dissipated when the warrants were executed, see infra, this one-day delay would not –
standing alone – render the search untimely. See id.; see also Whitaker v. Commonwealth, 37
Va. App. 21, 553 S.E.2d 539 (2001) (holding that search warrant was executed “forthwith”
despite six-day delay between the warrant’s issuance and its execution where the defendant was
absent from the premises for the entire six-day period, the warrant was executed immediately
after the defendant returned, and the officers had previously been informed that the defendant
kept two attack dogs in the house); cf. Commonwealth v. Moss, 14 Va. App. 750, 752, 420
S.E.2d 242, 243 (1992) (holding that a search warrant was executed “forthwith” despite a
five-day delay between the issuance of the warrant and its execution where “the reason for the
delay was to permit the [] warrant to be executed concurrently with a search warrant for another
apartment in the same building”).
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tainted the search’” (quoting United States v. McCall, 740 F.2d 1331, 1336 (4th Cir. 1984))). As
set forth above, there is no evidence here that the detective’s delay in executing the warrant
resulted from anything other than “competing law enforcement interests” and/or reasonable
police investigative practices. Further, there is no evidence that the delay potentially tainted the
search.
However, the question of whether the police complied with the requirements of Code
§ 19.2-56 and the Fourth Amendment also requires a determination of whether probable cause
continued to exist at the time the warrant was executed. See Turner, 14 Va. App. at 740, 420
S.E.2d at 237 (“[T]he question whether the police officers complied with the ‘forthwith’
requirement necessarily entails a determination whether probable cause continued to exist at the
time the warrant was executed . . . .”). Under the circumstances of this case, there is no evidence
that probable cause had dissipated by the time the warrants were executed.
“‘[A] warrant based on a known presence of contraband at the premises rests . . . on the
expectation that the contraband will remain there until the warrant is executed.’” Id. at 745, 420
S.E.2d at 240 (quoting United States v. Garcia, 882 F.2d 699, 702 (2d Cir. 1989) (citing Wayne
R. LaFave, Search and Seizure 701 (1978))).
When delay occurs between the issuance and execution of a search
warrant, whether probable cause to search continues to exist at the
time the warrant is executed depends on “the facts and
circumstances of the case, including the nature of the unlawful
activity alleged, the length of the activity and the nature of the
property to be seized.”
Id. (quoting McCall, 740 F.2d at 1336).
“Probable cause, as the very name implies, deals with probabilities.
These are not technical; they are factual and practical
considerations in every day life on which reasonable and prudent
men, not legal technicians, act.” Derr v. Commonwealth, 242 Va.
413, 421, 410 S.E.2d 662, 666 (1991) (quoting Saunders v.
Commonwealth, 218 Va. 294, 300, 237 S.E.2d 150, 155 (1977)).
Probable cause exists where the totality of the circumstances set
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forth in the affidavit supports a common sense decision by the
magistrate that “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 (1983). “[P]robable cause is a fluid
concept — turning on the assessment of probabilities in particular
factual contexts — not readily, or even usefully, reduced to a neat
set of legal rules.” Id. at 232. Because it is a fluid concept based
on probabilities, the continued existence of probable cause at a
particular time is dependent upon the circumstances. So long as
probable cause continues to exist, the search will be valid. See
[United States v. Bedford, 519 F.2d 650, 655 (3d Cir. 1975)].
Id. at 744, 420 S.E.2d at 239.
Here, the warrants for the motel room and Maye’s person were issued based upon
probable cause to believe that “a quantity of cocaine that was available for sale” would be found
at Maye’s motel room. “The delay of eleven days between issuing the warrant and the search,
standing alone, did not vitiate the reasonable belief that contraband would be on the premises and
in the possession of” Maye, “the described occupant.” Id. at 746, 420 S.E.2d at 240. The nature
of the activity in which the informant observed Maye engage would lead one reasonably to
believe that the room was used exclusively for the distribution of contraband and that evidence
of such activity would still be located in the motel room when the officers conducted the search.
Indeed, the drugs were described as a “quantity” significant enough for “sale.” Further,
approximately two weeks before the issuance of the warrant, the informant advised Detective
Meeks that he/she had been “to that same location and observed quantities of cocaine for sale”
on a prior occasion. These facts reasonably suggest a continuing enterprise. In fact, we have
explicitly held that “[t]he selling of drugs, by its nature, is an ongoing activity.” Id.
Consequently, the police officers could have reasonably concluded that the contraband
remained at the motel after the informant left and remained there until the warrant was executed.
Moreover, as set forth above, “[i]t is not necessary that the facts support this conclusion beyond a
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reasonable doubt but only that they support the probability of the conclusion.” Huff v.
Commonwealth, 213 Va. 710, 717, 194 S.E.2d 690, 696 (1973).
Accordingly, we hold that under the circumstances of this case, Detective Meeks, by
waiting eleven days to execute the warrant, did not violate either the “forthwith” provision of the
Virginia statute or the Fourth Amendment. As the trial court ultimately determined, the facts
supported the reasonable inference that the drugs could still be found at the motel and/or on
Maye’s person, as well as the reasonable inference that Detective Meeks executed the warrant as
soon as reasonably practicable under the circumstances.4
B.
“When the sufficiency of the evidence in a criminal case is challenged on appeal, we
must view the evidence and all reasonable inferences fairly deducible therefrom in the light most
favorable to the Commonwealth.” Walton v. Commonwealth, 255 Va. 422, 425-26, 497 S.E.2d
869, 871 (1988) (citing Dukes v. Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383
(1984)). “Great deference must be given to the factfinder who, having seen and heard the
witnesses, assesses their credibility and weighs their testimony.” Id. at 426, 497 S.E.2d at 871
(citing Saunders v. Commonwealth, 242 Va. 107, 113, 406 S.E.2d 39, 42 (1991)). Thus, a trial
court’s judgment will not be disturbed on appeal “unless it is plainly wrong or without evidence
to support it.” Id. (citing Code § 8.01-680; Dukes, 227 Va. at 122, 313 S.E.2d at 383).
In order to convict a person of illegal possession of contraband, “proof of actual
possession is not required; proof of constructive possession will suffice.” Id. “Constructive
possession may be established when there are ‘acts, statements, or conduct of the accused or
other facts or circumstances which tend to show that the [accused] was aware of both the
4
As in Turner, “[b]ecause we hold that the officers complied with . . . Code § 19.2-56
and with the constitutional continuing probable cause requirement,” we do not address the issue
of “whether a statutory violation, without a constitutional one, requires suppression of the
evidence obtained as a result of the violation.” Turner, 14 Va. App. 748 n.3, 420 S.E.2d 242 n.3.
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presence and character of the substance and that it was subject to his dominion and control.’” Id.
(quoting Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986) (internal
quotations omitted)). “Circumstantial evidence may be sufficient to prove possession, as long as
it excludes all reasonable hypotheses of innocence flowing from the evidence.” Wells v.
Commonwealth, 32 Va. App. 775, 781, 531 S.E.2d 16, 19 (2000). Nevertheless, the “issue upon
appellate review is not whether ‘there is some evidence to support’ these hypotheses” of
innocence. Commonwealth v. Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003). “The
issue is whether a reasonable [fact finder], upon consideration of all the evidence, could have
rejected” the defendant’s theories of innocence and found him or her guilty of the charged
offenses beyond a reasonable doubt. Id.
So viewed, we note that
[a]n accused’s mere proximity to an illicit drug . . . is not sufficient
to prove possession. [Drew, 230 Va. at 473, 338 S.E.2d at 845].
In addition, ownership or occupancy of the premises where the
drug is found does not create a presumption of possession. Code
§ 18.2-250.1(A); Garland v. Commonwealth, 225 Va. 182, 184,
300 S.E.2d 783, 784 (1983). Nonetheless, these factors may be
considered in deciding whether an accused possessed the drug.
Lane v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360
(1982).
Walton, 255 Va. at 426, 497 S.E.2d at 872. Moreover, as stated above, “[p]ossession need not be
actual, exclusive, or lengthy in order to support a conviction.” Wells, 32 Va. App. at 781, 531
S.E.2d at 19. Rather, the statutes criminalize constructive or joint possession of contraband “of
any duration.” Id. (emphasis added); see also Archer v. Commonwealth, 225 Va. 416, 418, 303
S.E.2d 863, 863-64 (1983).
As it pertained to the firearm, the evidence here clearly proved, as the trial court found,
that Maye and Brooks bought the gun together and that Maye handled the gun on occasion.
Further, the gun was found within Maye’s reach, as well as within open and obvious view of
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both Maye and Brooks. Accordingly, we find no error in the trial court’s conclusion that the
evidence supported Maye’s conviction for possession of a firearm.
As to the cocaine, while we recognize that the motel door was not “secure” when the
officer returned and found the drugs inside the VCR, we must also recognize that: (1) the
officers found cocaine on the digital scales in the duffel bag that Maye admitted belonged to him;
(2) Brooks testified that the VCR belonged to Maye and that he did not know if the VCR was
ever “hooked up”; (3) Brooks testified that Maye provided him with cocaine; (4) Maye possessed
a large quantity of cash when searched by the officers; (5) the informant identified Maye to
Detective Meeks as the person related to the cocaine he or she had observed for sale in that
particular motel room; and (6) Maye made several suspicious statements to the officers, claiming
that there was no “cocaine” on the digital scales and that he should not be arrested because the
officers initially failed to “find anything.” Based upon the totality of this evidence, we find that
a reasonable fact finder could have rejected Maye’s claims that the drugs did not belong to him
and could have found that the evidence supported his conviction in this regard beyond a
reasonable doubt.
For the reasons stated above, we affirm Maye’s convictions.
Affirmed.
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Benton, J., concurring.
I disagree with the majority opinion’s conclusion that the evidence in this case satisfied
the “forthwith” requirement of Code § 19.2-56.
Code § 19.2-56 contains two time limitations for search warrants: “that the place be
forthwith searched” and that the warrant shall be voided if “not executed within fifteen days after
insurance.” As we held in Turner v. Commonwealth, 14 Va. App. 737, 420 S.E.2d 235 (1992),
the statutory requirement of “‘forthwith’ . . . has an independent substantive meaning” and
“defines the policy of the state that search warrants, which are the foremost safeguard to protect
against unreasonable searches proscribed by the Fourth Amendment, are to be executed with
reasonable dispatch.” Id. at 742, 420 S.E.2d at 238. Thus, the statute’s use of the word
“forthwith” obviously requires “a reasonable promptness, diligence or dispatch in executing a
warrant, considering the difficulties actually encountered in attempting to perform the task.”
United States v. Bradley, 428 F.2d 1013, 1016 (5th Cir. 1970). It does not countenance the
execution of the warrant at the leisure of the police or when deliberately delayed by the police
for their own purposes. Id. By construing the statute to require the warrant’s execution with
“reasonable dispatch and without undue delay,” we have held that “Code § 19.2-56 accords
police officers a limited amount of flexibility in deciding when to execute search warrants.”
Turner, 14 Va. App. at 743, 420 S.E.2d at 239.
The evidence in the record does not suggest that the delay in this case was “unavoidable,
necessary, or even desirable.” Id. The warrant was issued on May 14, 2001 and not executed
until eleven days later, on May 25, 2001. The execution of the warrant was delayed merely
because the officer who obtained the warrant was engaged in other tasks. The police department
had no policy, written or otherwise, that required the warrant to be executed by the officer who
obtained the warrant from the magistrate. The officer who obtained the warrant testified “that is
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basically the practice [he] found [when he was assigned to] Vice-Narcotics.” He also testified
that this procedure “typically” allows the officer who obtained the search warrant to be the one
who “completes the briefing and executes the search warrant.”
This informal practice of the vice-narcotics officers is nothing more than a convenience
to the officers. Indeed, the officer testified that he left “the search warrant on [his] desk” for four
days to be executed by other officers “if work needed to be done or if [the other officers] needed
something to do.” He also testified that on the night he went to execute the warrant neither he
nor any other officer “brief[ed] the problem out beforehand in its actual formal proceeding in
preparation of executing the search warrant.” The record further establishes that another officer,
who did not obtain the warrant from the magistrate, signed the warrant as the “executing
officer.” In other words, the record discloses that the convenience of the officers was in actuality
the principle that governed executing the warrant. Furthermore, nothing in this record
establishes that this informal practice has any rational relationship to the search or to good police
practice or that this informal practice “makes sense” for any law enforcement objective. Indeed,
as this record establishes, the convenience of this informal practice was subject, in fact, to being
disregarded if the other officers needed “something to do.” For these reasons, I would hold that
the evidence in this record failed to establish that the search warrants were “executed with
reasonable dispatch.” Turner, 14 Va. App. at 742, 420 S.E.2d at 238.
Oddly, we observed in Turner that the “forthwith” language in Code § 19.2-56 is merely
“directory.” 14 Va. App. at 740, 747, 748 n.3, 420 S.E.2d at 237, 241, 242 n.3. It bears noting,
however, that despite Turner’s use of the words “directory” and “directive” in describing the
forthwith requirement, Turner’s analysis leaves no doubt that the term “forthwith” is a
mandatory, not directory requirement. Id. at 740, 741, 747, 420 S.E.2d at 239, 241, 243. As
Turner holds, Code § 19.2-56 reveals the legislature intended “forthwith” to have a meaning
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independent of the fifteen-day period. Id. at 742, 420 S.E.2d at 238. The opinion also holds that
the meaning of forthwith is not only “independent,” but “substantive” as well. Id. Moreover,
compliance in executing the warrant within the fifteen-day period is mandatory, and a failure to
comply results in an invalid warrant. Id. If we were to read Turner as deeming “forthwith” to be
directory, its holding would be incongruous because in one place it would mean one statutory
requirement confers substantive rights, and the other not. Turner expressly holds that “[t]he
‘forthwith’ requirement has an independent substantive meaning.” Id.
In addition, the opinions from each jurisdiction that we found persuasive in Turner
interpreted “forthwith” in favor of it conferring substantive rights when the procedure was not
followed. Thus, we adopted the interpretation in which any delay in executing the warrant
required the government to prove that the delay was “reasonable.” Id. at 742-43, 420 S.E.2d at
238-39. We held that a reviewing court must then examine justification for and length of the
delay to decide the issue of reasonableness.
Suppression seems clearly to be the remedy when the delay is unreasonable because
Code § 19.2-56’s forthwith requirement goes to the essence of the statute -- it involves the
public’s right to be free from unreasonable searches and seizures. We have noted, however, that
“our Supreme Court has steadfastly refused to extend that rule to encompass evidence seized
pursuant to statutory violations, absent an express statutory provision for suppression.”
Troncoso v. Commonwealth, 12 Va. App. 942, 944, 407 S.E.2d 349, 350 (1991); see also Horne
v. Commonwealth, 230 Va. 512, 518-19, 339 S.E.2d 186, 191 (1986) (holding that “failure to
bring the accused forthwith before a judicial officer” did not require suppression).
For these reasons, I concur in the judgment.
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