COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Senior Judge Cole
Argued at Richmond, Virginia
SHANNON DETRICK CASON
OPINION BY
v. Record No. 2331-99-1 JUDGE LARRY G. ELDER
JULY 11, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
H. Thomas Padrick, Jr., Judge
Richard C. Clark, Senior Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Shannon Detrick Cason (appellant) appeals from his jury
trial convictions for one count each of statutory burglary,
possession of burglary tools, and grand larceny. On appeal, he
contends the trial court erroneously denied his motion to
suppress items seized during a search of his moped. He argues
no evidence established that, at the time of his arrest, he had
been a "recent occupant" of the moped, as required to justify a
warrantless search of the moped incident to arrest. We hold
that the circumstantial evidence was sufficient to establish
appellant's "recent occupancy" of the moped and that, for this
reason, the search did not violate the Fourth Amendment.
Therefore, we affirm appellant's convictions.
I.
FACTS
On November 11, 1998, Virginia Beach Police Officer William
Matos responded to a call of "shots [being] fired" into the air
by "a young black male." When he arrived at the scene, he
observed "two subjects that matched the description on the call
that we received." Appellant was one of those two subjects.
When Matos first arrived, he saw appellant "coming around [a
small] corner and just standing there" with another person next
to a fence. Appellant was holding a motorcycle helmet, but
Matos did not see a motorcycle or moped. Officer Matos told
appellant "what was going on and why he was there and that [he]
need[ed] to pat [appellant] down for weapons." Appellant "said,
Okay." Matos patted appellant down and recovered a pocketknife
from his pocket. At some point after Matos arrived, a "third
subject" came out of an apartment building and joined appellant
and his companion.
Thereafter, Matos learned of an outstanding "pick-up order
from juvenile court" for appellant. Matos took appellant into
custody on the order and placed him in handcuffs. Officer R.J.
Michael then arrived on the scene. As Matos and Michael were
walking appellant toward Michael's vehicle, appellant said,
"Hold on. I need to give my moped to my friend. My moped is in
the yard." After putting appellant in the back seat of
Michael's vehicle, Matos asked appellant where the moped was
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located. Appellant responded that it was in the backyard, "not
more than twenty-five, thirty feet from this yard." Matos also
said the distance from where appellant was "in the back seat of
the car to the back yard where the moped was brought out from
[was] approximately fifty to seventy-five feet."
Matos "called [to] one of [appellant's] friends and said,
Hey, does he have a moped in the back yard? The guy said, Yes,"
retrieved the moped and brought it to Officer Matos. When
retrieving the moped, appellant's friend went in "the same
general direction" from which appellant had come when Matos
first saw appellant approaching the scene. Matos did not see
appellant with the moped and first saw it when appellant's
friend retrieved it and brought it to Matos.
Matos began searching the moped without asking appellant
for permission. When Matos had trouble opening the moped's
under-seat "compartment," he asked appellant for help, and
appellant told him how to open it. Inside the compartment,
Matos found a flashlight, pry bar, and an old coin. Matos said
he searched the compartment because the original call to which
he responded was for "shots fired." He testified that for his
own safety and the safety of the citizens in the area, he wanted
to make sure there was no gun in appellant's moped before he
turned it over to appellant's friend. Appellant originally said
the moped belonged to him, but when Matos asked him if he was
sure he wanted Matos to give the moped to the other person,
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appellant said, "yeah, that it was partly his [friend's]
anyway," because he and the friend had each paid for one-half
the moped.
Appellant was charged with statutory burglary, possession
of burglary tools, and grand larceny from Dennis Wyand. 1
Prior to trial, appellant moved to suppress the items
seized from the moped. He argued that the
"search-incident-to-arrest" exception to the warrant requirement
did not apply because the evidence did not establish appellant's
recent occupancy of the moped. Appellant also argued that he
did not consent to the search and that the search exceeded the
scope of the original pat-down of appellant for weapons. The
prosecutor argued that appellant's possession of the motorcycle
helmet and his admission that the moped was his were sufficient
to prove he was a recent occupant. He also argued that exigent
circumstances justified the search in light of the fact that
Officer Matos responded to a shots fired complaint and that
appellant fit the description of the shooter.
1
Appellant also was indicted for two additional counts of
grand larceny, one based on the theft of a firearm belonging to
Tamela Wyand and the other on the theft of other property from
Tamela Wyand having a value of $200 or more. The trial court
granted appellant's motion to strike the evidence on the grand
larceny charge involving the firearm, and the jury acquitted
appellant of the grand larceny of other property from Tamela
Wyand.
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The trial court denied the motion to suppress, ruling,
inter alia, that the evidence established appellant was in
recent possession of the moped.
II.
ANALYSIS
At a hearing on a defendant's motion to suppress, the
Commonwealth has the burden of proving that the challenged
action did not violate the defendant's constitutional rights.
See Simmons v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656,
659 (1989). On appeal, we view the evidence in the light most
favorable to the prevailing party, here the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Commonwealth v. Grimstead, 12 Va. App. 1066,
1067, 407 S.E.2d 47, 48 (1991). "[W]e are bound by the trial
court's findings of historical fact unless 'plainly wrong' or
without evidence to support them[,] and we give due weight to
the inferences drawn from those facts by resident judges and
local law enforcement officers." McGee v. Commonwealth, 25 Va.
App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing
Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657,
1663, 134 L. Ed. 2d 911 (1996)). However, we review de novo the
trial court's application of defined legal standards such as
probable cause and reasonable suspicion to the particular facts
of the case. See Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663.
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Pursuant to Chimel v. California, 395 U.S. 752, 89 S. Ct.
2034, 23 L. Ed. 2d 685 (1969), an arresting officer may
"search the person arrested in order to
remove any weapons that the latter might
seek to use in order to resist arrest or
effect his escape. . . . In addition, it is
entirely reasonable for the arresting
officer to search for and seize any evidence
on the arrestee's person in order to prevent
its concealment or destruction. And the
area into which an arrestee might reach in
order to grab a weapon or evidentiary item
must, of course, be governed by a like
rule."
Glasco v. Commonwealth, 257 Va. 433, 437, 513 S.E.2d 137, 139
(1999) (quoting Chimel, 395 U.S. at 763, 89 S. Ct. at 2040).
In the years following Chimel, the Court recognized the
difficulty in applying its holding to cases involving the search
of a vehicle incident to arrest. See id. As a result, in New
York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 68 L. Ed. 2d 768
(1981), the Court "established a 'bright-line' rule to govern
such searches: 'when a policeman has made a lawful custodial
arrest of the occupant of an automobile, he may, as a
contemporaneous incident of that arrest, search the passenger
compartment of that automobile.'" Glasco, 257 Va. at 437-38,
513 S.E.2d at 139-40 (quoting Belton, 453 U.S. at 460, 101
S. Ct. at 2864 (footnote omitted)). Such a search may encompass
"any containers found within the passenger compartment,"
including "closed or open glove compartments, consoles, or other
receptacles." Belton, 453 U.S. at 460 & n.4, 101 S. Ct. at 2864
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& n.4. The Court also has made clear that the arrestee need not
be in the vehicle at the time of the arrest or incident search.
See Glasco, 257 Va. at 438, 513 S.E.2d at 140. Pursuant to
Belton, "'officers may conduct valid searches incident to arrest
even when the officers have secured the suspects in a squad car
and rendered them unable to reach any weapon or destroy
evidence.'" Id. at 439, 513 S.E.2d at 140 (quoting United
States v. Willis, 37 F.3d 313, 317 (7th Cir. 1994)). As long as
the arrestee is the "'recent occupant'" of the vehicle searched,
the search does not violate the Fourth Amendment. Id. at 437,
513 S.E.2d at 139 (quoting Belton, 453 U.S. at 460, 101 S. Ct.
at 2864). Finally, the Virginia Supreme Court has held that an
arrestee is the "recent occupant" of a vehicle even if the
police officer does not initiate contact until after the
arrestee has left his vehicle and regardless of whether the
arrestee was aware of the officer's presence prior to exiting
the vehicle. See id. at 440-41, 513 S.E.2d at 141-42
(recognizing a split of authority in that "[a] number of
jurisdictions have held that an arrestee is an occupant of a
vehicle only when the police officer arrests or at least
initiates contact with the defendant while the defendant is
inside the automobile"). Therefore, the only prerequisites to
the lawful search of an automobile incident to arrest are that
the search is contemporaneous with the arrest and the arrestee
is a recent occupant of the vehicle. See Glasco v.
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Commonwealth, 26 Va. App. 763, 773, 497 S.E.2d 150, 154 (1998),
aff'd, 257 Va. 433, 513 S.E.2d 137 (1999).
Appellant contends the evidence is insufficient to
establish his "recent occupancy" of the moped because Officer
Matos did not see appellant "occupying" or operating the moped
and established, at most, his joint ownership of the moped. We
disagree.
Any fact which may be proved with direct evidence also may
be established with circumstantial evidence. See Stultz v.
Commonwealth, 6 Va. App. 439, 442-43, 369 S.E.2d 215, 217
(1988). However, when proof of guilt is based on circumstantial
evidence, the evidence as a whole must exclude all reasonable
hypotheses of innocence flowing from it. See Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
Here, although Officer Matos did not see appellant on the moped
as he approached the scene, the circumstantial evidence
established that appellant had been in recent possession of the
moped. Matos saw appellant, who was carrying a motorcycle
helmet, approach from the location in a nearby yard where
appellant later reported the moped was parked. Appellant
described the location of the moped, indicated the moped was his
and said he needed to give it to his friend, who shared
ownership of the moped. Matos then observed one of appellant's
friends retrieve the moped from the location where appellant had
reported it was parked. The only reasonable hypothesis flowing
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from this evidence is that appellant not only owned the moped
but that he had been in recent possession of it. He was
carrying a motorcycle helmet, knew the moped's location, and
voiced a need to transfer possession to his friend, the moped's
co-owner. In light of these facts, we hold the evidence
supported the trial court's finding that appellant was in recent
possession, thereby justifying Officer Matos' search of the
moped incident to appellant's arrest.
For these reasons, we affirm appellant's convictions.
Affirmed.
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