COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons and Frank
Argued at Chesapeake, Virginia
RAMONDO D. FOGG
OPINION BY
v. Record No. 0382-99-1 JUDGE JERE M. H. WILLIS, JR.
MARCH 7, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
Robert E. Long (Robert E. Long & Associates,
Ltd., on briefs), for appellant.
Virginia B. Theisen, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his convictions of possession with intent to
distribute cocaine, in violation of Code § 18.2-248, and
possession with intent to distribute marijuana, in violation of
Code § 18.2-248.1, Ramondo D. Fogg contends that the trial court
erred in denying his motion to suppress evidence found in the
search of the vehicle he was driving, because (1) as bailee of
the vehicle, he had a reasonable expectation of privacy and
therefore had standing to object to the search, (2) the police
lacked a reasonable and articulable suspicion of criminal
activity justifying the stop, and (3) the investigative stop
should have been abandoned when the officers realized that the
passenger in the vehicle was not the juvenile for whom they were
searching. Because we find that the stop was valid, that
further investigation was justified, and that the police had
proper consent to search the vehicle, we affirm the judgment of
the trial court.
I. Background
"Ultimate questions of reasonable suspicion and probable
cause . . . involve questions of both law and fact and are
reviewed de novo on appeal. . . . [We are, however,] bound by
the trial court's findings of historical fact unless 'plainly
wrong' or without evidence to support them . . . ." McGee v.
Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261
(1997) (en banc).
On August 5, 1998, Fogg was driving an Acura with Tamara
Hogge as a passenger. Hogge's grandmother owned the vehicle and
had given Hogge permission to use it. Earlier that morning,
Hampton police had received a report that a seventeen-year-old
runaway, C.C., had been spotted in the Buckroe area of Hampton.
Hampton Police Officers Schaeffer and Butler, searching for
C.C., stopped the Acura when Officer Schaeffer observed that
Hogge fit C.C.'s description.
Officer Schaeffer asked Hogge to exit the vehicle, so that
the two officers could conduct the investigation separately.
When Hogge exited the vehicle, Officer Schaeffer noticed that
she was nervous and attempted to conceal a large sum of cash
from his view. He asked her name, and when she responded, he
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recognized her from a previous arrest. When asked about the
cash, Hogge replied that the money belonged to Fogg and that he
had given it to her because a warrant for his arrest was
outstanding. Officer Schaeffer learned that Hogge's grandmother
owned the vehicle and that she had given Hogge permission to use
it. Hogge gave the officers permission to search the vehicle
and signed a consent form to that effect.
While Officer Schaeffer spoke with Hogge, Officer Butler
questioned Fogg about his identity. Fogg told Officer Butler
that he did not have a driver's license, but that he was on his
way to the DMV to get a new one. He initially gave the officer
a false name and a false social security number. A computer
check immediately disclosed this falsehood. Fogg later
admitted, after the search, that there might be a warrant
outstanding for his arrest. 1
Searching the vehicle pursuant to Hogge's consent, Officer
Schaeffer found a green book bag containing marijuana, a roll of
plastic bags, an electronic scale, and crack cocaine. When
questioned about the drugs and paraphernalia, Fogg admitted
giving the police a false identification. He also admitted that
the book bag was his and stated that Hogge had no knowledge of
its contents.
1
There was, in fact, an outstanding warrant for Fogg's
arrest, for his failure to appear on a prior matter.
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At the suppression hearing, Officer Schaeffer recalled no
objection by Fogg to the search of the Acura. Officer Butler
was not asked whether Fogg consented. Fogg testified that he
objected to both officers. He testified that Hogge's
grandmother had given him permission to use the vehicle. The
trial court denied the motion to suppress, ruling that the
officers had proper consent to search the vehicle, that Fogg
lacked standing to object to the search, and that Hogge's
statement to Officer Schaeffer that a warrant was outstanding
for Fogg's arrest, coupled with Fogg's provision of false
information to Officer Butler, required the officers to
investigate further.
II. The Investigative Stop
Fogg concedes that the initial stop of his vehicle was
lawful. The officers were investigating a report of a missing
juvenile who fit Hogge's description. He contends, however,
that the only reasonable and articulable suspicion possessed by
the officers was based upon the search for C.C. and that as soon
as Officer Schaeffer realized that Hogge was not C.C., the
officers should have abandoned the stop.
"A consensual encounter can follow a legitimate detention."
Rettinger v. Commonwealth, 29 Va. App. 724, 730, 514 S.E.2d 775,
778 (1999) (en banc). Officer Schaeffer testified that Hogge
was free to go after he determined that she was not C.C.
However, while determining that Hogge was not C.C., the officers
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became properly suspicious of criminal activity by Fogg. A new
detention may follow a completed detention when the police have
acquired additional information. See Jackson v. Commonwealth,
22 Va. App. 347, 353, 470 S.E.2d 138, 141 (1996).
When Officer Schaeffer inquired about the large sum of
money Hogge was carrying, she stated that it belonged to Fogg
and that he had given it to her because of an outstanding
warrant for his arrest. While Officer Schaeffer was questioning
Hogge, Fogg gave false information to Officer Butler. Thus,
information acquired by the officers during the valid initial
detention gave them a further "reasonable and articulable
suspicion" of criminal activity on Fogg's part, justifying
further detention and investigation.
III. Reasonable Expectation of Privacy by Fogg
Fogg next contends that he possessed a reasonable
expectation of privacy in the Acura and that the search of the
Acura was invalid because it was conducted without his consent.
He testified at trial that Hogge's grandmother gave him
permission to drive the Acura and that the officers sought
Hogge's consent to search the vehicle only after he denied
consent to each officer.
Fogg argues on brief that the trial court erred in
admitting Officer Schaeffer's testimony that Hogge consented to
the search. Although he objected to that testimony at trial, he
did not assign it as error on appeal. Thus, he is precluded
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from arguing now that the testimony should not have been
admitted. See Rule 5A:12.
Fogg argues further that the Commonwealth did not call
Hogge or her grandmother as witnesses. He made no attempt to
proffer testimony by either woman to corroborate his testimony.
He cannot argue now that they could have settled the issue of
who had permission to drive the vehicle and to give consent for
its search. See Rule 5A:18; Zelenak v. Commonwealth, 25 Va.
App. 295, 302, 487 S.E.2d 873, 876 (1997).
Fogg testified that he had sole permission to drive the
vehicle and that he refused consent to its search. The police
officers testified that Hogge told them she had permission to
use the car and consented to the search. Officer Schaeffer did
not recall asking for or being refused consent to search by
Fogg. Officer Butler was not questioned about whether Fogg
consented. "The credibility of the witnesses and the weight
accorded the evidence are matters solely for the fact finder who
has the opportunity to see and hear that evidence as it is
presented." Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455
S.E.2d 730, 732 (1995). The trial court determined that Hogge
had permission to use the car and that her consent legitimized
the search, regardless of whether Fogg objected. The record
supports this determination.
Fogg's standing to object to the search was based not upon
his physical relationship to the vehicle, but upon whether he
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had "lawful and exclusive possession and control thereof
. . . ." Delong v. Commonwealth, 234 Va. 357, 363, 362 S.E.2d
669, 672 (1987). At best, he shared possession and control of
the vehicle with Hogge. See Hardy v. Commonwealth, 17 Va. App.
677, 681, 440 S.E.2d 431, 437 (1994).
Hogge gave the officers permission to search the vehicle.
The vehicle was her grandmother's, and she had permission to use
and control it. Thus, "the facts available to the officer at
[the time of the search] . . . 'warrant[ed] a man of reasonable
caution in the belief that the consenting party had authority
over the premises.'" Illinois v. Rodriquez, 497 U.S. 177, 188
(1990) (citation omitted). At no time during the stop did Fogg
assert that he had a right to the car superior to Hogge's.
"Even [if Fogg] had standing as a bailee to object to the
officer's searching the vehicle[], the search was nevertheless
valid because the []bailor['s immediate bailee] . . . consented
to the search." Hardy, 17 Va. App. at 681, 440 S.E.2d at 437.
The judgment of the trial court is affirmed.
Affirmed.
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