COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Coleman
Argued at Richmond, Virginia
ALONZO CLAIBORNE
MEMORANDUM OPINION * BY
v. Record No. 0279-01-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
FEBRUARY 19, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
John B. Mann (Levit, Mann & Halligan, on
briefs), for appellant.
Richard B. Smith, Senior Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Alonzo Claiborne (appellant) was convicted in a bench trial
of possession with intent to distribute cocaine, in violation of
Code § 18.2-248. 1 On appeal, he contends (1) the trial court
erred in denying his motion to suppress the evidence obtained in
violation of his Fourth Amendment rights, and (2) the evidence
is insufficient to prove he intended to distribute the cocaine.
For the following reasons, we reverse appellant's conviction of
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Code § 18.2-248 provides in pertinent part: "[I]t shall
be unlawful for any person to manufacture, sell, give,
distribute, or possess with intent to manufacture, sell, give or
distribute a controlled substance."
possession with intent to distribute cocaine and remand for
resentencing on the lesser-included offense of possession of
cocaine pursuant to Code § 18.2-250.
I. BACKGROUND
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to that evidence all
reasonable inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
The trial court's judgment will not be set aside unless plainly
wrong or without evidence to support it. See Hunley v.
Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999).
So viewed, the evidence established that Officer Fred Bates
(Bates), working undercover on another assignment, observed a
group of men loitering in the parking lot of a Texaco service
station. Bates and other officers approached the men and spoke
with several of them. Bates stated he
just started a conversation [with
appellant], hey, buddy can I talk to you?
He stopped. We started talking. During the
conversation I asked him do you have any
drugs or weapons on you? He said no. I
asked if I could look in his pockets. He
said no problem. Well, he said sure,
whatever. I don't know. He agreed.
During the search, Bates found a "little ball" of what he
believed to be crack cocaine in appellant's pocket. Appellant
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struggled with Bates, and the "little ball" of crack cocaine
disappeared.
After appellant was returned to the police car and placed
inside, Bates stepped on a vial containing crack cocaine under a
7-11 napkin in the parking lot. Bates also found 7-11 napkins
in appellant's pocket. A search of appellant produced only a
"crumb" of cocaine in his pocket, $115 in cash and a cell phone.
Appellant denied that he consented to Bates' search of his
pockets or threw any drugs on the ground. The trial court
denied appellant's motion to suppress the cocaine seized finding
that appellant's initial encounter with Bates was consensual in
nature and, thus, implicated no Fourth Amendment rights. At
trial, the court agreed that no evidence proved that appellant
possessed the vial of cocaine found under the napkin in the
parking lot. However, it found that the cocaine residue in
appellant's pocket combined with $115 in cash and a cell phone
were sufficient to establish that he possessed cocaine with the
intent to distribute.
II. MOTION TO SUPPRESS
"In reviewing a trial court's denial of a motion to
suppress, the burden is upon [the defendant] to show that the
ruling, when the evidence is considered most favorably to the
Commonwealth, constituted reversible error." McGee v.
Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)
(en banc) (citation omitted). "In performing such analysis, we
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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." Id. at
198, 487 S.E.2d at 261 (citing Ornelas v. United States, 517
U.S. 690, 699 (1996)). "Evidence adduced at both the trial and
suppression hearing" is included in this Court's review of the
record. Greene v. Commonwealth, 17 Va. App. 606, 607, 440
S.E.2d 138, 139 (1994). However, "'[u]ltimate questions of
reasonable suspicion and probable cause . . . are reviewed
de novo on appeal.'" McGee, 25 Va. App. at 197, 487 S.E.2d at
261 (quoting Ornelas, 517 U.S. at 691). Similarly, we review
de novo whether a seizure occurred. See id. at 198, 487 S.E.2d
at 261.
In Iglesias v. Commonwealth, 7 Va. App. 93, 372 S.E.2d 170
(1988), we categorized police-citizen encounters as follows:
First, there are communications between
police officers and citizens that are
consensual and, therefore, do not implicate
the fourth amendment. Second, there are
brief investigatory stops which must be
based on specific and articulable facts
which, taken together with rational
inferences from these facts, reasonably
warrant a limited intrusion. Third, there
are highly intrusive, full-scale arrests
which must be based on probable cause.
Id. at 99, 372 S.E.2d at 174 (citations omitted).
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In Garrison v. Commonwealth, 36 Va. App. 298, 549 S.E.2d
634 (2001), this Court defined the first category, a consensual
encounter, the type at issue here, as:
[An] encounter [that] exists when "a
reasonable person would feel free to
disregard the police and go about his
business." "Such encounters 'need not be
predicated on any suspicion of the person's
involvement in wrongdoing,' and remain
consensual 'as long as the citizen
voluntarily cooperates with the police.'"
Id. at 306, 549 S.E.2d at 638 (citations omitted).
In the instant case, credible evidence supports the trial
court's finding that the encounter between appellant and Bates
was consensual. "[T]he trial court, acting as fact finder, must
evaluate the credibility of the witnesses [and] resolve the
conflicts in their testimony . . . ." Witt v. Commonwealth, 215
Va. 670, 674, 212 S.E.2d 293, 297 (1975). The trial court
resolved the factual dispute in favor of the Commonwealth, and
we are bound by its "findings of historical fact." See McGee,
25 Va. App. at 198, 487 S.E.2d at 261. Bates asked appellant if
he could speak with him and search his pockets. Appellant said
"no problem," and agreed to the search. Appellant walked to the
officers' car and began to empty his pockets. The officers used
no force or threats that would have led a reasonable person to
believe he was not free to leave. Additionally, the fact that
the police asked for appellant's identification did not turn
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this consensual encounter into a detention. See McCain v.
Commonwealth, 261 Va. 483, 545 S.E.2d 541 (2001).
Because the initial stop in this case was consensual, it
required no reasonable articulable suspicion. When Bates found
the "little ball" of what he believed to be crack cocaine in
appellant's pocket, and appellant attempted to run, the nature
of the encounter became non-consensual. See Buck v.
Commonwealth, 20 Va. App. 298, 303, 456 S.E.2d 534, 536 (1995)
(flight may give rise to reasonable suspicion of criminal
activity); Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000)
(flight is the "consummate act of evasion" and is suggestive of
wrongdoing). At that point, Bates had probable cause to arrest
appellant and conduct the search of his person that revealed the
residue in his pocket, $115 cash and a cell phone.
We hold that trial court did not err in refusing to
suppress the cocaine residue, cash and cell phone found in the
search of appellant.
II. SUFFICIENCY OF THE EVIDENCE/INTENT TO DISTRIBUTE
Appellant next contends that, assuming the cocaine residue
found in his pocket was discovered as a result of a proper
search, the evidence did not establish that he intended to
distribute it. We agree.
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This case is controlled by our decision in Stanley v.
Commonwealth, 12 Va. App. 867, 407 S.E.2d 13 (1991) (en banc). 2
The question before us . . . is whether
an individual actually possessing only a
residue of a controlled substance may be
convicted of possession of that controlled
substance with the intent to distribute.
Possession with intent to distribute is a
crime which requires an act coupled with
specific intent. We hold that for a
defendant to be convicted of possession of a
controlled substance with the intent to
distribute, the Commonwealth must prove that
the defendant possessed the controlled
substance contemporaneously with his intent
to distribute that substance.
Id. at 869, 407 S.E.2d at 15.
In the instant case, the evidence fails to prove that
appellant intended to distribute the cocaine residue found in
his pocket. The trial court specifically found that the
evidence failed to prove that the appellant possessed the
cocaine found in the napkin in the parking lot. Like the
appellant in Stanley, no evidence established that the quantity
of residue he possessed could be distributed. Thus, to prove
the intent to distribute, the other case facts must show the
requisite indicia of intent to distribute. While we agree that
possession of a large amount of cash while in possession of
drugs may be an indicia of sale, neither the small amount of
money, $115, nor the possession of a cell phone provides the
2
The Commonwealth concedes that the decision in Stanley, 12
Va. App. 867, 407 S.E.2d 13, controls the decision in this case.
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nexus in this case. See Servis v. Commonwealth, 6 Va. App. 507,
371 S.E.2d 156 (1988) (over $9,000 packaged with bank bands in
thousand dollar increments of fifty and one hundred dollar
bills, properly considered in determining intent to distribute).
Thus, the trial court erred in finding the evidence sufficient
to prove that appellant intended to distribute the residue found
in his pocket.
For the foregoing reasons, we reverse appellant's
conviction of possession with intent to distribute cocaine and
remand for entry of an order finding the appellant guilty of
possession of cocaine pursuant to Code § 18.2-250 and for
resentencing on the lesser-included offense.
Reversed and remanded.
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