COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Agee
Argued by teleconference
TANYIN BERLIN HOLLEY
MEMORANDUM OPINION * BY
v. Record No. 0304-01-1 JUDGE G. STEVEN AGEE
DECEMBER 27, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John C. Morrison, Jr., Judge
David H. Moyer for appellant.
Steven A. Witmer, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
Tanyin Berlin Holley ("the appellant" or "Holley") was
convicted in the Norfolk Circuit Court, sitting without a jury,
of possession of cocaine with intent to distribute, in violation
of Code § 18.2-248. He was sentenced to serve a term of four
years imprisonment and to pay a fine of $250. Holley appeals
his conviction averring that the trial court erred in (1)
denying his motion to suppress the Commonwealth's evidence
alleged to have been gathered in an illegal search in violation
of the Fourth Amendment to the United States Constitution; and
(2) finding the evidence sufficient to prove possession. For
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
the following reasons, we affirm the actions of the trial court
and Holley's conviction.
I. BACKROUND
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, only those facts necessary to a disposition of this
appeal are recited.
On January 7, 2000, Officer Delp of the Norfolk Police
Department responded to a report of domestic violence at 1216
Hillside Avenue. After arriving at the scene and investigating
the situation, Officer Delp arrested the appellant on a domestic
violence charge, which is not the subject of this appeal.
Incident to the arrest, the appellant was searched and $1,029
cash was discovered in his jacket pocket. The search also
uncovered two identical keys to the appellant's vehicle.
After reading the appellant the Miranda warnings, the
officer started a conversation with the appellant asking where
he worked. The appellant responded that "he didn't work
anywhere; he hadn't worked for awhile." The officer then asked
whether the appellant had ever been previously arrested. The
appellant informed the officer that he had previously been
arrested on a charge of possession of cocaine with intent to
distribute. When questioned about the large sum of money in his
possession, the appellant replied that some of the money was his
- 2 -
mother's and he "just had the other money." The appellant had
no explanation as to the source of the money.
After placing the appellant in his police car, Officer Delp
asked the appellant's girlfriend, the complainant of the
domestic violence charge, whether the appellant was dealing
drugs. She responded that the appellant had informed her, only
two weeks prior, that "he was dealing narcotics again." She
further informed the officer that "if he had any narcotics, it
would be in his car." At trial, the girlfriend denied making
these statements, but Officer Delp, testifying as a rebuttal
witness, affirmed that she did make the statements.
After locating the vehicle outside the apartment, Officer
Delp asked the appellant if he owned it, and the appellant
admitted it was his. The officer then asked whether anyone
other than the appellant drove the vehicle. The appellant
replied, "Hell no. No one drives my car but me." His
girlfriend had previously informed the officer that "she was not
allowed to go in [the] car." At trial, Officer Delp testified
that the girlfriend also said Holley "wouldn't allow anyone else
to drive the vehicle."
Officer Delp then asked for permission to search the
vehicle for drugs and weapons. The appellant responded, "Hell,
no, you're not searching my vehicle."
- 3 -
The officer then alerted the narcotics unit, and Officer
Joseph and his canine, "Ace," arrived on the scene. After
performing a "circle spin" ritual and circling the appellant's
vehicle, Ace alerted to the scent of narcotics at the driver's
door. Officer Joseph then opened the door for Ace who moved to
the passenger area and began scratching at a black knapsack, in
which the officers found crack cocaine. An envelope addressed
to the appellant was also found in the knapsack with the
cocaine. No other items were recovered from the vehicle.
II. THE WARRANTLESS SEARCH
The appellant's first contention on appeal is that the
trial court erred in failing to grant his motion to suppress
evidence gathered in a warrantless search of his vehicle. He
argues the police lacked probable cause to search his vehicle. 1
For the following reasons, we affirm the decision of the trial
court.
1
In his brief, the appellant presented us with the
additional question of whether the trial court erred in denying
his motion to suppress when the Commonwealth failed to establish
that exigent circumstances prevented the police officers from
obtaining a search warrant prior to searching the vehicle.
However, during oral argument, he conceded, pursuant to
Maryland v. Dyson, 527 U.S. 465 (1999), that exigent
circumstances are not required for the search of an automobile
where probable cause to search exists. We agree and find this
assignment of error to be without merit.
- 4 -
A. STANDARD OF REVIEW
"In reviewing a trial court's denial of a motion to
suppress, 'the burden is upon the [appellant] 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) (quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265
S.E.2d 729, 731, cert. denied, 449 U.S. 1017 (1980)). "Ultimate
questions of reasonable suspicion and probable cause to make a
warrantless search" involve issues of both law and fact,
reviewable de novo on appeal. Ornelas v. United States, 517
U.S. 690, 699 (1996).
"In performing such analysis, we 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, 25 Va. App. at 198, 487
S.E.2d at 261 (citation omitted). We have also recognized that
great deference should be afforded to the "peculiar fact finding
capability of the trial court" since it is "not limited to the
stark, written record," but "has before it the living witnesses
and can observe their demeanors and inflections." Satchell v.
Commonwealth, 20 Va. App. 641, 648, 460 S.E.2d 253, 256 (1995).
- 5 -
B. PROBABLE CAUSE FOR THE WARRANTLESS SEARCH
"Searches conducted without prior judicial approval are per
se unreasonable under the Fourth Amendment, subject to
exceptions allowed when exigencies require warrantless
searches." McCary v. Commonwealth, 228 Va. 219, 227, 321 S.E.2d
637, 641 (1984) (citations omitted). A recognized exception to
this general rule covers searches of most automobiles. "The
police may search an automobile [without a warrant] . . . where
they have probable cause to believe contraband or evidence is
contained." California v. Acevedo, 500 U.S. 565, 579-80 (1991).
Therefore, the warrantless search of the appellant's vehicle was
permissible if probable cause existed. We find that the police
officers acted upon probable cause.
When we review whether probable cause existed at the time
of a warrantless search, we look to "'what the totality of
circumstances meant to police officers trained in analyzing the
observed conduct for purposes of crime control.'" Powell v.
Commonwealth, 27 Va. App. 173, 176-77, 497 S.E.2d 899, 900
(1998) (quoting Hollis v. Commonwealth, 216 Va. 874, 877, 223
S.E.2d 887, 889 (1976)). "[T]he probable-cause determination
must be based on objective facts that could justify the issuance
of a warrant by a magistrate." United States v. Ross, 456 U.S.
798, 808 (1982).
- 6 -
"'Probable cause exists where "the facts and circumstances
within [the arresting officers'] knowledge and of which they had
reasonably trustworthy information [are] sufficient in
themselves to warrant a man of reasonable caution in the belief
that" an offense has been or is being committed.'" Jefferson v.
Commonwealth, 27 Va. App. 1, 12, 497 S.E.2d 474, 479 (1998)
(citations omitted). The arresting officer is permitted to act
based on probabilities, and is not required to rely upon "hard
certainties." Carson v. Commonwealth, 12 Va. App. 497, 502, 404
S.E.2d 919, 922, aff'd on reh'g en banc, 13 Va. App. 280, 410
S.E.2d 412 (1991), aff'd, 244 Va. 293, 421 S.E.2d 415 (1992).
Here, Officer Delp found a large amount of cash on the
appellant who informed the officer that he was unemployed and
could not explain the origin of the money. The appellant
admitted that he had been arrested for drug dealing in the past.
The appellant's girlfriend then informed the officer that the
appellant had recently admitted he had resumed drug dealing and
there might be drugs in his vehicle. These factors, along with
the subsequent positive alert by the trained police narcotics
canine, satisfies the probable cause requirement. See Brown v.
Commonwealth, 15 Va. App. 1, 421 S.E.2d 877 (1992) (an
informant's tip of illegal drug activity and a trained canine's
alert to the presence of narcotics found to be sufficient to
establish probable cause); see also Alvarez v. Commonwealth, 24
- 7 -
Va. App. 768, 485 S.E.2d 646 (1997). Based on the totality of
the circumstances, the amalgamation of reasonably trustworthy
factors met or exceeded the baseline to sustain a finding of
probable cause to search the appellant's vehicle.
III. SUFFIENCY OF THE EVIDENCE
The appellant also argues the trial court erred in finding
the evidence sufficient to prove he in fact possessed the drugs
found in his vehicle. For the following reasons, we affirm the
decision of the trial court.
A. STANDARD OF REVIEW
When considering the sufficiency of the evidence on appeal
in a criminal case, this Court views the evidence in the light
most favorable to the Commonwealth, granting to it all
reasonable inferences fairly deducible therefrom. See
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975). On review, this Court does not substitute its own
judgment for that of the trier of fact. See Cable v.
Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992).
Witness credibility, the weight accorded the testimony and the
inferences to be drawn from proven facts are matters to be
determined by the fact finder. See Long v. Commonwealth, 8 Va.
App. 194, 199, 379 S.E.2d 473, 476 (1989). The trial court's
judgment will not be set aside unless it appears that the
judgment is plainly wrong or without supporting evidence. See
- 8 -
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
B. THE EVIDENCE IS SUFFICIENT
"In order to convict a person of illegal possession of an
illicit drug, the Commonwealth must prove beyond a reasonable
doubt that the accused was aware of the presence and character
of the drug and that the accused consciously possessed it."
Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871
(1998).
[P]roof of actual possession, [however,] is
not required; proof of constructive
possession will suffice. 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 presence and character of the substance
and that it was subject to his dominion and
control.
Id. at 426, 497 S.E.2d at 872. "Mere proximity to the
controlled substance, however, is insufficient to establish
possession. Nevertheless, the possession need not be
exclusive." Eckhart v. Commonwealth, 222 Va. 447, 450, 281
S.E.2d 853, 855 (1981).
"Proof of constructive possession necessarily rests on
circumstantial evidence; thus, all necessary circumstances
proved must be consistent with guilt and inconsistent with
innocence and exclude every reasonable hypothesis of innocence."
- 9 -
Burchette v. Commonwealth, 15 Va. App. 432, 434, 425 S.E.2d 81,
83 (1992) (citations omitted). "However, the Commonwealth need
only exclude reasonable hypotheses of innocence that flow from
the evidence, not those that spring from the imagination of the
defendant." Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433
S.E.2d 27, 29 (1993). "Circumstantial evidence is as competent
and is entitled to as much weight as direct evidence, provided
it is sufficiently convincing to exclude every reasonable
hypothesis except that of guilt." Coleman v. Commonwealth, 226
Va. 31, 53, 307 S.E.2d 864, 876 (1983). We conclude the
evidence sufficiently proves beyond a reasonable doubt that the
defendant possessed the contraband.
The evidence in this case established that the appellant
possessed the drugs found in the search of the vehicle. The
cocaine was found inside a knapsack along with an envelope
addressed to the appellant, who was the sole owner of the
vehicle, and had in his possession, at the time of the search,
two keys to the vehicle. No indicia of ownership or use of the
knapsack by anyone other than the appellant was found in the
vehicle or elsewhere.
The appellant verified his dominion and control over his
vehicle when he stated, "No one drives the car but me." This
- 10 -
statement was collaborated by his girlfriend's statement that
"he wouldn't allow anyone else to drive the vehicle." 2
The appellant contends our holding in Burchette, 15 Va.
App. 432, 425 S.E.2d 81, negates a finding of sufficient
evidence in this case. We disagree and find Burchette
significantly distinguishable.
In Burchette, the defendant's personal identification was
scattered about the vehicle and was not enclosed in a separate
container with the drugs. In this case, by contrast, the
appellant's personal paper(s), and nothing else, was found with
the cocaine inside the knapsack.
An additional distinguishing factor is the differing proof
of control of the vehicle involved in Burchette and the case at
bar. In Burchette, only the defendant's title to the vehicle
and personal items within the car established his dominion and
control. Not only is that evidence present in this case, but
2
At trial, however, Holley's girlfriend testified that the
appellant (1) did not have a driver's license; (2) was not the
only one who drove the subject vehicle; (3) had several friends
who drove the vehicle, and (4) had not driven the vehicle over
the two days prior to his arrest. The trial court was not bound
to credit this testimony. See Carter v. Commonwealth, 223 Va.
528, 532, 290 S.E.2d 865, 867 (1982) (the trial court determines
the credibility of the witnesses and the weight of their
testimony). In addition, on appeal, we must "discard the
evidence of the accused in conflict with that of the
Commonwealth, and regard as true all [of] the credible evidence
favorable to the Commonwealth and all fair inferences that may
be drawn" from that credible evidence. Watkins v. Commonwealth,
26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998).
- 11 -
there is also the appellant's statement that he alone operated
the vehicle, which was corroborated by his girlfriend. The
totality of the evidence establishes the appellant's exclusive
dominion and control.
The Commonwealth's evidence was competent and sufficient to
prove beyond a reasonable doubt that the appellant was in
possession of the cocaine. From the evidence presented as to
the appellant's ownership, control and dominion over the
vehicle, along with his personal property found with the
cocaine, the trial court could conclude beyond a reasonable
doubt that the defendant constructively possessed the drugs with
the intent to distribute. "Although none of [the]
circumstances, standing alone, would have sufficiently proved
that defendant possessed the drugs, the facts combined to
support the finding that the narcotics discovered were subject
to defendant's informed 'dominion and control.'" Hetmeyer v.
Commonwealth, 19 Va. App. 103, 111-12, 448 S.E.2d 894, 899-900
(1994).
For these reasons, we uphold the decisions of the trial
court and affirm the appellant's conviction.
Affirmed.
- 12 -