COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Elder
Argued at Salem, Virginia
JAMES MICHAEL SELLICK
MEMORANDUM OPINION * BY
v. Record No. 2702-97-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
DECEMBER 8, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Amanda E. Shaw (Clinton R. Shaw, Jr.; Office
of the Public Defender, on brief), for
appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
James Michael Sellick (appellant) was convicted in a bench
trial of possession of cocaine in violation of Code § 18.2-250.
On appeal he contends that: (1) the trial court erred in denying
his motion to suppress evidence, and (2) the evidence was
insufficient to convict him of possession of cocaine. Finding no
error, we affirm.
I.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
S.E.2d 677, 678 (1997). So viewed, the evidence established that
on December 11, 1996, Officer R.A. Cook (Cook) was on patrol in
the City of Lynchburg. At approximately 12:30 a.m., Cook
observed a car stopped in the travel lane of 15th Street. A man
was leaning into the passenger side of the car. There were no
other cars on 15th Street at that time; however, there had been
"heavy traffic" that night.
Cook circled the block, which took approximately fifteen to
twenty seconds. When he returned, the car remained in the same
position. As Cook approached the car from behind, the pedestrian
stood up and the car drove down the street. Cook followed the
car for approximately three blocks at which time he stopped it
for a violation of Code § 46.2-888. 1
1
Code § 46.2-888 provides:
No person shall stop a vehicle in such
manner as to impede or render dangerous the
use of the highway by others, except in the
case of an emergency, an accident, or a
mechanical breakdown. In the event of such
an emergency, accident, or breakdown, the
emergency flashing lights of such vehicle
shall be turned on if the vehicle is equipped
with such lights and such lights are in
working order. If the driver is capable of
doing so and the vehicle is movable, the
driver may move the vehicle only so far as is
necessary to prevent obstructing the regular
flow of traffic; provided, however, that the
movement of the vehicle to prevent the
obstruction of traffic shall not relieve the
law-enforcement officer of his duty pursuant
to § 46.2-373. A report of the vehicle's
location shall be made to the nearest
law-enforcement officer as soon as
practicable, and the vehicle shall be moved
from the roadway to the shoulder as soon as
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The driver of the car identified himself as "Mr. Tabor" and
he consented to a search of the car. Tabor, appellant, and a
third occupant were asked to step out of the vehicle. Officer
D.M. Bernaldo (Bernaldo), who was assisting Cook, asked appellant
for permission to search him for weapons. Appellant consented.
During the pat-down search, Bernaldo felt a small "device"
in appellant's pocket. By its size and shape, Bernaldo
recognized the device as a pipe of the type used to smoke drugs
and removed it from appellant's pocket. Appellant admitted to
having smoked marijuana in the pipe two days earlier. An
analysis of the pipe's contents showed it contained both cocaine
and marijuana residue.
II.
Appellant first argues that Cook did not have a reasonable
articulable suspicion to justify the stop of Tabor's car. He
contends that there was no violation of Code § 46.2-888 because
there was no other traffic on the road at the time of the stop.
"`[W]hen the police stop a motor vehicle and detain an
occupant, this constitutes a seizure of the person for Fourth
Amendment purposes.'" Logan v. Commonwealth, 19 Va. App. 437,
441, 452 S.E.2d 364, 367 (1994) (quoting Zimmerman v.
possible and removed from the shoulder
without unnecessary delay. If the vehicle is
not promptly removed, such removal may be
ordered by a law-enforcement officer at the
expense of the owner if the disabled vehicle
creates a traffic hazard.
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Commonwealth, 234 Va. 609, 611, 363 S.E.2d 708, 709 (1988)). "A
police officer may conduct an investigatory stop of a vehicle
when he or she has an `articulable and reasonable suspicion that
. . . either the vehicle or an occupant is otherwise subject to
seizure for violation of law.'" Commonwealth v. Thomas, 23 Va.
App. 598, 610, 478 S.E.2d 715, 721 (1996) (quoting Delaware v.
Prouse, 440 U.S. 648, 663 (1979)). "Reasonable suspicion" is more
than a "mere hunch" but less than "proof of wrongdoing by a
preponderance of the evidence." Id. at 610-11, 478 S.E.2d at 721
(citing United States v. Sokolow, 490 U.S. 1, 7 (1989)).
In the instant case, the evidence was undisputed that Cook
observed Tabor's vehicle stopped in the travel lane of a city
street, a possible violation of Code § 46.2-888 unless one of the
enumerated statutory exceptions applied. Appellant's argument
that there must be an actual impediment to existing traffic to
justify the officer's investigative stop is without merit. The
statutory language prohibits stopping in a manner that creates a
2
dangerous situation. A defendant's stopping in a traffic lane
need not cause actual harm to another person or property for Code
2
The trial court so found:
And the idea is so if traffic comes along you
don't render the roadway dangerous or impede
the progress. So when he's stopped in the
middle of the travel portion of the highway
for the period of time described, he's
stopped so as to impede. Now, whether or not
the officer ticketed him or not, he could
pull him over and talk to him about that.
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§ 46.2-888 to apply. See Lawrence v. Commonwealth, 20 Va. App.
653, 657, 460 S.E.2d 259, 261 (1995) (noting that the defendant's
driving behavior is not required to harm another person for the
habitual offender provisions of the Code to apply). Thus, the
officer had a reasonable suspicion upon which to make the initial
stop of the vehicle, and the trial court did not err in denying
appellant's suppression motion.
III.
Appellant next argues that the Commonwealth's evidence
failed to prove that he knew about the presence and character of
the cocaine residue in the pipe. He contends that his statement
to Officer Bernaldo that he smoked marijuana two days prior to
the seizure of the pipe excludes the possibility that he was
aware of the presence of the cocaine found in the pipe. We
disagree.
"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).
"Proof of possession of contraband, by itself, gives rise to the
inference that the defendant knew its character." Hamilton v.
Commonwealth, 16 Va. App. 751, 754, 433 S.E.2d 27, 29 (1993).
In the instant case, appellant had actual possession of the
pipe containing the cocaine residue. He admitted ownership of
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the pipe and that he had used it to smoke illegal drugs two days
earlier. The trial court could conclude from his admission that
he owned the pipe and had used it to smoke marijuana, that he had
also used it to smoke cocaine, and that the cocaine residue in
the pipe was his. The trial court was not required to believe
appellant's self-serving statement that the only drug he was
aware of in the pipe was marijuana. See Marable v. Commonwealth,
27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998) ("In its role
of judging witness credibility, the fact finder is entitled to
disbelieve the self-serving testimony of the accused and to
conclude that the accused is lying to conceal his guilt.").
For the foregoing reasons, we affirm.
Affirmed.
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