COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Chafin
UNPUBLISHED
Argued at Chesapeake, Virginia
TRAVIS LANARDA BAILEY
MEMORANDUM OPINION* BY
v. Record No. 0463-13-1 JUDGE ROBERT J. HUMPHREYS
APRIL 15, 2014
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
H. Vincent Conway, Jr., Judge
Charles E. Haden for appellant.
Lauren C. Campbell, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Travis Lanarda Bailey (“Bailey”) appeals his convictions by the Newport News Circuit
Court (the “trial court”) for possession of marijuana with intent to distribute in violation of Code
§ 18.2-248.1 and possession of a firearm while simultaneously possessing with intent to
distribute a controlled substance in violation of Code § 18.2-308.4(C). Bailey’s first assignment
of error is that the trial court improperly denied his motion to suppress the evidence because he
only consented to a search of his home after he was “overborne by police threats” to “take away
his children and put them in foster care,” thereby making his consent involuntary and
unconstitutional. Bailey’s second assignment of error is that the evidence is insufficient to
support his firearm-related conviction because the Commonwealth failed to prove he had “actual
or constructive possession of a working firearm.” For the reasons that follow, we affirm Bailey’s
convictions.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. MOTION TO SUPPRESS
The Newport News Police Department responded to a domestic disturbance at Bailey’s
apartment after Bailey himself called the police. When the police arrived, Bailey invited the
three responding officers inside. Immediately upon entering, the police smelled the strong odor
of marijuana. Bailey admitted that he “had just smoked some.” The police detained and
Mirandized all the adults in the apartment. While doing a protective sweep of the apartment, the
police discovered an empty box of ammunition in plain sight. Bailey confirmed that there was a
gun present in the home and offered to show it to the police, which he did. Officer Groom asked
Bailey if there was any marijuana in the house and if he would give the police consent to search
the apartment. After Bailey refused to give consent to search, Officer Groom explained that they
could get a search warrant to search based on the odor of marijuana, or Bailey could speed up the
process by signing a consent form which would be delivered momentarily. Bailey, who “was
getting impatient” waiting for the consent form, “on his own volition,” took the officer to his
bedroom closet and showed him “a shoe box and a jar, a mason jar, full of suspected marijuana.”
The officers did not start searching Bailey’s home for contraband until after Bailey had formally
signed the consent form at 9:46 a.m.—less than twenty minutes after he was first Mirandized.
After the consent form was signed, the police searched the apartment and found “a child’s
backpack in his closet that contained another Ziploc bag of suspected marijuana,” a box for a
digital scale, and sandwich bags.
Before his bench trial, Bailey moved to suppress the Commonwealth’s evidence,
asserting that the search of his home violated the Fourth Amendment because he involuntarily
gave his consent. Specifically, he asserted that he only consented to the search because the
police threatened to arrest all the present adults and call social services and have his children
placed in foster care.
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The parties disagreed about whether the discussion about the fate of Bailey’s children
occurred before or after Bailey consented to the search. Bailey testified that it preceded his
consent, and the police raised it as purely a coercive tactic. The three police officers recalled that
any discussion about Bailey’s children followed their discovery of the contraband and Bailey’s
resulting arrest, and therefore could not have influenced his consent. The trial court concluded
that because the police never actually contacted social services and the children were never
removed from the home, the officers’ remarks about calling social services were likely intended
to persuade Bailey to consent to the search and probably occurred before he signed the consent
form. However, the trial court determined that even if the police made remarks about calling
social services intending to persuade Bailey to consent to a search, those statements alone were
insufficient to make Bailey’s consent legally “involuntary.” Specifically, the trial court noted
that “to merely make the statement without more that [sic] we’re going to have to take the
children, we’re going to have to take everyone in this house, I do not think that’s sufficient to
make a consent to search involuntary from a legal basis.” Consequently, the trial court ruled that
Bailey’s consent to the search was voluntary and not coerced by the police, and therefore denied
his motion to suppress.
On appeal, Bailey argues that the trial court improperly denied his motion to suppress the
Commonwealth’s evidence and reasserts his argument that he only consented to the search of his
home after he was “overborne by police threats” to take his children away if he did not comply
with the officers’ request. This Court reviews “‘a trial court’s denial of a defendant’s motion to
suppress . . . de novo when the defendant claims that the evidence sought to be suppressed was
seized in violation of the Fourth Amendment.’” Knight v. Commonwealth, 61 Va. App. 297,
305, 734 S.E.2d 716, 720 (2012) (quoting Glenn v. Commonwealth, 275 Va. 123, 130, 654
S.E.2d 910, 913 (2008)). While this Court “review[s] de novo the trial court’s application of
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defined legal standards such as probable cause and reasonable suspicion to the particular facts of
the case,” Hayes v. Commonwealth, 29 Va. App. 647, 652, 514 S.E.2d 357, 359 (1999), its
review is “‘bound by the trial court’s findings of historical fact unless plainly wrong or without
evidence to support them,’” Knight, 61 Va. App. at 305, 734 S.E.2d at 720 (quoting McGee v.
Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997)).
The Fourth Amendment protects “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.
Warrantless searches and seizures in a person’s home are presumptively unreasonable. Glenn,
275 Va. at 130, 654 S.E.2d at 913 (citing Payton v. New York, 445 U.S. 573, 586 (1980)).
However, a general exception to that rule is if a party voluntarily consents to the search. Id.
(citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). For consent to be valid it must be
“‘freely and voluntarily given,’” and the burden rests with the Commonwealth to demonstrate a
lack of duress. Deer v. Commonwealth, 17 Va. App. 730, 734-35, 441 S.E.2d 33, 36 (1994)
(quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968)). Voluntariness is a question of
law that requires an independent evaluation of the evidence on appeal to determine whether
consent was voluntary. See Hill v. Commonwealth, 52 Va. App. 313, 319, 663 S.E.2d 133, 136
(2008). However, this Court “must give ‘deference to the factual findings of the trial court’ and
‘independently determine’ whether those findings satisfy the requirements of the Fourth
Amendment.” Kyer v. Commonwealth, 45 Va. App. 473, 479, 612 S.E.2d 213, 217 (2005)
(quoting Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464 (2003)).
The United States Supreme Court has held that “the traditional definition of
voluntariness” applies to consent for searches. Schneckloth, 412 U.S. at 229 (holding that the
traditional standard for “voluntariness” as it applies to confessions, applies to consent for
searches). The pertinent question is whether the consent was “‘the product of an essentially free
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and unconstrained choice by its maker, or whether the maker’s will was overcome and his
capacity for self-determination critically impaired.’” Hill, 52 Va. App. at 319, 663 S.E.2d at 136
(quoting Novak v. Commonwealth, 20 Va. App. 373, 386-87, 457 S.E.2d 402, 408 (1995)). If
the defendant’s will was “overborne,” the consent cannot be deemed the product of free will and
is consequently invalid. Id. at 318, 663 S.E.2d at 135-36. Conversely, “‘[v]oluntariness is not
equated with the absolute absence of intimidation.’” Id. at 319, 663 S.E.2d at 136 (emphasis
added) (quoting United States v. Pelton, 835 F.2d 1067, 1072 (4th Cir. 1987)); see also United
States v. Braxton, 112 F.3d 777, 780 (1997) (“The mere existence of threats, violence, implied
promises, improper influence, or other coercive police activity, however, does not automatically
render a confession involuntary.”). Rather, a “‘finding of coercion and involuntariness must be
based upon a careful consideration of the totality of the circumstances,’” because “‘the degree of
pressure necessary to crush one’s will varies with the individual.’” Id. (quoting Ferguson v.
Boyd, 566 F.2d 873, 877 (4th Cir. 1977)).
Our Supreme Court has held that threats to prosecute a family member may render a
confession involuntary—however, it is merely one factor that courts must consider when
evaluating all the evidence relevant to voluntariness.1 See Tipton v. Commonwealth, 224 Va.
256, 295 S.E.2d 880 (1982). In Hill, the police lawfully arrested a brother and sister pursuant to
probable cause for possession of cocaine. 52 Va. App. at 319, 663 S.E.2d at 136. On appeal,
Hill argued that his confession was involuntary because it was induced by police threats to
prosecute his sister if he did not confess. This Court found that a promise to forgo a valid
1
Bailey relies on Tipton v. Commonwealth, 224 Va. 256, 295 S.E.2d 880 (1982), in
support of his argument that the police remarks about his children render his consent involuntary.
However, as this Court explained in Hill, Tipton merely holds that a trial court must consider all
relevant evidence in determining whether a confession was induced by threats to prosecute
family members, it “does not hold that a threat to prosecute a family member is a per se
violation, nor does Tipton instruct on what quantum of evidence is necessary to render a
confession involuntary and therefore inadmissible.” Hill, 52 Va. App. at 319, 663 S.E.2d at 136.
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prosecution against a lawfully charged party was not unlawfully coercive, noting that a
“‘confession is not per se invalid merely because the confessor implicates himself in an effort to
secure the best possible disposition of a charge pending against a relative or friend.’” Id. at
319-20, 663 S.E.2d at 136 (quoting Ferguson, 566 F.2d at 878 n.7 (noting that it must
additionally be shown that the friend or relative was improperly detained or threatened as the
means of coercion)). Hill’s “desire to extricate his sister from a valid arrest d[id] not in itself
render his confession involuntary.” Id. at 321, 663 S.E.2d at 137 (emphasis added). The Court
heavily relied on the fact that the statements the officer made simply informed Hill “of the
possible consequences of his and his sister’s illegal acts,” and thus were based on fact rather than
retribution.2 Id. at 322-23, 663 S.E.2d at 137-38. Noting that while the “circumstances may
have presented a difficult choice,” Hill was not induced to confess to exculpate his sister. Id. at
323, 663 S.E.2d at 138.
In this case, the trial court found that “nothing that [the officers] said . . . [was]
inaccurate.” The trial court framed the issue, with the agreement of defense counsel, as:
“whether [the officers] stating a fact, we’re going to take your children to social services, does
that take away the voluntariness.” Although the trial court concluded that the officers indeed
acted with the intention to persuade Bailey to consent to the search—a fact this Court is bound
by on appeal—it ultimately concluded that stating that truthful fact, without more, was
insufficient to make his consent legally involuntary. We agree.
2
Hill cited numerous other state and federal jurisdictions that similarly hold that a desire
to shield a family member from criminal liability does not render a confession involuntary, and
likewise noted that a confession may be involuntary if it was induced by a threat or promise of
illegal action. 52 Va. App. at 322-23, 663 S.E.2d at 137-38; accord Ferguson, 566 F.2d at 878
n.7 (“It is recognized that a confession is not per se invalid merely because the confessor
implicates himself in an effort to secure the best possible disposition of a charge pending against
a relative or friend. Rather, it must also be shown that the friend or relative was improperly
detained or threatened as the means whereby the confession was involuntarily exacted.”
(citations omitted)).
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Neither of the three responding officers, nor Bailey himself, testified that the officers
threatened to do anything illegal or improper. The officers arrived at the house in order to
respond to a domestic disturbance, where they immediately detected the strong odor of
marijuana. On his own volition, Bailey showed the officers a firearm and a select portion of the
marijuana he had in his home. The officers truthfully informed Bailey that at some point in the
evening they would need to call social services to ensure that his children were cared for while
they waited for a search warrant or upon his arrest.3 While the officers’ subjective intentions
may have been to convince Bailey to consent to the search,4 Bailey retained his free will to
choose whether to cooperate or to wait for the police to obtain a warrant. See United States v.
Elie, 111 F.3d 1135, 1146 (4th Cir. 1997) (holding that the “police can give a defendant truthful
information, even if that information forces the defendant to make a choice between two
unpleasant alternatives” because “‘truthful statements about [the defendant’s] predicament are
not the type of coercion that threatens to render a statement involuntary’” (quoting United States
v. Williams, 479 F.2d 1138, 1073 (4th Cir. 1973))). Viewed in the light most favorable to the
Commonwealth, the record demonstrates that Bailey consented to the search in order to serve his
own self-interests by mitigating the scope of incriminating evidence the police would uncover.
The officers’ statements about calling social services, without more, do not render Bailey’s
consent legally involuntary. Considering the totality of all the circumstances, there is nothing in
3
If all the adults present were taken into custody, the police would be obligated to wait
for social services to arrive before leaving the scene. Moreover, if the police had a reason to
suspect the children were potentially being abused or neglected, they had a duty to call social
services. See Code § 63.2-1509.
4
Importantly, a police officer’s unexpressed subjective intentions are not relevant to the
court’s determination of whether consent is given voluntarily. See Maryland v. Macon, 472 U.S.
463, 470-71 (1985) (“Whether a Fourth Amendment violation has occurred ‘turns on an
objective assessment of the officer’s actions in light of the facts and circumstances confronting
him at the time,’ and not on the officer’s actual state of mind at the time the challenged action
was taken.” (quoting Scott v. United States, 436 U.S. 128, 136 (1978))).
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the record that suggests that Bailey’s free will was overborne and his consent to search was
therefore valid. Accordingly, we hold that the trial court did not err in denying Bailey’s motion
to suppress the evidence.
II. SUFFICIENCY OF THE EVIDENCE
Bailey’s second assignment of error is that “[t]he trial court erred in finding Bailey guilty
of possession of a firearm while simultaneously in possession of a controlled substance, where
the evidence was insufficient to prove that Bailey had actual or constructive possession of a
working firearm.” When the sufficiency of the evidence is challenged on appeal, our review is
guided by well-established principles—“[t]his Court ‘must examine the evidence that supports
the conviction and allow the conviction to stand unless it is plainly wrong or without evidence to
support it.’” Commonwealth v. McNeal, 282 Va. 16, 20, 710 S.E.2d 733, 735 (2011) (quoting
Vincent v. Commonwealth, 276 Va. 648, 652, 668 S.E.2d 137, 139-40 (2008)). The relevant
inquiry is whether “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444,
447 (2003) (en banc).
The majority of Bailey’s argument on this issue relates to whether Bailey had actual or
constructive possession of the firearm. He dedicates only two sentences, citing no authority, to
his additional argument that “the Commonwealth failed to prove that the firearm was in
operating condition.” Each assertion is addressed in turn below.
A. Dominion and Control
On appeal, Bailey argues that despite his knowledge of, and proximity to, the firearm, the
Commonwealth failed to establish that he actually or constructively possessed the firearm as
required by statute because he did not own the firearm, he was not in actual possession of the
firearm, his DNA and fingerprints were not on the firearm, and he did not exercise “dominion
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and control” over the firearm. However, at trial, Bailey never argued that he did not possess the
firearm—actually or constructively.
Pursuant to Rule 5A:18, this Court will not hear arguments that were never presented to
the trial court. The purpose of the rule is “to ensure that the trial court and opposing party are
given the opportunity to intelligently address, examine, and resolve issues in the trial court.”
Andrews v. Commonwealth, 37 Va. App. 479, 493, 559 S.E.2d 401, 408 (2007). While formal
objections are not necessarily required to properly preserve an issue for appeal, in order to
properly comply with Code § 8.01-384 and Rule 5A:18 “counsel may make clear the ground for
his objection in a motion to strike the evidence or in closing argument.” Lee v. Lee, 12 Va. App.
512, 515, 404 S.E.2d 736, 738 (1991). “If a closing argument adequately advises the trial court
of the defendant’s position and if it is clear that the trial court considered the issue and had an
opportunity to take corrective action, the contemporaneous objection rule is satisfied.” Fortune
v. Commonwealth, 14 Va. App. 225, 228, 416 S.E.2d 25, 27 (1992).
The only argument related to the firearm contained anywhere in the record is that the
firearm “was not operable.” Because Bailey never argued below that he did not possess the
firearm, the trial court was unable to “intelligently address, examine, and resolve” any arguments
surrounding Bailey’s actual or constructive possession of the firearm. Consequently, Rules
5A:18 and 5A:20(e) bar our consideration of this argument.
B. Operating Condition
Bailey additionally argues that the Commonwealth “failed to prove that the firearm was
in operating condition” because there was not a round in the chamber and “no one could be
harmed by it.” Bailey cites no legal authority in support of this contention. This argument is
without merit.
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It is well established that to sustain a firearm possession conviction “[i]t is not necessary
that the Commonwealth prove the instrument was operable, capable of being fired, or had the
actual capacity to do serious harm,” instead, “the evidence need show only that a person subject
to the provisions of that statute possessed an instrument which was designed, made, and intended
to expel a projectile by means of an explosion.” Armstrong v. Commonwealth, 263 Va. 573,
584, 562 S.E.2d 139, 145 (2002) (defining “firearm” under Code § 18.2-308.2); accord
McDaniel v. Commonwealth, 264 Va. 429, 429, 574 S.E.2d 234, 234 (2002) (applying
Armstrong to define “firearm” under Code § 18.2-308.4).
In this case, Bailey merely argues that the firearm was “inoperable” because even though
it was loaded, there was no round in the chamber and therefore further action was required to fire
it. However, the instrument, a nine-millimeter handgun, was unquestionably designed, made,
and intended to be fired. Even Bailey’s trial counsel acknowledged, “I know it’s a firearm.” The
certificate of analysis found the firearm to be “in mechanical operating condition with the safety
features functioning properly and test fired with the submitted magazine.” Bailey himself
repeatedly referred to the instrument as a gun and treated it as such by usually putting it in a lock
box. See Kingsbur v. Commonwealth, 267 Va. 348, 352, 593 S.E.2d 208, 210 (2004) (finding
that the defendant “considered it a handgun because he did not want a child to ‘[get] ahold of
it’”). Consequently, there is sufficient evidence in the record to support the trial court’s finding
that the instrument that Bailey possessed “was designed, made, and intended to expel a projectile
by means of an explosion,” and therefore is a firearm within the meaning of the statute. Barlow
v. Commonwealth, 61 Va. App. 668, 673, 739 S.E.2d 269, 272 (2013).
In sum, there is sufficient evidence in the record to support Bailey’s conviction of
possessing a firearm while simultaneously possessing a controlled substance in violation of Code
§ 18.2-308.4(C).
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III. CONCLUSION
For the reasons stated above, we affirm Bailey’s convictions for possession of marijuana
with intent to distribute in violation of Code § 18.2-248.1 and possession of a firearm while
simultaneously possessing with intent to distribute a controlled substance in violation of Code
§ 18.2-308.4(C).
Affirmed.
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