Brooks v. Commonwealth

HUFF, J.,

dissenting.

While I agree with the majority that the inclusion of exact page references to the transcript is required by the Rule, I believe the page references in this case were adequate to satisfy the exactitude requirement and alert us to the issues on appeal. Making “an exact reference” to the preserved error may fairly include the statement of the objection, the grounds asserted, the trial court’s ruling, and the noting of an exception (if required). If those facets of the issue comprise an entire transcript, as they did here, then citing to the entire transcript satisfies the Rule’s requirement of “an exact reference to the pages of the transcript ... where the alleged error has been preserved----” Rule 5A:12(e)(l). Thus, I would address the merits of the appeal.

With regard to appellant’s first contention that the trial court erred in denying his motion to suppress, appellant argues that the search of his vehicle was improper because there was no reasonable belief of the existence of a weapon within appellant’s immediate control.

“To prevail on appeal, ‘the defendant must show that the trial court’s denial of his suppression motion, when the evidence is considered in the light most favorable to the prosecution, was reversible error.’ ” Slayton v. Commonwealth, 41 Va.App. 101, 105, 582 S.E.2d 448, 450 (2003) (quoting Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464 (2003)). “ ‘Though the ultimate question whether the officers violated the Fourth Amendment triggers de novo scrutiny, we defer to the trial court’s findings of historical fact and give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers.’” Id. at 105, 582 S.E.2d at 449-50 (quoting Barkley v. Commonwealth, 39 Va.App. 682, 689-90, 576 S.E.2d 234, 237-38 (2003)).

“In Terry v. Ohio, 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889] (1968), the United States Supreme Court approved ‘a protective search for weapons in the absence of probable cause to arrest ... when [a police officer] possesses an articulable suspicion that an individual is armed and dangerous.’ ” Pier-*591son v. Commonwealth, 16 Va.App. 202, 204, 428 S.E.2d 758, 759 (1993) (alteration in original) (quoting Michigan v. Long, 463 U.S. 1032, 1034, 103 S.Ct. 3469, 3473, 77 L.Ed.2d 1201 (1983); Lansdown v. Commonwealth, 226 Va. 204, 211-12, 308 S.E.2d 106, 111 (1983), cert. denied, 465 U.S. 1104, 104 S.Ct. 1604, 80 L.Ed.2d 134 (1984)).

Recognizing the “ ‘inordinate risk confronting an officer as he approaches a person seated in an automobile,’ ” Long, 463 U.S. at 1048 [103 S.Ct. at 3480] (quoting Pennsylvania v. Mimms, 434 U.S. 106, 110 [98 S.Ct. 330, 333, 54 L.Ed.2d 331] (1977)), the Court has extended such protective searches “beyond the person,” including “areas” of the “passenger compartment of an automobile in which a weapon may be placed or hidden.”

Id. (quoting Long, 463 U.S. at 1049-50, 103 S.Ct. at 3480-81; Glover v. Commonwealth, 3 Va.App. 152, 156, 348 S.E.2d 434, 437-38 (1986), aff'd, 236 Va. 1, 372 S.E.2d 134 (1988)). Moreover, “[i]f the officer ‘should ... discover contraband other than weapons’ during this investigation, ‘he ... cannot be required to ignore [it], and the Fourth Amendment does not require its suppression in such circumstances.’ ” Id. at 204, 428 S.E.2d at 759-60 (second alteration in original) (quoting Long, 463 U.S. at 1050, 103 S.Ct. at 3481).

In the present case, the officer conducted a lawful traffic stop during which he observed appellant reach toward the back seat of his vehicle as well as into the glove compartment. Appellant then refused to check the glove compartment for his registration information, even after the officer suggested he look there. After the officer returned to his patrol vehicle with appellant’s driver’s license, he again saw appellant reach toward the glove compartment. On this basis, the officer reasonably believed that appellant “was trying to get to something, a firearm.” Thus, the officer was entitled to conduct a protective search of the glove compartment in which a weapon could have been hidden. Accordingly, the trial court did not err in denying appellant’s motion to suppress.

*592With regard to appellant’s contention that the trial court erred in finding the evidence sufficient to support the conviction, appellant argues the evidence did not prove he possessed the cocaine.

“When considering on appeal the sufficiency of the evidence presented below, we ‘presume the judgment of the trial court to be correct’ and reverse only if the trial court’s decision is ‘plainly wrong or without evidence to support it.’ ” Wood v. Commonwealth, 57 Va.App. 286, 296, 701 S.E.2d 810, 815 (2010) (quoting Davis v. Commonwealth, 39 Va.App. 96, 99, 570 S.E.2d 875, 876-77 (2002)).

Possession may be actual or constructive. Constructive possession exists when “an accused has dominion or control over the drugs.” Such “possession may be proved by evidence of acts, declarations or conduct of the accused from which the inference may be fairly drawn that he knew of the existence of narcotics at the place where they were found.”

Brown v. Commonwealth, 15 Va.App. 1, 7-8, 421 S.E.2d 877, 882 (1992) (en banc) (quoting Castaneda v. Commonwealth, 7 Va.App. 574, 583-84, 376 S.E.2d 82, 86-87 (1989)).

The evidence in this case proved that appellant was aware of cocaine in his vehicle and that it was subject to his dominion and control. Appellant repeatedly refused to check the glove compartment for his registration information even after the officer suggested that he look there. Rather, appellant reached toward the glove compartment only when the officer had left the vicinity of his vehicle, thus supporting the inference that appellant knew the cocaine was in the glove compartment. Based on these circumstances, the trial court did not err in finding the evidence sufficient to support appellant’s conviction for possession of cocaine. For the reasons stated, I would affirm the judgment of the trial court.