Archer v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia

JARROD R. ARCHER
OPINION BY
v. Record No. 1726-96-1 JUDGE JOSEPH E. BAKER
NOVEMBER 10, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
John K. Moore, Judge
Theresa B. Berry (Samford & Berry, P.C., on
brief), for appellant.

John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.

Jarrod R. Archer (appellant) appeals from his bench trial

conviction by the Circuit Court of the City of Virginia Beach

(trial court) for grand larceny and possession of a firearm by a

convicted felon. Appellant contends that the trial court erred

when it (1) failed to grant his motion to suppress evidence of a

stolen gun found with his knife and (2) held that the evidence

was sufficient, as a matter of law, to prove he possessed that

gun. Finding no error, we affirm the convictions.

On July 22, 1995, Officers Colley, Phillips, and Robertson

of the Virginia Beach Police Department responded to the

dispatcher's report of an anonymous phone call advising that "a

wanted person," appellant, was in room 114 at the Lakeside Motel

on Virginia Beach Boulevard. The dispatcher advised that

appellant was wanted by police for a probation violation and
petit larceny. The caller had described appellant as a white

male, approximately eighteen years old, about six feet tall, with

red hair worn in a ponytail, and driving a light green GEO Storm.

The caller further reported that appellant "would be armed with a

knife and a gun and would fight police."

The officers arrived at the motel and saw a light green GEO

Storm in front of room 114. Colley inspected the motel register

and discovered that room 114 was registered to Kerry Maloney, who

had been staying there with another person since July 19, a

period of three days. Colley ran a check on the GEO Storm and

discovered that it was also registered to Maloney.
Colley, Phillips, and Robertson approached the door to room

114 and Phillips knocked. Phillips stood to the right of the

door and Colley and Robertson stood to the left. Receiving no

response, Phillips knocked on the door again, "pretty hard this

time." The door "apparently [was not] secure," and it slowly

"eased open" to reveal a room about twelve feet by twelve feet in

size.

Through the open door, Colley and Phillips saw a woman

standing by one of two beds. The officers asked her if appellant

was in the room. The woman, later determined to be Maloney,

merely looked across the room to the area left of the door.

Phillips then saw appellant, who matched the informant's

description, standing to the left of the door. Phillips drew his

gun, pointed it at appellant, and ordered appellant to step away

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from the window and show his hands. Appellant complied.

Believing appellant to be armed, the officers entered the room,

placed appellant on the bed and handcuffed his hands behind his

back. When the officers asked, appellant said he was Richard

Berryman. Subsequently, when he was taken outside, appellant

admitted that he was Jarrod Archer, and he was arrested.

Colley remained inside with Maloney. Colley asked Maloney

if any guns or knives were in the room. As she was replying that

weapons were under a mattress, appellant was giving Phillips the

same information. A gun and knife were found at the place each

had advised that they would be found. Appellant admitted that

the knife was his but disclaimed ownership of the gun. The

uncontradicted evidence at trial proved the gun was stolen

property that had been discovered missing by its owner only

twenty-four hours earlier.
Prior to trial, appellant moved to suppress the gun on the

ground that the warrantless entry and search of the motel room

violated his constitutional rights. His motion was denied.

At trial, the Commonwealth introduced appellant's criminal

record, which proved appellant previously had been convicted of a

felony. When the Commonwealth rested and the trial court

overruled appellant's motion to strike, appellant rested without

testifying or offering any evidence in his behalf.

MOTION TO SUPPRESS: WARRANTLESS ENTRY AND SEARCH
In reviewing the trial court's denial of a motion to

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suppress, "[t]he burden is upon [appellant] to show that th[e]

ruling, when the evidence is considered most favorably to the

Commonwealth, constituted reversible error." Fore v.

Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980).

Questions of reasonable suspicion and probable cause to make a

warrantless search are subject to de novo review on appeal. See

McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261

(1997) (en banc). "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." Id. at 198, 487

S.E.2d at 261.

"'The [F]ourth [A]mendment rights of a guest in a motel room

are equivalent to those of the rightful occupants of a house.'"

Alexander v. Commonwealth, 19 Va. App. 671, 674, 454 S.E.2d 39,

41 (1995) (quoting Servis v. Commonwealth, 6 Va. App. 507, 514,

371 S.E.2d 156, 159 (1988)). Ordinarily, therefore, the

warrantless entry into a person's motel room is presumed

unreasonable and violative of the Fourth Amendment. See id.

Under Code § 19.2-81, however, a police officer "may arrest,

without a warrant, for an alleged misdemeanor not committed in

his presence when the officer receives a radio message from his

department or other law enforcement agency within the

Commonwealth that a warrant for such offense is on file."

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Moreover,
anonymous information that has been
sufficiently corroborated may furnish
reasonable suspicion justifying an
investigative [encounter]. Every detail
mentioned by an anonymous informer need not
be verified to establish reasonable
suspicion, [as long as] . . . [s]ignificant
aspects of the informer's information [are]
independently corroborated [in order] . . .
to give "some degree of reliability to the
other allegation" of the informant.

Bulatko v. Commonwealth, 16 Va. App. 135, 137, 428 S.E.2d 306,

307 (1993) (quoting Alabama v. White, 496 U.S. 325, 332 (1990))
(citations omitted).

Once the officer confirms that the suspect detained pursuant

to the investigative encounter is the person named in the arrest

warrant, Code § 19.2-81 permits completion of the arrest without

the warrant itself. That lawful arrest
justifies a contemporaneous warrantless
search of the individual arrested and of the
immediately surrounding area. "Such searches
have long been considered valid because of
the need 'to remove any weapons that [the
arrestee] might seek to use in order to
resist arrest or effect his escape' and the
need to prevent the concealment or
destruction of evidence."

White v. Commonwealth, 24 Va. App. 446, 450, 482 S.E.2d 876,

877-78 (1997) (quoting New York v. Belton, 453 U.S. 454, 457

(1981) (quoting Chimel v. California, 395 U.S. 752, 763 (1969)));

see also Maryland v. Buie, 494 U.S. 325, 334 (1990). These

principles apply even to searches conducted after the arrestee

has been restrained, as long as the search is contemporaneous

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with the arrest. See White, 24 Va. App. at 450-51, 482 S.E.2d at

878; see also United States v. Silva, 745 F.2d 840, 847

(4th Cir. 1984), cited with approval in Albert v. Commonwealth, 2

Va. App. 734, 739, 347 S.E.2d 534, 537 (1986) (upholding validity

of search in motel room of locked zipped bag in possession of

accused who had already been handcuffed and was being held at

gunpoint).

The record here discloses that the police (1) were armed

with information that a wanted person, appellant, described as an

eighteen-year-old white male, approximately six feet tall, with

red hair fashioned in a ponytail, was driving a green GEO Storm

and could be found in a designated motel room, and (2)

corroborated a substantial portion of the information, including

the existence of outstanding misdemeanor arrest warrants for

appellant. Upon arrival at the motel, the police sighted the GEO

Storm in front of the designated room, and they knocked on the

door to conduct further inquiry. After the door had opened and

before the officers entered the motel room, they saw a white male

who "perfectly" matched the description. See Bulatko, 16 Va.

App. at 137, 428 S.E.2d at 307 (upholding reasonable suspicion to

stop auto where every fact related by informant, including make,

color, and license plate number of vehicle, and fact of accused's

habitual offender status, were independently corroborated by

officer and only fact remaining to be corroborated was identity

of driver as accused).

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 The police then had reason to believe that appellant was the

wanted person named in the misdemeanor warrants, and they

properly entered the room and took appellant into custody. See

Payton v. New York, 445 U.S. 573, 603 (1980) (in case involving

warrantless felony arrest, holding that, "for Fourth Amendment

purposes, an arrest warrant founded on probable cause implicitly

carries with it the limited authority to enter a dwelling in

which a suspect lives when there is reason to believe the suspect

is within"); United States v. Spencer, 684 F.2d 220, 222-24
(2d Cir. 1982) (in case involving bench warrant issued for

failure to appear on misdemeanor warrants, holding that Payton is

not limited to felony warrants and applies to any arrest warrant

issued by a neutral magistrate), cert. denied, 459 U.S. 1109

(1983). Upon confirming that appellant was, in fact, the wanted

person, they arrested him on the outstanding misdemeanor warrants

as permitted by Code § 19.2-81. After simultaneously being told

by Maloney, in the room, and appellant, three feet outside the

room, that a gun and knife were under a bed mattress, the police

located a stolen gun and knife that support both verdicts.

Forewarned that the wanted person would have a gun and knife and

would "fight" the police, after verifying the other facts that

had been reported to them by the dispatcher, the police properly

made inquiry and conducted a follow-up search for the weapons

contemporaneous with appellant's arrest.

The trial court properly held that the limited search of the

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motel room and seizure of the weapons found under the mattress

did not constitute an unreasonable search and seizure. See

White, 24 Va. App. at 450-51, 482 S.E.2d at 878.

SUFFICIENCY OF THE EVIDENCE

On appeal, the judgment of the trial court is presumed to be

correct. See Johnson v. Commonwealth, 12 Va. App. 391, 396, 404

S.E.2d 384, 387 (1991). On appeal,
we review the evidence in the light most
favorable to the Commonwealth, granting to it
all reasonable inferences fairly deducible
therefrom. The judgment of a trial court
sitting without a jury is entitled to the
same weight as a jury verdict and will not be
set aside unless it appears from the evidence
that the judgment is plainly wrong or without
evidence to support it.

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987).

In challenging the sufficiency of the evidence to support

his convictions for possession of a firearm by a convicted felon

and grand larceny, appellant contests only the Commonwealth's

proof of possession.

Proof that appellant possessed the gun found under the

mattress, either actually or constructively, was sufficient to

support his conviction for possession of a firearm by a convicted

felon. See Blake v. Commonwealth, 15 Va. App. 706, 708-09, 427

S.E.2d 219, 220-21 (1993) (holding that principles applicable to

constructive possession of drugs also apply to constructive

possession of firearm).
To support a conviction based upon

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 constructive possession, "the Commonwealth
must point to evidence of acts, statements,
or conduct of the accused or other facts or
circumstances which tend to show that the
defendant was aware of both the presence and
character of the [contraband] and that it was
subject to his dominion and control."

Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845

(1986) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316

S.E.2d 739, 740 (1984)). Possession "need not always be

exclusive. The defendant may share it with one or more."
Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497

(1990) (en banc).

Although mere proximity to the contraband is insufficient to

establish possession, it is a factor that may be considered in

determining whether a defendant possessed the contraband. See

Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882

(1992) (en banc). Ownership or occupancy of the premises on

which the contraband was found is likewise a circumstance

probative of possession. See Drew, 230 Va. at 473, 338 S.E.2d at

845 (citing Code § 18.2-250). Thus, in resolving this issue, the

Court must consider "the totality of the circumstances disclosed

by the evidence." Womack v. Commonwealth, 220 Va. 5, 8, 255

S.E.2d 351, 353 (1979).

Circumstantial evidence of such possession is sufficient to

support a conviction, provided it excludes every reasonable

hypothesis of innocence. See Tucker v. Commonwealth, 18 Va. App.

141, 143, 442 S.E.2d 419, 420 (1994). However, "[t]he

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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). Whether an alternative

hypothesis of innocence is reasonable is a question of fact, see

Cantrell v. Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328,

339 (1988), and, therefore, is binding on appeal unless plainly

wrong. See Martin, 4 Va. App. at 443, 358 S.E.2d at 418.
The only reasonable hypothesis flowing from the evidence in

this case is that appellant was aware of the presence of the gun

beneath the mattress and that it was subject to his dominion and

control. When questioned by police regarding whether there were

any weapons in the room, defendant said there might "possibly

[be] a gun or knife under one of the beds." The police

immediately found the gun under one of the mattresses, lying

directly beside a knife that appellant admitted was his.

Although appellant denied ownership of the gun, its presence with

his knife and his earlier statement indicating his awareness of

its presence permitted the inference "that appellant exercised

the dominion and control necessary to show constructive

possession." See Blake, 15 Va. App. at 709, 427 S.E.2d at 221.

The trial court, as the finder of fact, was free to reject

appellant's statement to Officer Phillips that someone else had

placed the gun under the mattress, or, alternatively, to find

that appellant exercised joint possession of the gun with his

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girlfriend or another.

We hold that this same evidence is sufficient to prove the

possession necessary to support appellant's conviction for grand

larceny. The unexplained possession of recently stolen goods

permits the fact finder to infer that the possessor is the thief.

See Bright v. Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d 443,

444 (1987). In order for the presumption to arise, the

possession must be exclusive, but "[o]ne can be in exclusive

possession of an item when he jointly possesses it with another,"

as long as "the accused was consciously asserting at least a

possessory interest in the stolen property or was exercising

dominion over [it]." Best v. Commonwealth, 222 Va. 387, 389, 282

S.E.2d 16, 17 (1981).

As set forth above, appellant told Officer Phillips that

there might be a gun and knife under the mattress. After the

police found the gun and knife secreted together under the

mattress, appellant admitted that the knife belonged to him,

thereby permitting the inference that he exercised dominion and

control over the gun, as well. Appellant told Officer Phillips

that several of his friends had been in the motel room that day

and that he thought the gun belonged to one of them. However,

appellant and his girlfriend, and no one else, were present in

the motel room along with the gun. This evidence, viewed as a

whole, permitted the trial judge to conclude that appellant,

"[a]t the very least[,] . . . was in joint constructive

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possession of the gun," thereby invoking the presumption that

appellant was the thief.

For these reasons, we hold that the search of appellant's

motel room was not unreasonable and that the evidence of his

constructive possession of a firearm was sufficient to support

his convictions for grand larceny of the firearm and possession

of a firearm by a convicted felon. Accordingly, the judgment of

the trial court is affirmed.

Affirmed.

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