Bynum v. Commonwealth

COURT OF APPEALS OF VIRGINIA

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

KEITH BYNUM
OPINION BY
v. Record No. 2154-95-1 JUDGE RICHARD S. BRAY
NOVEMBER 12, 1996
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
Melinda R. Glaubke for appellant.

John Byrum, Assistant Attorney General (James S.
Gilmore, III, Attorney General; Daniel J. Munroe,
Assistant Attorney General, on brief), for appellee.

Keith Bynum (defendant) was convicted in a bench trial for

receiving stolen property in violation of Code § 18.2-108.

Defendant complains on appeal (1) that the trial court

erroneously declined to suppress evidence resulting from an

unlawful search, and (2) that the evidence was insufficient to

support the conviction. We disagree and affirm the decision.

In accordance with well established principles, we consider

the sufficiency of the evidence to support a criminal conviction

upon a review of the record
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) (citing Code § 8.01-680). "The weight which should be

given to evidence and whether the testimony of a witness is

credible are questions which the fact finder must decide."

Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598,

601 (1986).

We similarly review a trial court's ruling on a suppression

motion, assessing the evidence in the "light most favorable to

. . . the prevailing party below," the Commonwealth in this

instance, and the decision of the trial judge will be disturbed

only if plainly wrong. Commonwealth v. Grimstead, 12 Va. App.

1066, 1067, 407 S.E.2d 47, 48 (1991). Our consideration of the

record includes evidence adduced at both the trial and the

suppression hearing, if any. DePriest v. Commonwealth, 4 Va.

App. 577, 583, 359 S.E.2d 540, 542-43 (1987), cert. denied, 488

U.S. 985 (1988). To prevail on appeal, the defendant must "show

. . . that the denial of [his] motion . . . constitute[d]

reversible error." Motley v. Commonwealth, 17 Va. App. 439,

440-41, 437 S.E.2d 232, 233 (1993).

During the early morning hours on February 8, 1995, Virginia

Beach police executed a search warrant for a local motel room.

Uniformed Officers Sean Coerse and Steven Bishard were assigned

to watch from inside and prevent unauthorized persons from

entering the room. While the search was underway, Coerse

observed defendant and two women approach the door. When Coerse

opened the door, defendant "immediately turned around and began

- 2 -
walking away." Aware of suspected narcotics activity at the

motel, Coerse decided to "get a conversation going with

[defendant]," hoping to gain "consent to search his person."

Coerse called to defendant and asked "if [he] could help

him." Defendant "stopped[,] . . . turned . . . around," and

answered that "he had come to visit . . . people . . . in the

room." Coerse had seen no vehicle arrive at the motel and, after

further inquiry, defendant explained that the three had been

"dropped off." Defendant laughingly denied involvement in

narcotics trafficking and acceded to Coerse's request to search

his person, "plac[ing] his hands up on the wall." Because Coerse

was "searching for narcotics and specifically crack cocaine," a

"very small item," he "stuck [his] hands in [defendant's] pockets

and removed the contents," without objection from defendant.

Coerse discovered a "Toyota car key" in a trouser pocket and

remarked to defendant, "I thought . . . you didn't drive here."

Defendant responded that he had found the key on the ground

immediately in front of the motel room door and voiced "[n]o

problem" with police keeping the key.
Coerse passed the key to Officer Bishard, and Bishard

proceeded to a parking area located at the rear of the motel.

Finding a Toyota automobile with its engine still "warm," Bishard

ran a "status check" and learned that the vehicle had been

reported stolen the preceding day. Coerse immediately located

defendant, then seated on a nearby bench, and confronted him with

- 3 -
Bishard's findings. Defendant denied knowledge of the offense

and was released by police after completion of a "field interview

card." 1 Following discovery of defendant's fingerprints on the

automobile, he was arrested several days later. During

subsequent police interrogation, defendant admitted possessing

the stolen vehicle at the motel, claiming that "crack fiends"

oftentimes allowed him to use their vehicles in exchange for

cocaine.
SUPPRESSION OF EVIDENCE

Defendant first argues that he consented to a search only

for drugs and that Coerse "exceeded the scope" of such consent

when he "seize[d] the [car] key, . . . ask[ed] any questions or

[took] further action regarding that key."

"The constitutional guarantee which defendant invokes

secures citizens in their persons and property against

unreasonable seizures." Greene v. Commonwealth, 17 Va. App. 606,

610, 440 S.E.2d 138, 140 (1994).
However, "[t]he purpose of the Fourth
Amendment is not to eliminate all contact
between the police and the citizenry, but 'to
prevent arbitrary and oppressive interference
by enforcement officials with the privacy and
personal security of individuals.' As long
as the person to whom questions are put
remains free to disregard the questions and
walk away, there has been no intrusion upon
that person's liberty or privacy as would
under the Constitution require some

1
The field interview included defendant's name, address,

occupation, physical description, and photograph.

- 4 -
 particularized and objective justification."

Id. (quoting United States v. Mendenhall, 446 U.S. 544, 553-54

(1980)). "Voluntarily responding to a police request, which most

citizens will do, does not negate 'the consensual nature of the

response.'" Grinton v. Commonwealth, 14 Va. App. 846, 849, 419

S.E.2d 860, 862 (1992) (quoting I.N.S. v. Delgado, 466 U.S. 210,

216 (1984)). Thus, a police/citizen encounter and related

exchange remain consensual and without Fourth Amendment

implications "as long as 'a reasonable person would understand

that he or she could refuse to cooperate.'" Lawrence v.

Commonwealth, 17 Va. App. 140, 144, 435 S.E.2d 591, 593 (1993)

(quoting United States v. Wilson, 953 F.2d 116, 121 (4th Cir.

1991)), aff'd. per curiam, 247 Va. 339, 443 S.E.2d 160 (1994).

Notwithstanding Coerse's motives, the initial encounter and

attendant exchange between defendant and Officer Coerse were

clearly voluntary, without suggestion of coercion or

intimidation. Defendant willingly responded to the officer's

inquiries, dismissed with a laugh any involvement with narcotics,

and expressly agreed to a search of his person, placing his hands

against the wall without prompting by Coerse.
"A consensual search is reasonable if the
search is within the scope of the consent
given." Grinton v. Commonwealth, 14 Va. App.
846, 850, 419 S.E.2d 860, 862 (1992). The
United States Supreme Court has articulated
the standard for measuring the scope of an
individual's consent under the Fourth
Amendment to be "'objective' reasonableness--
what would the typical person have understood
by the exchange between the officer and the
suspect?" Florida v. Jimeno, 500 U.S. 248,

- 5 -
 251 (1991). Furthermore, the Court stated
that, "[t]he scope of a search is generally
defined by its expressed object." Id.

Bolda v. Commonwealth, 15 Va. App. 315, 316-17, 423 S.E.2d 204,

205-06 (1992).

"A suspect may of course delimit as he chooses the scope of

the search to which he consents. But if his consent would

reasonably be understood to extend to a particular container, the

Fourth Amendment provides no grounds for requiring a more

explicit authorization." Lawrence, 17 Va. App. at 145, 435

S.E.2d at 594 (quoting Jimeno, 500 U.S. at 252). "The scope of

[the] search may be further defined during the course of the

search by the passive acquiescence of the person whose property

is being searched." Grinton, 14 Va. App. at 851, 419 S.E.2d at

863; see also Lawrence, 17 Va. App. at 146, 435 S.E.2d at 594-95.

Both the presence of consent to search and any related

limitations are factual issues for the trial court to resolve

after consideration of the attendant circumstances. See Limonja
v. Commonwealth, 8 Va. App. 532, 540, 383 S.E.2d 476, 481 (1989)

(en banc), cert. denied, 495 U.S. 905 (1990).

In Lugar v. Commonwealth, 214 Va. 609, 611-12, 202 S.E.2d

894, 897 (1974), the Supreme Court restricted the scope of a

consensual search for a fugitive to "a reasonable search of

places [within an] apartment where [he] might hide." However,

where the object may be more easily concealed, a search may

properly assume much different parameters. For example, in a

- 6 -
consensual search of an automobile for narcotics, police may

search a container found within the vehicle, absent specific

limitations to the contrary. Grinton, 14 Va. App. at 851, 419

S.E.2d at 862-63 (citing Jimeno, 500 U.S. at 251). While

searching for coins, police may "look into every part of [a]

building," as coins "might have been hidden in one or more boxes

of diminutive size." 2 Blair v. Commonwealth, 225 Va. 483, 489,

303 S.E.2d 881, 886 (1983); see Beavers v. Commonwealth, 245 Va.

268, 275-76, 427 S.E.2d 411, 417, cert. denied, 510 U.S. 859
(1993).

Officer Coerse was searching for crack cocaine, a small item

subject to concealment in the "corner" of a pocket. In agreeing

to the search, defendant understood its purpose and voiced no

objection when Coerse conducted the search by emptying his

pockets. Under such circumstances, the trial court correctly

concluded that the search was reasonably conducted and within the

scope of defendant's consent, both express and implied.

Discovery of the key was clearly an incident of the consensual

search and the related inquiries and investigation were merely a

2
Although Blair arose under a search warrant, the scope of a

search warrant defines the reasonableness of the attendant search

as a defendant's consent defines the reasonable scope of a

warrantless search. United States v. Dichiarinte, 445 F.2d 126,

129 n.3 (7th Cir. 1971).

- 7 -
continuation of the voluntary encounter.

SUFFICIENCY OF THE EVIDENCE

Conviction of defendant for violation of Code § 18.2-108

required proof that the automobile was (1) previously stolen by

another, and (2) received by defendant, (3) with knowledge of the

theft, and (4) a dishonest intent. Starks v. Commonwealth, 225

Va. 48, 54, 301 S.E.2d 152, 156 (1983); see Code § 18.2-108.

Defendant argues only that the Commonwealth's evidence failed to

sufficiently establish his guilty knowledge. Manifestly,

"[a]bsent proof of an admission against interest, such knowledge

necessarily must be shown by circumstantial evidence. . . . 'It

is sufficiently shown if the circumstances proven are such as

must have made or caused the recipient of stolen goods to believe

they were stolen.'" Lewis v. Commonwealth, 225 Va. 497, 503, 303

S.E.2d 890, 893 (1983) (quoting Reaves v. Commonwealth, 192 Va.

443, 451, 65 S.E.2d 559, 564 (1951)).

The record discloses that defendant was found in possession

of the stolen automobile within hours of its theft, falsely

denied any connection to the vehicle, but later admitted

acquiring it from a cocaine "fiend" in exchange for narcotics.

Such evidence, together with the entire record, sufficiently

established the guilty knowledge requisite to the conviction.

Accordingly, we affirm the judgment of the trial court.

Affirmed.

- 8 -