Spivey v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia

DEBORAH SPIVEY, S/K/A
DEBORAH JANE SPIVEY
OPINION BY
v. Record No. 2829-95-1 JUDGE RICHARD S. BRAY
JANUARY 14, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Norman Olitsky, Judge
Dianne G. Ringer, Senior Assistant Public
Defender, for appellant.

Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

Deborah Spivey (defendant) was convicted in a bench trial

for possessing both cocaine and marijuana with the intent to

distribute. On appeal, she contends that the trial court

erroneously declined to suppress evidence resulting from an

unlawful "no-knock" entry incidental to the execution of a search

warrant and improperly received into evidence items omitted from

the related inventory. Defendant also challenges the sufficiency

of the evidence to support the convictions. Finding no error, we

affirm the decision of the trial court.

In accordance with well established principles, we view the

evidence in the light most favorable to the Commonwealth. On the

evening of December 14, 1994, Portsmouth police executed a search

warrant for defendant's residence. The affidavit of Detective

Tammy Early given in support of the warrant, together with
Early's independent investigation, established that a

confidential and reliable informant had observed "Debbie"

distribute cocaine from the premises within the immediately

preceding seventy-two hours. The informant further advised that

"Debbie" distributed cocaine daily to "various persons" and "may

possibly be in possession of a .38 handgun," was "known to have a

.38."

Defendant's son, Duane, reportedly was her cocaine supplier

and resided within "one city block." Duane frequently "stay[ed]"

with defendant, often walking to her residence, and had recently

been arrested for discharging a firearm into an unoccupied

vehicle. When the warrant was executed, police were unable to

determine if Duane was present on the property. Confronted with

the "threat of two weapons," Early concluded that execution of

the warrant by "knocking and announcing" would imperil the police

officers and, therefore, authorized a "no-knock" entry, utilizing

a "ramming" device.
Upon entering the residence, police observed defendant

running from the living room into the kitchen. She was detained,

and the ensuing search revealed cocaine, marijuana, and related

paraphernalia throughout the home. A recent Virginia Power bill

and a "notice" from Western Union, both addressed to defendant at

the residence, were found on a desk in the living room, and

cocaine was secreted in the "envelope slot" of the desk. In the

kitchen, eleven bags of cocaine were discovered in a drawer, and

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four bags of marijuana were hidden in a flour canister. A "big

piece" of crack cocaine rested in plain view atop a dresser in

the "front bedroom," together with two bags containing a total of

seventy-one empty smaller plastic bags. Five bags of marijuana

were also found in the bedroom, two inside a women's jewelry box,

and three in a dresser drawer. Women's clothing, a pocketbook,

jewelry, and underwear were also located in the room. A single

bag of marijuana was discovered in a bathroom medicine cabinet.

Cash totalling $232 was gathered from defendant's "purse" and

elsewhere in the residence.
Officer Rivera prepared an inventory of the property seized

during the raid, but neither the Virginia Power nor Western Union

documents were listed. Rivera attributed the omissions to

"inadvert[ance]," "an oversight on [his] part."

Rivera qualified as an expert in "the methods and devices

used to distribute narcotics" in the City of Portsmouth and

testified that the quantity of the cocaine discovered in the

residence, no less than 12.9 grams having a total value of

approximately $1,290, and the related packaging and paraphernalia

were inconsistent with possession for personal use. He further

testified that the quantity and packaging of the marijuana were

also inconsistent with personal use.

MOTION TO SUPPRESS

Defendant moved to suppress all evidence obtained during the

search, arguing that it was the fruit of an improper no-knock

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entry, and objected to the Virginia Power and Western Union

exhibits because each had been excluded from the inventory.

However, after consideration of memoranda of law and attendant

argument of counsel, the trial court overruled both motions. 1

In reviewing the ruling on a suppression motion, we assess

the evidence in the "light most favorable to . . . the prevailing

party below," the Commonwealth in this instance, and the decision

of the court 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 trial and suppression hearings, if any. See

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).

The Fourth Amendment requires "'that searches and seizures

be reasonable.'" Wilson v. Arkansas, 115 S. Ct. 1914, 1916

(1995) (quoting New Jersey v. TLO, 469 U.S. 325, 337 (1985)); see

Va. Const. art. I, § 10. "[T]he reasonableness of a search of a

1
Contrary to defendant's contention that this ruling
resulted solely from a recitation in the affidavit that defendant
"may possibly be in possession of a .38 handgun," the trial judge
expressly confirmed his consideration of "all the facts and
testimony . . . rendered in the case."

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dwelling may depend in part on whether law enforcement officers

announced their presence and authority prior to entering."

Wilson, 115 S. Ct. at 1916; see id. at 1918. "Generally, police

officers, before resorting to forced entry into premises to be

searched under warrant, must attempt to gain admittance peaceably

by announcing their presence, identifying themselves as police

officers and stating their purpose." Heaton v. Commonwealth, 215

Va. 137, 138, 207 S.E.2d 829, 830 (1974). While this "knock and

announce" rule doubtless "gives notice to the suspects of the

officers' presence and the suspects' possible impending

apprehension, it . . . discourages violence and volatile

confrontations and encourages orderly executions of search

warrants." Hargrave v. Commonwealth, 21 Va. App. 320, 323, 464

S.E.2d 176, 177 (1995); see Johnson v. Commonwealth, 213 Va. 102,

104, 189 S.E.2d 678, 679 (1972), cert. denied, 409 U.S. 1116

(1973).

However, "[e]xceptions to the rule . . . permit officers to

make an unannounced entry where they have probable cause to

believe that their peril would be increased if they announced

their presence or that an unannounced entry is necessary to

prevent persons within from escaping or destroying evidence."
Heaton, 215 Va. at 138, 207 S.E.2d at 830. "As an articulated

legal standard, probable cause deals with probabilities

concerning the factual and practical considerations in everyday

life as perceived by reasonable and prudent persons." DePriest,

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4 Va. App. at 584, 359 S.E.2d at 543 (quoting Washington v.

Commonwealth, 219 Va. 857, 862, 252 S.E.2d 326, 329 (1979)).

"[O]fficers are not required to possess either the gift of

prophecy or the infallible wisdom that comes only with hindsight.

They must be judged by their reaction to circumstances as they

reasonably appeared to trained law enforcement officers to exist

when the decision to enter was made." Commonwealth v. Woody, 13

Va. App. 168, 171, 409 S.E.2d 170, 172 (1991) (citing Keeter v.
Commonwealth, 222 Va. 134, 141, 278 S.E.2d 841, 846, cert.

denied, 454 U.S. 1053 (1981)). The Commonwealth bears the burden

of proving probable cause in support of an unannounced entry.

See Heaton, 215 Va. at 138, 207 S.E.2d at 830.

Here, a confidential and reliable informant had observed a

recent drug sale at defendant's residence, an activity common to

the premises, where defendant reputedly possessed a handgun.

Defendant's son and drug supplier, Duane, resided nearby, was

often at defendant's home and had been arrested ten days

previously for shooting into an unoccupied vehicle. When the

warrant was executed, Duane's whereabouts were unknown to the

police. The officers were, therefore, cognizant that two

firearms were possibly present in the residence, each in the

possession of a drug dealer, one of whom had recently been

charged with a weapons violation. Accordingly, Early's

conclusion that a knock and announce entry would endanger police

was reasonable and prudent and supported by the necessary

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probable cause to justify the disputed no-knock entry.

ADMISSIBILITY OF EVIDENCE OMITTED FROM INVENTORY

Code § 19.2-57 provides, in pertinent part, that:
The officer who seizes any property [pursuant
to a search warrant] shall prepare an
inventory thereof, under oath. An inventory
of any seized property shall be produced
before the court designated in the warrant.
The officer executing the warrant shall
endorse the date of execution thereon and
shall file the warrant, with the inventory
attached . . . and the accompanying
affidavit, . . . within three days after the
execution of such search warrant in the
circuit court clerk's office, wherein the
search was made . . . .

Although the Virginia Power and Western Union exhibits were

omitted from the inventory prepared and filed by Officer Rivera,

noncompliance with Code § 19.2-57 does not require suppression of

the evidence:
"While violations of state procedural
statutes are viewed with disfavor, . . .
neither the Virginia Supreme Court nor the
legislature has adopted an exclusionary rule
for such violations[] . . . where no
deprivation of the defendant's constitutional
rights occurred." "'[H]istorically, searches
or seizures made contrary to provisions
contained in Virginia statutes provide no
right of suppression unless the statute
supplies that right.'" . . . Code § 19.2-57
does not expressly command the suppression or
exclusion of evidence for a violation of the
statute. Moreover, [defendant] does not
allege that his constitutional rights were
violated.

West v. Commonwealth, 16 Va. App. 679, 692, 432 S.E.2d 730,

738-39 (1993) (citations omitted).

SUFFICIENCY OF EVIDENCE

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 In assessing a challenge to the sufficiency of the evidence

to support a conviction, we examine the evidence in the light

most favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom. See Martin v.

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

The judgment of a trial court, sitting without a jury, is

entitled to the same weight as a jury verdict and will be

disturbed only if plainly wrong or without evidence to support

it. See id. The credibility of a witness, the weight accorded

the testimony, and the inferences to be drawn from proven facts

are matters solely for the fact finder's determination. See Long

v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
[P]ossession of a controlled substance may
be actual or constructive. "To support a
conviction based upon 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 substance and that it was subject to his
dominion and control.'"

McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740

(1987) (citation omitted) (quoting Drew v. Commonwealth, 230 Va.

471, 473, 338 S.E.2d 844, 845 (1986)). Circumstantial evidence

of 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);
McGee, 4 Va. App. at 322, 357 S.E.2d at 740; Johnson v.

Commonwealth, 2 Va. App. 598, 604-05, 347 S.E.2d 163, 167 (1986).

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 Although mere proximity to drugs is insufficient to

establish possession, it is a circumstance which may be probative

in determining whether an accused possessed such drugs. See Lane

v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982);

Eckhart v. Commonwealth, 222 Va. 447, 450-51, 281 S.E.2d 853, 855

(1981); Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877,

882 (1992) (reh'g en banc). Ownership or occupancy of the

premises is likewise a circumstance probative of possession. See
Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845

(1986) (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).

Here, defendant was alone in the residence and ran from the

living room to the kitchen as police entered the home.

Contemporary documents, personal to defendant and addressed to

the subject premises, were discovered on a desk in the living

room, together with cocaine. Eleven bags of cocaine were found

in a kitchen drawer. A "big piece" of crack cocaine was in plain

view on a dresser located in a bedroom, together with women's

clothing, underwear, and jewelry. Numerous bags of marijuana

were discovered in the kitchen, bathroom, and bedroom. The only

reasonable hypothesis arising from such evidence is that

defendant constructively possessed the cocaine and marijuana

found both in plain view and stashed throughout her residence,

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aware of the nature and character of the drugs. See Wymer v.

Commonwealth, 12 Va. App. 294, 300-01, 403 S.E.2d 702, 706-07

(1991) (evidence of constructive possession sufficient where

accused and another occupied a residence, and drugs and

paraphernalia were with accused's possessions).

Defendant's challenge to the sufficiency of the evidence to

prove intent to distribute the drugs is also without merit.

"Because direct proof of intent is often impossible, it must be

shown by circumstantial evidence." Servis v. Commonwealth, 6 Va.

App. 507, 524, 371 S.E.2d 156, 165 (1988). "In proving intent,

various types of circumstantial evidence may be appropriate --

evidence concerning the quantity of drugs and cash possessed, the

method of packaging, . . . whether appellant himself used drugs,"

Poindexter v. Commonwealth, 16 Va. App. 730, 734-35, 432 S.E.2d

527, 530 (1993), and the absence of evidence suggestive of

personal use. See Colbert v. Commonwealth, 219 Va. 1, 4, 244

S.E.2d 748, 749 (1978).

Officer Rivera testified that the method of packaging and

the quantities of both the cocaine and marijuana were

inconsistent with personal use. He also testified that the

presence of seventy-one empty small baggies suggested an intent

to package and distribute the drugs. Finally, the officers found

no paraphernalia or other items related to personal use of the

drugs. Such evidence was sufficient to support the finding that

defendant possessed the offending drugs with the requisite intent

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to distribute.

Accordingly, we affirm the convictions.

Affirmed.

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