Upchurch v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Lemons and Frank
Argued at Norfolk, Virginia

JOSEPH ROBERT UPCHURCH, S/K/A
JOSEPH ROBERT UPCHURCH, JR.
OPINION BY
v. Record No. 2969-98-1 JUDGE DONALD W. LEMONS
NOVEMBER 23, 1999
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge

(Robert W. Lawrence; Beale & Lawrence, on
brief), for appellant. Appellant submitting
on brief.

Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

In a bench trial, Joseph Robert Upchurch, Jr. was convicted

of possession of cocaine in violation of Code § 18.2-250. At

the conclusion of the Commonwealth's case-in-chief, Upchurch

moved "to strike the evidence on the grounds that there had been

no probable cause for the arrest." Upchurch concedes that his

motion was essentially a motion to suppress the evidence but

contends that the trial court erred when it denied his motion

based on his failure to comply with the requirements of Code

§ 19.2-266.2. We hold that the trial judge did not err in

refusing to grant the defendant's motion to suppress.
 I. BACKGROUND

On appeal, the burden is on appellant to show that the

trial court's denial of a suppression motion, when the evidence

is viewed in the light most favorable to the Commonwealth,

constitutes reversible error. See Patterson v. Commonwealth, 17

Va. App. 644, 646, 440 S.E.2d 412, 414 (1994). Viewed in the

light most favorable to the Commonwealth, the evidence proved

that on June 12, 1998, Officer Barry Clinedinst responded to a

report of a fight at 855 21st Street in Newport News. Upon

arrival, he heard voices coming from behind the abandoned house.

He walked around the house and came within five feet of Upchurch

and another man. Officer Clinedinst observed Upchurch sitting

on the porch with a "push-rod" in his hand. 1 The other man had a

crack stem in his hand. Both men dropped these items when

Officer Clinedinst approached.

Officer Clinedinst immediately picked up and inspected the

"push-rod." It was about three inches long and appeared to be

made of a bronze colored coat hanger. It had char marks on it

that "almost looked like tar," and had a unique smell Clinedinst

associated with "push-rods." Based upon his recognition of the

item as a "push-rod" with cocaine residue on it and his

observation of the companion's possession of the crack stem,

1
Officer Clinedinst testified that "push-rods" are used to
pack crack cocaine into crack stems prior to smoking it.

- 2 -
Clinedinst concluded that the two men were jointly using crack

cocaine.

Upchurch was arrested and, in a search incident to the

arrest, a second crack stem was found "on his person." A

certificate of chemical analysis revealed cocaine on the metal

crack stem.

Upchurch was charged with possession of cocaine in

violation of Code § 18.2-250. Upchurch did not file a pretrial

motion to suppress the evidence and was tried by the court

without a jury. At the conclusion of the Commonwealth's case,

Upchurch moved to strike the evidence on the ground that the

Commonwealth's evidence had been obtained as a result of an

unlawful arrest. Specifically, appellant argued that Officer

Clinedinst's observation of the "push-rod" did not provide

probable cause to arrest. The Commonwealth argued that if the

court allowed Upchurch's untimely motion, the Commonwealth would

lose its right to appeal an adverse ruling. Upchurch argued

that Code § 19.2-266.2 should not apply because he did not

become aware of the grounds for the motion to suppress until

after the officer testified. The trial court denied the motion

because Upchurch had not filed a motion to suppress at least

seven days before trial. The defendant presented no evidence on

his behalf. Upchurch was convicted of possession of cocaine.

- 3 -
 II. Motion to Suppress

Code § 19.2-266.2 provides in pertinent part that:

Defense motions or objections seeking (i)
suppression of evidence on the grounds such
evidence was obtained in violation of the
provisions of the Fourth . . . Amendment[]
to the Constitution of the United States
. . . proscribing illegal searches and
seizures . . . shall be raised by motion or
objection, in writing, before trial. The
motions or objections shall be filed and
notice given to opposing counsel not later
than seven days before trial. . . . The
court may, however, for good cause shown and
in the interest of justice, permit the
motions or objections to be raised at a
later time.

(Emphasis added).

When the word "shall" appears in a statute, it is generally

used in an imperative or mandatory sense. See Crawford v.

Commonwealth, 23 Va. App. 661, 666, 479 S.E.2d 84, 87 (1996) (en

banc). Therefore, the plain language of Code § 19.2-266.2

requires that a defendant seeking to suppress evidence based on

a violation of his Fourth Amendment rights must file a

suppression motion no later than seven days before trial, absent

"good cause shown and in the interest of justice."

The sole reason given by Upchurch for failure to file a

pretrial suppression motion was that he was unaware of the

potential Fourth Amendment issue until Officer Clinedinst

testified. Counsel did not interview the officer prior to

trial. Counsel does not maintain that he was misled in any way

by representations of the Commonwealth. Additionally, the

- 4 -
information discovered by counsel in Officer Clinedinst's

testimony was also available from the defendant.

We utilize an abuse of discretion standard when reviewing

the trial judge's denial of appellant's motion to consider the

suppression motion after the statutory deadline. If the

defendant does not exercise due diligence to discover relevant

facts before trial and has not been misled by the Commonwealth

or its witnesses or otherwise prevented by the Commonwealth from

discovering relevant facts, ignorance of a witness' testimony,

especially a witness who reasonably could be expected to

testify, does not constitute good cause for excusing the

defendant from the requirements of Code § 19.2-266.2. Upchurch

failed to establish that he could not have obtained sufficient

information to support a timely motion to suppress through

either consultation with his attorney or by interviewing Officer

Clinedinst.

The public policy advanced by Code § 19.2-266.2 is directly

related to the provisions of Code § 19.2-398, which provide in

pertinent part:

A petition for appeal from a circuit court
may be taken by the Commonwealth only in
felony cases, before a jury is impaneled and
sworn in a jury trial, or before the court
begins to hear or receive evidence or the
first witness is sworn, whichever occurs
first, in a nonjury trial. The appeal may
be taken from:

* * * * * * *

- 5 -
 (2) An order of a circuit court prohibiting
the use of certain evidence at trial on the
grounds such evidence was obtained in
violation of the provisions of the Fourth,
. . . Amendment[] to the Constitution of the
United States . . . prohibiting illegal
searches and seizures . . . .

In Commonwealth v. Ramey, 19 Va. App. 300, 450 S.E.2d 775

(1994), we stated:

In order to protect a criminal defendant
from being twice put in jeopardy for the
same offense, the Commonwealth is prohibited
from appealing a judgment in a criminal
prosecution. However, this prohibition, if
applied without exception, would deny review
of erroneous trial court decisions
suppressing evidence found to have been
obtained in violation of the United States
Constitution. These decisions involve
significant constitutional protection and
often determine the outcome of a criminal
proceeding. Appellate review serves to
enhance the uniformity and legitimacy of
such decisions. Providing appellate review
of these decisions, therefore, serves a
legitimate governmental objective.
Furthermore, because of its interlocutory
nature, it does so while still preserving a
criminal defendant's protection against
being twice placed in jeopardy.

Id. at 303, 450 S.E.2d at 776-77 (citations omitted).

The Commonwealth's right to appeal is an essential

component in the process of correcting misapplications of the

law. The Commonwealth may not appeal an erroneous suppression

ruling after the jury is impaneled and sworn in a jury trial or

evidence is received or the first witness is sworn in a non-jury

trial. See Code § 19.2-398. The justification for the

requirement of a pretrial suppression motion is readily apparent

- 6 -
in light of the Commonwealth's limited right to appeal an

adverse suppression ruling.

The trial judge did not abuse his discretion by finding

lack of good cause for excusing Upchurch from the requirement of

filing his suppression motion seven days before trial as

required by Code § 19.2-266.2 and finding that Upchurch thereby

waived his right to contest the introduction of this evidence at

trial. Accordingly, the conviction is affirmed.

Affirmed.

- 7 -