Legal Research AI

White v. Commonwealth

Court: Court of Appeals of Virginia
Date filed: 1997-03-25
Citations: 482 S.E.2d 876, 24 Va. App. 446
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24 Citing Cases
Combined Opinion
                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Coleman and Overton
Argued at Salem, Virginia


ROBERT EDWARD WHITE
                                              OPINION BY
v.   Record No. 2601-95-3             CHIEF JUDGE NORMAN K. MOON
                                            MARCH 25, 1997
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                   Mosby G. Perrow, III, Judge
          Vanessa E. Hicks, Assistant Public Defender
          (Office of the Public Defender, on brief),
          for appellant.

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



     Robert Edward White appeals his conviction of possession of

cocaine with intent to distribute in violation of Code

§ 18.2-248.   White contends that the trial court erred: (1) in

admitting evidence obtained in a search of his car; and (2) in

finding that the evidence was sufficient beyond a reasonable

doubt to convict him.   Because the search of the passenger

compartment and trunk of White's vehicle was a valid search

pursuant to a lawful custodial arrest, and because the evidence

was sufficient to support the finding that White possessed

cocaine with intent to distribute, we affirm.

     At approximately 4:00 a.m., on April 27, 1995, Officer

Murphy of the Lynchburg Police Department cited White for driving

on a suspended operator's license.   At approximately 11:30 p.m.,

Murphy noticed White sitting in the driver's seat of a vehicle
which was parked on the wrong side of traffic.    As Murphy drove

past, White pulled out and fell in behind Murphy's vehicle.

Murphy turned off, circled, and fell in behind White.    As White

continued down the street, he entered oncoming traffic,

accelerated, and turned into the driveway of his home.    Murphy

activated his emergency lights and pulled in behind White.     White

quickly exited his vehicle and began walking rapidly away from

his car.   Murphy ordered White back to the vehicle.   After

hesitating for a moment, White complied, returning to his car.
     Murphy then arrested White for driving on a suspended

operator's license and proceeded to search the passenger

compartment of the car.   During the search, White asked, "what

are you doing to my car?"   Between the driver and passenger

seats, Murphy discovered a brown paper bag which would have been

visible to anyone sitting in the driver's seat.   In the bag,

Murphy discovered a plastic bag containing two "large white

chunks" of crack cocaine.   Subsequent to the discovery of the

drugs in the vehicle, officers searched the trunk of White's car

and therein discovered $2,691 in mixed denominations.    A search

of White's person produced a pager and $131 in cash.

     White moved to suppress the physical evidence and the

statement he made while his vehicle was being searched.    White

argued that because "[he] had already pulled his car into his

driveway and had gotten out of the car and was headed toward his

house" before being apprehended, the vehicle should not have been

searched because it was not in his general vicinity.

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                      Search of the Vehicle

     In Chimel v. California, 395 U.S. 752 (1969), the United

States Supreme Court held that a 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."    New York v. Belton, 453 U.S. 454, 457

(1981) (quoting Chimel, 395 U.S. at 763).

     However, in New York v. Belton, the Court found that

"[w]hile the Chimel case established that a search incident to an

arrest may not stray beyond the area within the immediate control

of the arrestee, courts have found no workable definition of `the

area within the immediate control of the arrestee' when that area

arguably includes the interior of an automobile and the arrestee

is its recent occupant."    453 U.S. at 460 (emphasis added).

Recognizing that "the protection of the Fourth and Fourteenth

Amendments `can only be realized if the police are acting under a

set of rules which, in most instances, makes it possible to reach

a correct determination beforehand as to whether an invasion of

privacy is justified in the interest of law enforcement,'" id. at

458 (citations omitted), the Court held "that when a policeman

has made a lawful custodial arrest of the occupant of an

automobile, he may, as a contemporaneous incident of that arrest,
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search the passenger compartment of that automobile."    Id. at

460.

       In Michigan v. Long, 463 U.S. 1032 (1983), the Supreme Court

stated that its ruling in Belton applies even where the arrestee

voluntarily exits the vehicle prior to being arrested.   In Long,

after swerving into a ditch, Long exited his vehicle and met the

investigating officers near the rear of his vehicle.    Suspecting

that Long was under the influence of alcohol, the police frisked

him for weapons.   An officer also noticed a hunting knife lying

on the floorboard of the car.   Searching for other weapons in the

car, the officers discovered an open pouch which contained

marijuana.   A subsequent search of the trunk produced seventy-

five pounds of marijuana.    While ultimately finding the search of

the passenger compartment valid under Terry v. Ohio, 392 U.S. 1
(1968), the Court noted that "[i]t is clear that if the officers

had arrested Long . . . they could have searched the passenger

compartment under New York v. Belton, 453 U.S. 454 (1981), and

the trunk under United States v. Ross, 456 U.S. 798 (1982)."
Long, 463 U.S. at 1036 n.1.

       The Supreme Court's ruling in Belton is readily applicable

to the facts in this case.    Here, the record indicates that White

became aware that he was being followed by the police.   Upon

fleeing his vehicle he was immediately stopped and arrested for

driving a motor vehicle with a suspended operator's license.

Subsequent to his custodial arrest, the passenger compartment of

the vehicle of which he had been a "recent occupant" was

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searched, producing a plastic bag containing crack cocaine.      The

search conducted was performed pursuant to a lawful custodial

arrest and was contemporaneous with the arrest.      We find this

search indistinguishable from the type of search deemed valid by

Belton.   Accordingly, we hold the search of the passenger

compartment of White's vehicle was valid.

     We also hold that the subsequent search of the trunk of

White's vehicle was valid.   In United States v. Ross, 456 U.S.

798 (1982), the Supreme Court found that "[i]f probable cause

justifies the search of a lawfully stopped vehicle, it justifies

the search of every part of the vehicle and its contents that may

conceal the object of the search."     Id. at 825.   Here, the

discovery of crack cocaine, pursuant to a valid search incident

to a custodial arrest, provided the police with probable cause to

believe that the vehicle might contain additional controlled

substances.

                    Sufficiency of the Evidence
     White argues the evidence was insufficient to prove that he

either possessed or had the intent to distribute drugs.

     On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.     Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

     In proving possession of a controlled substance, the

Commonwealth may prove either actual or constructive possession.
 Pemberton v. Commonwealth, 17 Va. App. 651, 440 S.E.2d 420

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(1994).   "`To support a conviction based on 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) (quoting Drew v.

Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986)

(citations omitted)).
     Here, the evidence is sufficient to support the trial

court's finding that White was aware of and had control over the

crack cocaine discovered in his vehicle and that he had the

intent to distribute the cocaine.   The bag containing the drugs

was found between the driver and passenger seats and would have

been plainly visible to anyone sitting in the driver's seat.     We

have consistently recognized proximity to a controlled substance

as "a factor to consider when determining whether the accused

constructively possessed drugs."    Brown v. Commonwealth, 15 Va.

App. 1, 9, 421 S.E.2d 877, 882 (1992)(en banc).   In addition,

White's mother, the owner of the vehicle, testified that she did

not own the drugs and that White had been the only person to

operate the vehicle the day of his arrest.

     White also possessed significant sums of cash and a beeper,

evidence which supports a finding of both possession and intent

to distribute.   See McGee, 4 Va. App. at 322, 357 S.E.2d at 740.

Investigator Dantz testified that area drug dealers often kept a

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relatively small amount of cash on their person, while hiding the

bulk of their receipts elsewhere.    Here, officers discovered $131

in cash in White's personal possession and an additional $2,691,

in mixed denominations, in the trunk of his vehicle. 1      Considered

with other factors, possession of currency by a defendant may be

considered in determining whether he or she possessed drugs with

an intent to distribute.     See Colbert v. Commonwealth, 219 Va. 1,

44 S.E.2d 748 (1978).    In addition, White possessed a beeper, an

item routinely classified as a tool of the drug trade.       See

Wilkins v. Commonwealth, 18 Va. App. 293, 443 S.E.2d 440 (1994)

(en banc).

        Further, the drugs found in White's vehicle were packaged in

a manner consistent with distribution.    Investigator Dantz

testified that the packaging of the drugs discovered in White's

vehicle conformed to the practices of area crack dealers.       Expert

testimony, usually that of a police officer familiar with

narcotics, is routinely offered to prove the significance of the

weight and packaging of drugs, regarding whether possession is

for personal use or for distribution.     See Hetmeyer v.

Commonwealth, 19 Va. App. 103, 448 S.E.2d 894 (1994); Rodriguez

v. Commonwealth, 18 Va. App. 277, 443 S.E.2d 419 (1994);

    1
      White admitted the money found in the trunk belonged to
him, but claimed he had won the money gambling. The fact finder
was not required to believe him nor to give any weight to his
testimony. It is for the trier of fact to ascertain a witness'
credibility and it is within the fact finder's discretion to
accept or reject any of the testimony offered. Bridgeman v.
Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).


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Poindexter v. Commonwealth, 16 Va. App. 730, 432 S.E.2d 527

(1993).

     The totality of the facts and circumstances was sufficient

to prove that a drug operation was being conducted from White's

vehicle.   White had possession of the car for the entirety of the

day on which he was arrested.   He had on his person a beeper and

a small amount of cash.   He admitted to owning the $2,691 found

in the trunk of the vehicle.    The bag of drugs found in the

vehicle was within the reach and sight of the driver of the

vehicle.   These facts and circumstances were sufficient to

exclude any reasonable hypothesis of innocence and to prove that

White both possessed cocaine and had the intent to distribute it.

     Accordingly, the trial court's decision is affirmed.
                                                    Affirmed.




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