COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Chesapeake, Virginia
CLARENCE EDWARD McCARY
OPINION BY
v. Record No. 2684-00-1 JUDGE LARRY G. ELDER
JULY 3, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Charles E. Haden for appellant.
Thomas M. McKenna, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Clarence Edward McCary (appellant) appeals from his bench
trial convictions for possession of cocaine with intent to
distribute and transporting a controlled substance into
Virginia. On appeal, he contends the trial court erroneously
(1) denied his motion to suppress items seized during a
warrantless search of his motel room, (2) attributed to him
cocaine found on the ground beneath the broken window of his
motel room, and (3) concluded the evidence was sufficient to
prove he acquired cocaine outside Virginia and transported it
into the state.
We affirm the trial court's denial of the motion to
suppress because appellant relinquished his expectation of
privacy in the motel room when he effected extensive damage to
the room and its furnishings, rendering him potentially both
civilly and criminally liable. We also hold the trial court did
not commit reversible error in attributing to appellant the
cocaine found outside his room. Appellant was charged with only
one count of possession with intent to distribute, and the
additional cocaine found on his person and in his room was
sufficient both to prove a prima facie case and to support his
conviction. Finally, we hold that a police officer's testimony
that appellant admitted purchasing the cocaine found on his
person and in his room in North Carolina before coming to
Virginia was sufficient to support his conviction for
transporting cocaine into the Commonwealth. Thus, we affirm
appellant's convictions.
I.
BACKGROUND
At about 9:30 a.m. on November 2, 1999, Newport News Police
Officer V.D. Williams was dispatched to the Suburban Lodge.
Upon his arrival, he learned from the manager that the man
occupying room 225, appellant, "was making threats" to guests
and employees, was "destroying property in the room" and had
"stated he was not coming out of the room unless the police came
in blazing with guns." The manager reported initially that a
woman also was in the room. After talking to the manager and
checking the records, Officer Williams "made a determination
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that [the woman] was not in the room," but he did not know with
certainty that no one else was in the room.
Officer Williams went to room 225 with Officer A.L.
Machesney. Williams identified himself as a police officer and
asked appellant to come out and talk to him. Appellant
responded, "I have two knives and I'm not coming out unless you
come in with guns." Officer V.D. Williams then contacted
Officer Scott Williams, a member of the department's crisis
intervention team.
When Officer Scott Williams arrived, appellant was
"smashing things" inside the room and said he "wanted the police
officers to kill him." When appellant eventually came out of
the room, allowing the door to close behind him, Officer V.D.
Williams pointed his weapon at appellant, and Officer Scott
Williams ordered him to the ground. Appellant was "highly
agitated" and a "tad bit irrational" but complied with the
officers' order to lie down.
Officer Scott Williams then frisked appellant for weapons
and detected in his left front pants pocket a large bulge which
felt like a powdery substance. He recovered a large clear
plastic freezer bag containing a white powdery substance he
suspected was cocaine. He then placed appellant under arrest
and turned him over to Officer Machesney, who took appellant to
his police car.
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About a minute later, based on the complaint that appellant
had damaged the room and the officers' uncertainty about whether
anyone else was in the room, Officers V.D. Williams and Scott
Williams opened the door and entered to conduct a visual
inspection. The manager accompanied them. They discovered the
room "in shambles." The rear window had been smashed and
cabinets, glasses and a mirror destroyed, and there were holes
in the dry wall. Upon entering, Scott Williams observed in
plain view between the bedroom and bathroom areas a second clear
plastic bag containing suspected cocaine. The officers
continued to look through the glass in the bedroom, and five to
ten minutes later, they found between the bed and the window
that had been broken out a third clear plastic bag of suspected
cocaine. Outside, on the ground beneath the broken window of
appellant's second-floor room, Officer V.D. Williams found a
fourth bag of suspected cocaine. Next to it were a white
cabinet door that was "very similar" to one missing from the
kitchen cabinet in appellant's room and a steak knife.
While appellant was still at the scene in Officer
Machesney's custody, Vice Detective J.M. Wilson arrived,
identified himself to appellant, and confirmed that appellant
had been advised of his rights. Wilson said appellant appeared
"as if he had been using [cocaine but was] coming down from the
high." He described appellant as "very coherent" and said "[h]e
wasn't antsy like a normal person stoned on cocaine would be."
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Wilson questioned appellant about the cocaine found on
appellant's person and in his room. Appellant originally
claimed the cocaine was for his personal use but later admitted
he was "bringing it to a guy in New York" and had obtained it in
Raleigh, North Carolina.
Detective Wilson qualified as an expert and testified that
the four bags of cocaine seized--which contained 81.15 grams,
125.61 grams, 124.58 grams, and 75.65 grams, respectively, for a
total of almost 407 grams or about fifteen ounces--had a street
value of about $40,700 and that possession of that quantity of
cocaine was inconsistent with possession for personal use.
Appellant moved to suppress prior to trial, contending the
warrantless search of his motel room was unreasonable. 1 The
trial court denied the motion without explanation. At trial,
when appellant moved to strike the Commonwealth's evidence and
renewed his motion to suppress, the trial court noted it had
already ruled on the motion to suppress and observed, "you have
the management of a hotel calling for somebody to be removed and
the activities of the defendant in this case that have been
described to the Court, I think he gave up any expectations of
privacy whatsoever in this hotel room."
During the trial testimony of Officer Scott Williams, the
officer who collected the drugs at the scene, the Commonwealth
1
Appellant also contended that the search of his person was
unreasonable, but he does not challenge this search on appeal.
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offered into evidence the certificate of analysis for the four
bags of cocaine, including the bag found on the ground beneath
the broken window of appellant's second-floor motel room.
Appellant's counsel stipulated to the chain of custody of the
cocaine and posed no contemporaneous objection to the admission
of the certificate. None of the bags of cocaine was offered
into evidence. At the close of the Commonwealth's evidence,
appellant's counsel "object[ed] to this Item No. 4, the bag [of
cocaine] found outside the hotel. There's no indication that it
came from the room . . . . We would ask that that certainly not
be allowed in . . . ." The trial court said
I don't think it makes any difference one
way or the other in this case whether the
Court excludes Item 4 or not. There's no
reason to exclude Item 4. You've got a
cabinet door right through the window, below
there, with a bag of cocaine that is similar
in nature from the standpoint of packaging
and I just have no problem with it at
all. . . . I don't see any reason to
exclude it.
Appellant testified in his own behalf, denying that the
officers found any cocaine on his person and denying that he
told Detective Wilson he obtained the cocaine in North Carolina.
He admitted that he "trashed the room" because he was "upset
about something," but he denied being "stoned" and "plead[ed]
the Fifth" as to "all four . . . bags of cocaine."
At the close of all the evidence, appellant renewed his
motion to strike and pointed out that the drugs he was accused
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of possessing were never admitted into evidence. The
Commonwealth observed that the certificate of analysis had been
admitted, and appellant made no further comment on that issue.
The trial court said, "I have no problem with it," and convicted
appellant of both charges.
II.
ANALYSIS
A.
SEARCH OF MOTEL ROOM
At a hearing on a defendant's motion to suppress, "the
trial court, acting as fact finder, must evaluate the
credibility of the witnesses . . . [and] resolve the conflicts
in their testimony . . . ." Witt v. Commonwealth, 215 Va. 670,
674, 212 S.E.2d 293, 297 (1975). On appeal of the denial of
such a motion, we view the evidence in the light most favorable
to the prevailing party, here the Commonwealth. Mills v.
Commonwealth, 14 Va. App. 459, 468, 418 S.E.2d 718, 723 (1992).
Whether an individual maintains a legitimate expectation of
privacy in a particular premises to be searched
involves a two-part inquiry. First, we must
determine whether the individual has
manifested "a subjective expectation of
privacy" in the object of the challenged
search. This inquiry is a factual
determination to which we must give
deference on appeal. Second, we must
determine whether the expectation of privacy
is objectively reasonable, one that society
is willing to recognize as legitimate. This
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is a legal determination, requiring no
deference on review.
Johnson v. Commonwealth, 26 Va. App. 674, 683-84, 496 S.E.2d
143, 148 (1998) (quoting Wellford v. Commonwealth, 227 Va. 297,
301, 315 S.E.2d 235, 237 (1984)) (citations omitted). In
determining whether an expectation of privacy is objectively
reasonable, a court looks to the totality of the circumstances,
"includ[ing] whether the defendant has a
possessory interest in . . . the place
searched, whether he has the right to
exclude others from that place, whether he
has exhibited a subjective expectation that
it would remain free from governmental
invasion, whether he took normal precautions
to maintain his privacy and whether he was
legitimately on the premises."
McCoy v. Commonwealth, 2 Va. App. 309, 312, 343 S.E.2d 383, 385
(1986) (quoting United States v. Haydel, 649 F.2d 1152, 1155
(5th Cir. 1981)).
Ordinarily under this test, "[t]he [F]ourth [A]mendment
rights of a guest in a motel room are equivalent to those of the
rightful occupant of a house," the warrantless entry of which is
presumed unreasonable. Servis v. Commonwealth, 6 Va. App. 507,
514, 371 S.E.2d 156, 159 (1988). Under ordinary circumstances,
the motel room's occupant has a subjective expectation of
privacy that society is prepared to recognize as reasonable,
see, e.g., Jones v. Commonwealth, 16 Va. App. 725, 727, 432
S.E.2d 517, 518 (1993), and a motel clerk or owner may not
provide valid consent for the search of a guest's room, see
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Stoner v. California, 376 U.S. 483, 487-89, 84 S. Ct. 889,
892-93, 11 L. Ed. 2d 856 (1964). But see Jones, 16 Va. App. at
728-29, 432 S.E.2d at 519-20 (noting that motel staff may
consent to search of vacant room and that staff member's
apparent authority to consent may be sufficient if officer
"could reasonably have believed that the room was vacant such
that the maid had [actual] authority to consent to the search").
As the United States Supreme Court has recognized, however,
a motel guest may relinquish his expectation of privacy and
waive his constitutional right "by word or deed, either directly
or through an agent." Stoner, 376 U.S. at 489, 84 S. Ct. at
893. Thus, many jurisdictions hold that a hotel or motel guest
who stays beyond the rental period waives, "by . . . deed," his
Fourth Amendment rights and loses his expectation of privacy in
the room and its contents. See, e.g., United States v. Cowan,
396 F.2d 83, 86-87 (2d Cir. 1968) (citing state statute granting
hotel a lien on guest's possessions and allowing their sale for
payment of the room rental fee); see also Code § 43-31
(providing innkeeper with lien on baggage and other property of
guest who fails to pay "proper charges due . . . for . . . board
and lodging"). "[T]his . . . rather strict rule . . . finds its
justification in the fact that it is commonly known that those
who operate [hotels and motels] are understandably interested in
maximum paying occupancy and thus could be expected promptly to
clear the room of a guest who has overstayed so that another
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guest may be given the room." 3 Wayne R. LaFave, Search and
Seizure § 8.5(a), at 781 (3d ed. 1996); id. at 782-83 (noting
prevailing view that "[t]he risk that one assumes in this
connection when renting a hotel or motel room on a temporary
basis is substantially greater than the risk assumed when
renting residential quarters [such as an apartment] on a more
permanent basis" (footnote omitted)).
We hold this same rule applies in the case of a motel guest
who behaves in a manner wholly inconsistent with the
proprietor's financial and ownership interests, as occurred here
when appellant effected extensive damage to the premises. See
People v. Rightnour, 52 Cal. Rptr. 654, 657-59 (Cal. Dist. Ct.
App. 1966) (holding that maid's discovery of burned bedding and
other damaged property in occupied motel room gave manager
actual authority to allow police to enter to investigate
possible offenses against motel property where evidence
established basis for entry was not pre-textual). Under
Virginia law, appellant was civilly liable to the motel for all
property damage to the room and its contents resulting from his
intentional or negligent acts, see Code § 8.01-42.2, and he may
have been criminally responsible, as well, see Code § 18.2-137
(proscribing unlawful or intentional damaging of another's real
or personal property as a misdemeanor or felony depending on the
amount of damage and the perpetrator's intent).
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The evidence, viewed in the light most favorable to the
Commonwealth, established that the officers originally were
called to the scene because appellant was "destroying property
in the room" and that the officers themselves heard appellant
"smashing things." Appellant claimed to have knives in his
possession and indicated he wanted the officers to kill him.
Thereafter, appellant exited the room, and the officers effected
a lawful arrest of appellant.
Based on the report that appellant was "destroying property
in the room" and the officers' own observations that appellant
was "smashing things," we hold, as a matter of law, that
appellant no longer maintained an objectively reasonable
expectation of privacy in the room. Under Code § 8.01-42.2,
appellant was civilly liable to the motel for the property
damage he caused during his occupancy, and we hold the motel
staff was entitled to enter to assess and repair that damage so
that it could re-let the room as soon as possible. Thus, the
motel clerk regained authority to consent to the officers'
entering the room at least for the limited purpose of helping
the clerk inspect the probable damage, and appellant lacked
standing to object to such an inspection.
We do not hold the mere fact that appellant may have been
engaged in illegal activity on the premises was sufficient,
standing alone, to negate his reasonable expectation of privacy
vis-a-vis the law enforcement officers. See Elliotte v.
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Commonwealth, 7 Va. App. 234, 238, 372 S.E.2d 416, 418 (1988)
("[T]hat a person is engaged in criminal conduct within his home
does not, standing alone, destroy a homeowner's expectation of
privacy."). Here, however, the motel's staff initiated contact
with the police and did so based on illegal activity on their
premises which posed an immediate danger to motel staff, guests
and property, including appellant's threats to employees and
guests and appellant's audible destruction of property not his
own. When the officers arrived on the scene, they heard
appellant making threats and "smashing things" inside the room,
and they placed appellant under arrest when he emerged from the
room. Under these circumstances, which included the fact that
appellant's actions rendered him potentially both civilly and
criminally liable to the motel and provided probable cause for
his arrest and the fact that appellant was, in fact, placed
under custodial arrest and removed from the scene--the motel
clerk was justified in immediately terminating appellant's
occupancy, thereby restoring the ability of motel staff to
consent to the officers' entry.
The officers, while legitimately in the room, saw two bags
of cocaine which they were justified in seizing under the plain
view exception to the warrant requirement. 2 See, e.g., Arnold v.
2
We need not consider whether appellant retained an
expectation of privacy in personal items, such as closed
suitcases or other containers, which might have been in the
room. The evidence establishes that the officers discovered the
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Commonwealth, 17 Va. App. 313, 317-18, 437 S.E.2d 235, 238
(1993). Thus, we hold that the trial court did not err in
denying appellant's motion to suppress.
B.
FOURTH BAG OF COCAINE
Appellant contends the trial court erred in attributing to
him the bag of cocaine found on the ground beneath the broken
window of his second-floor motel room (the fourth bag) in that
it erroneously denied his motion to strike the cocaine charge
"at least insofar as it pertained to [the fourth bag of
cocaine]." We disagree.
First, appellant failed to preserve for appeal any
objection to the admission into evidence of the certificate of
analysis for the fourth bag of cocaine. The Commonwealth
offered into evidence testimony concerning the discovery of the
bag and the certificate of analysis of the bag's contents
without objection from appellant. Appellant first registered an
objection to that testimony in his motion to strike at the close
of the Commonwealth's evidence. However, a motion to strike
properly challenges only the sufficiency of the evidence offered
up to that point, not the underlying admissibility of the
evidence. Thus, to the extent appellant's assignment of error
first bag of cocaine in plain view and the second bag either in
plain view or obscured only by broken furniture belonging to the
motel.
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related to the admission of the certificate, our review is
barred. See, e.g., Poole v. Commonwealth, 211 Va. 258, 259-60,
176 S.E.2d 821, 822-23 (1970).
Second, the trial court did not err in denying appellant's
motion to strike the charge of possession of cocaine with intent
to distribute. Appellant was charged with only one count of
possession with intent to distribute. Thus, even if the court
had agreed that the cocaine found outside the apartment could
not properly be attributed to appellant, the Commonwealth's
evidence was sufficient to prove a prima facie case of
possession of cocaine with intent to distribute based on the
remaining three bags of cocaine totaling 331 grams. 3
3
Appellant does not challenge the sufficiency of the
evidence to prove his possession of all the cocaine was with the
requisite intent to distribute. Even if appellant had properly
objected to the admission of evidence regarding the fourth bag
of cocaine and we were to hold that the trial court erroneously
admitted such evidence, its erroneous admission would amount to
harmless error.
An error may be harmless where other evidence of guilt is
"so overwhelming and the error so insignificant by comparison
that the error could not have affected the verdict." Hooker v.
Commonwealth, 14 Va. App. 454, 458 n.2, 418 S.E.2d 343, 345 n.2
(1992). An error may also be harmless where erroneously
admitted evidence is merely cumulative of other, properly
admitted evidence. Freeman v. Commonwealth, 223 Va. 301, 316,
288 S.E.2d 461, 469 (1982). See generally Clay v. Commonwealth,
___ Va. ___, ___ S.E.2d ___ (2001) (adopting federal standard
for determining whether non-constitutional error is harmless).
Here, even without evidence of the challenged fourth bag of
cocaine, the remaining 331 grams of cocaine attributed to
appellant had a street value of approximately $33,000, which was
still more than sufficient to support the conclusion that
appellant's possession was with the requisite intent, and
appellant admitted to Detective Wilson that he was taking the
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C.
SUFFICIENCY OF EVIDENCE TO PROVE TRANSPORTATION OFFENSE
Appellant contends the evidence was insufficient to prove
he acquired the cocaine outside Virginia and transported it into
the state, as required to support his conviction for violating
Code § 18.2-248.01. Again, we disagree.
When considering the sufficiency of the evidence on appeal
in a criminal case, we view the evidence in the light most
favorable to the Commonwealth, granting to its evidence all
reasonable inferences fairly deducible therefrom. Higginbotham
v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
The conclusions of the fact finder on issues of witness
credibility may only be disturbed on appeal if we find that the
witness' testimony was "inherently incredible, or so contrary to
human experience as to render it unworthy of belief." Fisher v.
Commonwealth, 228 Va. 296, 299-300, 321 S.E.2d 202, 204 (1984).
Thus, the testimony of a single witness, if found credible by
the trial court and not found inherently incredible by this
Court, is sufficient to support a conviction.
Here, Detective Wilson testified that appellant admitted
bringing the cocaine into Virginia from North Carolina. As
appellant admits on brief, "it was one man's word against
another's." The trial court, as the finder of fact, believed
cocaine to "a guy in New York." Thus, the error, if any, could
not have affected the verdict.
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Wilson's testimony and rejected appellant's testimony that he
had never been to North Carolina, did not buy the drugs there,
and never told Detective Wilson that he did. Thus, the
evidence, viewed in the light most favorable to the
Commonwealth, was sufficient to prove appellant's guilt of the
challenged offense beyond a reasonable doubt.
III.
For these reasons, we hold that (1) the trial court's
denial of the motion to suppress was not erroneous; (2) the
trial court did not commit reversible error in attributing to
appellant the cocaine found outside his room; and (3) the
evidence was sufficient to support his conviction for
transporting cocaine into the Commonwealth. Thus, we affirm
appellant's convictions.
Affirmed.
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