COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Overton
Argued at Norfolk, Virginia
TODD MacARTHUR GLASCO
OPINION BY
v. Record No. 0319-97-1 JUDGE JOSEPH E. BAKER
MARCH 17, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Edward I. Sarfan (Sarfan & Nachman, on
brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Todd MacArthur Glasco (appellant) appeals from his bench
trial conviction in the Circuit Court of the City of Newport News
(trial court) for possessing cocaine with the intent to
distribute and simultaneously possessing a firearm and cocaine.
On appeal, he contends the trial court erroneously (1) denied his
motion to suppress the evidence, which was based on his assertion
that the initial encounter and the subsequent search of his
automobile incident to arrest violated the Fourth Amendment of
the United States Constitution and (2) held that the evidence was
sufficient to support his convictions. We disagree and affirm
his convictions.
Between 11:00 p.m. and 11:10 p.m. on May 4, 1996, while in
uniform and in a police vehicle, Officer Wesley T. Filer saw a
BMW he believed was being driven by appellant. He had seen
appellant in possession of the BMW on previous occasions. Two
weeks earlier, Filer had arrested appellant on an outstanding
capias for failure to pay traffic fines. Filer's experience led
him to believe that an individual who failed to pay such fines
would have his license suspended. Filer began the process of
running a check with the Department of Motor Vehicles (DMV) to
see whether appellant had a valid license, and he continued to
follow the BMW to confirm that appellant was, in fact, the
driver.
Without any direction from Filer, appellant stopped and
parked legally by the side of the road, exited the vehicle and
began to walk across the street. Filer pulled in behind the BMW.
At that time, Filer had not yet received a response from the DMV
regarding whether appellant's license had been suspended. After
appellant exited the vehicle, Filer activated some portion of his
emergency equipment and called out, "Mr. Glasco, you don't have a
valid license, do you?" Filer did not ask appellant to come back
to his vehicle, but appellant began walking toward Filer and
responded, "Come on, Filer, can't you just give me a break?"
When Filer asked appellant for identification, he produced a
Virginia I.D. card but no driver's license. Subsequently, the
DMV check confirmed that appellant's driver's license had been
suspended, and Filer placed him under custodial arrest.
In a search of appellant's person incident to arrest, Filer
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found two small bags of marijuana, $650 in cash, 1 and a pager.
Intending to "transport . . . and book" appellant, Filer put him
in the back of the police car and asked Officer John V. Polak, a
backup officer who had parked behind Filer's vehicle, to search
the BMW incident to appellant's arrest. While sitting in his
police car, Filer saw Polak raise up from the driver's seat, walk
to the rear of the BMW, and motion Filer to come to appellant's
vehicle. Polak showed Filer a .38 caliber handgun found in the
driver's door pocket wrapped in a towel and "a plastic bag
corner" containing suspected crack cocaine found out of sight
under the driver's floor mat. Filer testified as follows:
When [Polak] originally raised up from the
driver's seat, I couldn't see what he had in
his possession. When he came to the rear of
the police unit, I still couldn't see what he
had in his possession. . . . Based upon
where [appellant] was sitting and when
Officer Polak displayed the items to me,
[appellant] would have to look actually
through my back, through my person in order
to see the [gun and cocaine] because they
were almost directly in front of me when
[Polak] displayed them.
Filer then returned to his car, advised appellant of his
Miranda rights, and asked him only about the firearm. Appellant
admitted knowing the gun was in the car but said "he didn't know
anything about the drugs that we found." When Filer reminded
appellant that he had "found the marijuana in [appellant's]
1
Six hundred of the $650 was in six separate folds of one
hundred dollars each, made up of various denominations: four $5
bills; eight $10 bills; fifteen $20 bills; two $50 bills; and one
$100 bill.
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pocket," appellant responded, "[T]hat's not what I'm talking
about. I'm talking about the drugs that are in the vehicle."
Filer told appellant that Filer had not mentioned the cocaine,
and appellant responded that "he knew Officer Polak had pulled
something out of the car because he saw him."
Evidence at trial proved that the cocaine totalled 6.1
grams. No stem was found. Officer Lecroy, who had arrested over
two hundred individuals for possessing cocaine, testified that
the quantity of cocaine, the absence of a stem for smoking the
cocaine, and the presence of a pager, firearm and large quantity
of cash folded in hundred dollar increments were facts
inconsistent with possession for personal use. He testified that
he had, "[o]n several occasions, . . . seen [sellers] in
possession of large quantities of cash . . . packaged in hundred
dollar increments" and that such packaging was to make it easier
to keep track of how much money they had and how much "dope" they
had sold. However, he also admitted that a heavy user could
smoke a gram a day.
Appellant testified that he saw the police car's lights come
on while he was walking across the street and that Filer said
"Get over here. I want to see you." Appellant testified that he
obeyed Filer's "order" because Filer was a police officer with
his flashing lights on.
Georgia Herbert, the registered owner of the BMW, testified
that she had given appellant $600 in small denominations under
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$100 to pay her bills and that the money was not folded.
Appellant claimed that he had changed the money into bigger
denominations to make it lighter.
Herbert also testified that she often loaned out her car and
that her uncle, Richard Williams, had possessed the car for
several hours earlier in the day. She had asked appellant to
pick up the car from Williams and return it to her. Appellant
also testified at trial that he had picked the car up from
Williams.
MOTION TO SUPPRESS
In reviewing a trial court's denial of a motion to suppress,
"[t]he burden is upon [appellant] to show that this ruling, when
the evidence is considered most favorably to the Commonwealth,
constituted reversible error." Fore v. Commonwealth, 220 Va.
1007, 1010, 265 S.E.2d 729, 731 (1980).
Terry Stop
Under well established Fourth Amendment principles, "[t]he
police can stop and briefly detain a person for investigative
purposes if the officer has a reasonable suspicion supported by
articulable facts that criminal activity 'may be afoot.'" United
States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. Ohio,
392 U.S. 1, 30 (1968)). "Ultimate questions of reasonable
suspicion and probable cause to make a warrantless search" or
seizure involve issues of both law and fact and are reviewed de
novo on appeal. See Ornelas v. United States, 116 S. Ct. 1657,
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1659 (1996). However, "[i]n performing such analysis, we are
bound by the trial court's findings of historical fact unless
'plainly wrong' or without evidence to support them[,] and we
give due weight to the inferences drawn from those facts by
resident judges and local law enforcement officers." McGee v.
Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997)
(en banc) (citing Ornelas, 116 S. Ct. at 1663).
We hold that the evidence proved Filer had reasonable
suspicion that criminal activity was "afoot." See Sokolow, 490
U.S. at 7. Filer knew appellant had been arrested two weeks
earlier for law violations that often resulted in license
suspension. Although Filer's suspicion regarding the probable
outcome of proceedings against people who fail to pay fines was
not conclusive evidence that appellant was driving without a
license, it nevertheless gave Filer reasonable suspicion to
detain and question appellant briefly. Appellant stopped and
parked his car without any direction by Filer. As appellant
exited his car and crossed the street, Filer called out a
question to him: "Mr. Glasco, you don't have a valid license, do
you?" Appellant began to walk toward Filer and said, "Come on,
Filer, can't you just give me a break." Appellant's statement,
coupled with Filer's knowledge of appellant's recent arrest, gave
Filer reasonable suspicion to detain him further. When appellant
was unable to produce a valid driver's license, Filer had
reasonable suspicion to continue the detention while he awaited
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the results of the DMV license check.
Search Incident to Arrest
Searches incident to arrest "'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.'" White v. Commonwealth, 24 Va. App.
446, 450, 482 S.E.2d 876, 878 (1997) (quoting New York v. Belton,
453 U.S. 454, 457 (1981) (quoting Chimel v. California, 395 U.S.
752, 763 (1969))). As we recently reemphasized, "[t]hese
principles apply even to searches conducted after the arrestee
has been restrained, as long as the search is contemporaneous
with the arrest." Archer v. Commonwealth, 26 Va. App. 1, 9-10,
492 S.E.2d 826, 830 (1997) (citing United States v. Silva, 745
F.2d 840, 847 (4th Cir. 1984) (upholding validity of search in
motel room of locked zipped bag in possession of accused who had
already been handcuffed and was being held at gunpoint)). In the
case of the arrest of an occupant of an automobile, these
principles permit the contemporaneous search of the passenger
compartment. See Belton, 453 U.S. 454.
Once Filer received confirmation that appellant did not
possess a valid license, he placed appellant under custodial
arrest for that offense. Incident to that valid custodial
arrest, Filer had the authority to conduct a contemporaneous
warrantless search of appellant and of the immediately
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surrounding area.
Appellant contends the authority to search a vehicle
incident to arrest does not extend to the vehicle he exited
voluntarily and without haste before being detained and arrested.
We disagree. See White, 24 Va. App. 446, 482 S.E.2d 876. White
involved an individual who, when he "became aware that he was
being followed by police," parked his vehicle and fled. See id.
at 451, 482 S.E.2d at 878. White was immediately stopped,
ordered back to his vehicle, and arrested for driving on a
suspended license. The arresting officer conducted a vehicle
search contemporaneous with the lawful custodial arrest. See id.
at 449, 451, 482 S.E.2d at 877, 878.
In affirming White's conviction, we classified the search of
"the vehicle of which [White] had been a 'recent occupant'" as
one "indistinguishable from the type of search deemed valid by
Belton." White, 24 Va. App. at 451, 482 S.E.2d at 878 (quoting
Belton, 453 U.S. at 460) (emphasis added). We emphasized that
the "ruling in Belton applies even where the arrestee voluntarily
exits the vehicle prior to being arrested." Id. (citing Michigan
v. Long, 463 U.S. 1032, 1036 n.1 (1983)). Therefore, the only
prerequisites to the lawful search of an automobile incident to
arrest are that the search is contemporaneous with the arrest and
the arrestee's recent occupancy of the vehicle. As we noted in
White, this rule furthers the goal recognized by the United
States Supreme Court in Belton:
"[T]he protection of the Fourth and
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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.'"
White, 24 Va. App. at 450, 482 S.E.2d at 878 (quoting Belton, 453
U.S. at 458 (citations omitted)).
For these reasons, we hold that the trial court correctly
denied appellant's motion to suppress.
SUFFICIENCY OF THE EVIDENCE
In reviewing the sufficiency of the evidence, we examine the
record 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 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 proved facts are matters to be
determined by the fact finder. See Long v. Commonwealth, 8 Va.
App. 194, 199, 379 S.E.2d 473, 476 (1989).
Circumstantial evidence may establish the elements of a
crime, provided it excludes every reasonable hypothesis of
innocence. See, e.g., Tucker v. Commonwealth, 18 Va. App. 141,
143, 442 S.E.2d 419, 420 (1994). However, "the Commonwealth need
only exclude reasonable hypotheses of innocence that flow from
the evidence, not those that spring from the imagination of the
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defendant." Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433
S.E.2d 27, 29 (1993). Whether a hypothesis of innocence is
reasonable is a question of fact, see Cantrell v. Commonwealth, 7
Va. App. 269, 290, 373 S.E.2d 328, 339 (1988), and a finding by
the trial court is binding on appeal unless plainly wrong. See
Martin, 4 Va. App. at 443, 358 S.E.2d at 418.
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Constructive Possession of the Cocaine
To support a conviction based upon constructive possession
of drugs, "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." Powers v. Commonwealth,
227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). 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 Brown v. Commonwealth, 15 Va.
App. 1, 9, 421 S.E.2d 877, 882 (1992) (en banc). Ownership or
occupancy of the vehicle in which the drugs are found 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). 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, Polak found the cocaine under the floor mat of the BMW
appellant had been driving only minutes before. Although the car
was not registered to appellant, Filer had also seen appellant
driving it on previous occasions. Polak found an item in the car
door pocket, a firearm, that appellant admitted was his.
Finally, appellant told Filer that "he didn't know anything about
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the drugs that [Polak] found." Although appellant claimed he
knew about the drugs because he saw Polak pull them out of the
vehicle, the only reasonable inference from Filer's testimony,
viewed in the light most favorable to the Commonwealth, was that
appellant could not have seen the baggie or its contents before
he claimed not to know anything about it. From the totality of
these circumstances, we hold the only reasonable hypothesis
flowing from the evidence is that appellant was aware of the
presence and character of the cocaine while he was driving the
BMW and that it was subject to his dominion and control.
Intent to Distribute
"Because direct proof of intent [to distribute drugs] 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). Such evidence may include the quantity of drugs and cash
possessed and whether appellant himself used drugs. See
Poindexter v.Commonwealth, 16 Va. App. 730, 734-35, 432 S.E.2d
527, 530 (1993). Possession of a large sum of money, especially
in small denominations, and the absence of any paraphernalia
suggestive of personal use, also are regularly recognized as
factors indicating an intent to distribute. See Colbert v.
Commonwealth, 219 Va. 1, 4, 244 S.E.2d 748, 748-49 (1978).
Finally, pagers and firearms are recognized as tools of the drug
trade, the possession of which are probative of intent to
distribute. See White, 24 Va. App. at 453, 482 S.E.2d at 879
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(pager); Dixon v. Commonwealth, 11 Va. App. 554, 557, 399 S.E.2d
831, 833 (1991) (firearm).
Here, the officers found 6.1 grams of cocaine but no stem or
other paraphernalia indicating personal use. In appellant's
pocket, they found $650, the majority of which comprised
denominations of $20 and below, and $600 of the money was
arranged in six separate folds of $100 each. Also in appellant's
pocket, they found two small bags of marijuana and a pager.
Finally, in the car just inches from the cocaine, the officers
found appellant's .38 caliber handgun.
At trial, Lecroy, experienced in cocaine arrests, confirmed
that the quantity of cocaine, the absence of a stem for smoking
it, and the presence of a pager, firearm and large quantity of
cash folded in hundred dollar increments were facts inconsistent
with possession for personal use. Although he admitted that a
heavy user could smoke a gram of cocaine a day, making the 6.1
grams a six-day supply, no evidence in the record indicated that
appellant used cocaine. In addition, although appellant
presented evidence that a friend had given him most of the money
in order to pay her bills, the trial court was free to reject
this testimony as incredible. Therefore, we cannot say the trial
court was plainly wrong in finding that no reasonable hypothesis
of innocence flowed from the evidence.
For these reasons, we hold the evidence was sufficient to
support appellant's conviction for possessing cocaine with the
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intent to distribute, and we affirm both that conviction and his
conviction for possessing a firearm while possessing cocaine.
Affirmed.
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