COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
JARROD R. ARCHER
OPINION BY
v. Record No. 1726-96-1 JUDGE JOSEPH E. BAKER
NOVEMBER 10, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
John K. Moore, Judge
Theresa B. Berry (Samford & Berry, P.C., on
brief), for appellant.
John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Jarrod R. Archer (appellant) appeals from his bench trial
conviction by the Circuit Court of the City of Virginia Beach
(trial court) for grand larceny and possession of a firearm by a
convicted felon. Appellant contends that the trial court erred
when it (1) failed to grant his motion to suppress evidence of a
stolen gun found with his knife and (2) held that the evidence
was sufficient, as a matter of law, to prove he possessed that
gun. Finding no error, we affirm the convictions.
On July 22, 1995, Officers Colley, Phillips, and Robertson
of the Virginia Beach Police Department responded to the
dispatcher's report of an anonymous phone call advising that "a
wanted person," appellant, was in room 114 at the Lakeside Motel
on Virginia Beach Boulevard. The dispatcher advised that
appellant was wanted by police for a probation violation and
petit larceny. The caller had described appellant as a white
male, approximately eighteen years old, about six feet tall, with
red hair worn in a ponytail, and driving a light green GEO Storm.
The caller further reported that appellant "would be armed with a
knife and a gun and would fight police."
The officers arrived at the motel and saw a light green GEO
Storm in front of room 114. Colley inspected the motel register
and discovered that room 114 was registered to Kerry Maloney, who
had been staying there with another person since July 19, a
period of three days. Colley ran a check on the GEO Storm and
discovered that it was also registered to Maloney.
Colley, Phillips, and Robertson approached the door to room
114 and Phillips knocked. Phillips stood to the right of the
door and Colley and Robertson stood to the left. Receiving no
response, Phillips knocked on the door again, "pretty hard this
time." The door "apparently [was not] secure," and it slowly
"eased open" to reveal a room about twelve feet by twelve feet in
size.
Through the open door, Colley and Phillips saw a woman
standing by one of two beds. The officers asked her if appellant
was in the room. The woman, later determined to be Maloney,
merely looked across the room to the area left of the door.
Phillips then saw appellant, who matched the informant's
description, standing to the left of the door. Phillips drew his
gun, pointed it at appellant, and ordered appellant to step away
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from the window and show his hands. Appellant complied.
Believing appellant to be armed, the officers entered the room,
placed appellant on the bed and handcuffed his hands behind his
back. When the officers asked, appellant said he was Richard
Berryman. Subsequently, when he was taken outside, appellant
admitted that he was Jarrod Archer, and he was arrested.
Colley remained inside with Maloney. Colley asked Maloney
if any guns or knives were in the room. As she was replying that
weapons were under a mattress, appellant was giving Phillips the
same information. A gun and knife were found at the place each
had advised that they would be found. Appellant admitted that
the knife was his but disclaimed ownership of the gun. The
uncontradicted evidence at trial proved the gun was stolen
property that had been discovered missing by its owner only
twenty-four hours earlier.
Prior to trial, appellant moved to suppress the gun on the
ground that the warrantless entry and search of the motel room
violated his constitutional rights. His motion was denied.
At trial, the Commonwealth introduced appellant's criminal
record, which proved appellant previously had been convicted of a
felony. When the Commonwealth rested and the trial court
overruled appellant's motion to strike, appellant rested without
testifying or offering any evidence in his behalf.
MOTION TO SUPPRESS: WARRANTLESS ENTRY AND SEARCH
In reviewing the trial court's denial of a motion to
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suppress, "[t]he burden is upon [appellant] to show that th[e]
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).
Questions of reasonable suspicion and probable cause to make a
warrantless search are subject to de novo review on appeal. See
McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261
(1997) (en banc). "In 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." Id. at 198, 487
S.E.2d at 261.
"'The [F]ourth [A]mendment rights of a guest in a motel room
are equivalent to those of the rightful occupants of a house.'"
Alexander v. Commonwealth, 19 Va. App. 671, 674, 454 S.E.2d 39,
41 (1995) (quoting Servis v. Commonwealth, 6 Va. App. 507, 514,
371 S.E.2d 156, 159 (1988)). Ordinarily, therefore, the
warrantless entry into a person's motel room is presumed
unreasonable and violative of the Fourth Amendment. See id.
Under Code § 19.2-81, however, a police officer "may arrest,
without a warrant, for an alleged misdemeanor not committed in
his presence when the officer receives a radio message from his
department or other law enforcement agency within the
Commonwealth that a warrant for such offense is on file."
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Moreover,
anonymous information that has been
sufficiently corroborated may furnish
reasonable suspicion justifying an
investigative [encounter]. Every detail
mentioned by an anonymous informer need not
be verified to establish reasonable
suspicion, [as long as] . . . [s]ignificant
aspects of the informer's information [are]
independently corroborated [in order] . . .
to give "some degree of reliability to the
other allegation" of the informant.
Bulatko v. Commonwealth, 16 Va. App. 135, 137, 428 S.E.2d 306,
307 (1993) (quoting Alabama v. White, 496 U.S. 325, 332 (1990))
(citations omitted).
Once the officer confirms that the suspect detained pursuant
to the investigative encounter is the person named in the arrest
warrant, Code § 19.2-81 permits completion of the arrest without
the warrant itself. That 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."
White v. Commonwealth, 24 Va. App. 446, 450, 482 S.E.2d 876,
877-78 (1997) (quoting New York v. Belton, 453 U.S. 454, 457
(1981) (quoting Chimel v. California, 395 U.S. 752, 763 (1969)));
see also Maryland v. Buie, 494 U.S. 325, 334 (1990). These
principles apply even to searches conducted after the arrestee
has been restrained, as long as the search is contemporaneous
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with the arrest. See White, 24 Va. App. at 450-51, 482 S.E.2d at
878; see also United States v. Silva, 745 F.2d 840, 847
(4th Cir. 1984), cited with approval in Albert v. Commonwealth, 2
Va. App. 734, 739, 347 S.E.2d 534, 537 (1986) (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).
The record here discloses that the police (1) were armed
with information that a wanted person, appellant, described as an
eighteen-year-old white male, approximately six feet tall, with
red hair fashioned in a ponytail, was driving a green GEO Storm
and could be found in a designated motel room, and (2)
corroborated a substantial portion of the information, including
the existence of outstanding misdemeanor arrest warrants for
appellant. Upon arrival at the motel, the police sighted the GEO
Storm in front of the designated room, and they knocked on the
door to conduct further inquiry. After the door had opened and
before the officers entered the motel room, they saw a white male
who "perfectly" matched the description. See Bulatko, 16 Va.
App. at 137, 428 S.E.2d at 307 (upholding reasonable suspicion to
stop auto where every fact related by informant, including make,
color, and license plate number of vehicle, and fact of accused's
habitual offender status, were independently corroborated by
officer and only fact remaining to be corroborated was identity
of driver as accused).
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The police then had reason to believe that appellant was the
wanted person named in the misdemeanor warrants, and they
properly entered the room and took appellant into custody. See
Payton v. New York, 445 U.S. 573, 603 (1980) (in case involving
warrantless felony arrest, holding that, "for Fourth Amendment
purposes, an arrest warrant founded on probable cause implicitly
carries with it the limited authority to enter a dwelling in
which a suspect lives when there is reason to believe the suspect
is within"); United States v. Spencer, 684 F.2d 220, 222-24
(2d Cir. 1982) (in case involving bench warrant issued for
failure to appear on misdemeanor warrants, holding that Payton is
not limited to felony warrants and applies to any arrest warrant
issued by a neutral magistrate), cert. denied, 459 U.S. 1109
(1983). Upon confirming that appellant was, in fact, the wanted
person, they arrested him on the outstanding misdemeanor warrants
as permitted by Code § 19.2-81. After simultaneously being told
by Maloney, in the room, and appellant, three feet outside the
room, that a gun and knife were under a bed mattress, the police
located a stolen gun and knife that support both verdicts.
Forewarned that the wanted person would have a gun and knife and
would "fight" the police, after verifying the other facts that
had been reported to them by the dispatcher, the police properly
made inquiry and conducted a follow-up search for the weapons
contemporaneous with appellant's arrest.
The trial court properly held that the limited search of the
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motel room and seizure of the weapons found under the mattress
did not constitute an unreasonable search and seizure. See
White, 24 Va. App. at 450-51, 482 S.E.2d at 878.
SUFFICIENCY OF THE EVIDENCE
On appeal, the judgment of the trial court is presumed to be
correct. See Johnson v. Commonwealth, 12 Va. App. 391, 396, 404
S.E.2d 384, 387 (1991). On appeal,
we review the evidence in the light most
favorable to the Commonwealth, granting to it
all reasonable inferences fairly deducible
therefrom. The judgment of a trial court
sitting without a jury is entitled to the
same weight as a jury verdict and will not be
set aside unless it appears from the evidence
that the judgment is plainly wrong or without
evidence to support it.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
In challenging the sufficiency of the evidence to support
his convictions for possession of a firearm by a convicted felon
and grand larceny, appellant contests only the Commonwealth's
proof of possession.
Proof that appellant possessed the gun found under the
mattress, either actually or constructively, was sufficient to
support his conviction for possession of a firearm by a convicted
felon. See Blake v. Commonwealth, 15 Va. App. 706, 708-09, 427
S.E.2d 219, 220-21 (1993) (holding that principles applicable to
constructive possession of drugs also apply to constructive
possession of firearm).
To support a conviction based upon
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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 [contraband] and that it was
subject to his dominion and control."
Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845
(1986) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316
S.E.2d 739, 740 (1984)). Possession "need not always be
exclusive. The defendant may share it with one or more."
Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497
(1990) (en banc).
Although mere proximity to the contraband is insufficient to
establish possession, it is a factor that may be considered in
determining whether a defendant possessed the contraband. See
Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882
(1992) (en banc). Ownership or occupancy of the premises on
which the contraband was found is likewise a circumstance
probative of possession. See Drew, 230 Va. at 473, 338 S.E.2d at
845 (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).
Circumstantial evidence of such 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). However, "[t]he
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Commonwealth need only exclude reasonable hypotheses of innocence
that flow from the evidence, not those that spring from the
imagination of the defendant." Hamilton v. Commonwealth, 16 Va.
App. 751, 755, 433 S.E.2d 27, 29 (1993). Whether an alternative
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, therefore, is binding on appeal unless plainly
wrong. See Martin, 4 Va. App. at 443, 358 S.E.2d at 418.
The only reasonable hypothesis flowing from the evidence in
this case is that appellant was aware of the presence of the gun
beneath the mattress and that it was subject to his dominion and
control. When questioned by police regarding whether there were
any weapons in the room, defendant said there might "possibly
[be] a gun or knife under one of the beds." The police
immediately found the gun under one of the mattresses, lying
directly beside a knife that appellant admitted was his.
Although appellant denied ownership of the gun, its presence with
his knife and his earlier statement indicating his awareness of
its presence permitted the inference "that appellant exercised
the dominion and control necessary to show constructive
possession." See Blake, 15 Va. App. at 709, 427 S.E.2d at 221.
The trial court, as the finder of fact, was free to reject
appellant's statement to Officer Phillips that someone else had
placed the gun under the mattress, or, alternatively, to find
that appellant exercised joint possession of the gun with his
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girlfriend or another.
We hold that this same evidence is sufficient to prove the
possession necessary to support appellant's conviction for grand
larceny. The unexplained possession of recently stolen goods
permits the fact finder to infer that the possessor is the thief.
See Bright v. Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d 443,
444 (1987). In order for the presumption to arise, the
possession must be exclusive, but "[o]ne can be in exclusive
possession of an item when he jointly possesses it with another,"
as long as "the accused was consciously asserting at least a
possessory interest in the stolen property or was exercising
dominion over [it]." Best v. Commonwealth, 222 Va. 387, 389, 282
S.E.2d 16, 17 (1981).
As set forth above, appellant told Officer Phillips that
there might be a gun and knife under the mattress. After the
police found the gun and knife secreted together under the
mattress, appellant admitted that the knife belonged to him,
thereby permitting the inference that he exercised dominion and
control over the gun, as well. Appellant told Officer Phillips
that several of his friends had been in the motel room that day
and that he thought the gun belonged to one of them. However,
appellant and his girlfriend, and no one else, were present in
the motel room along with the gun. This evidence, viewed as a
whole, permitted the trial judge to conclude that appellant,
"[a]t the very least[,] . . . was in joint constructive
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possession of the gun," thereby invoking the presumption that
appellant was the thief.
For these reasons, we hold that the search of appellant's
motel room was not unreasonable and that the evidence of his
constructive possession of a firearm was sufficient to support
his convictions for grand larceny of the firearm and possession
of a firearm by a convicted felon. Accordingly, the judgment of
the trial court is affirmed.
Affirmed.
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