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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