COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Overton
Argued at Norfolk, Virginia
DAVID S. SHEARS
OPINION BY
v. Record No. 1928-95-1 JUDGE JOSEPH E. BAKER
NOVEMBER 5, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
John D. Gray, Judge
Oldric J. LaBell, Jr., for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
David S. Shears (defendant) was convicted in a bench trial
on separate indictments charging two offenses of cocaine
possession with intent to distribute, two related firearm charges
and possession of marijuana with intent to distribute. He
complains on appeal that the trial court erroneously admitted
evidence gathered during an unlawful search and seizure and
wrongfully convicted him of the two cocaine offenses arising from
a single act of possession. He also challenges the sufficiency
of the evidence to support the marijuana conviction. Finding no
error, we affirm the trial court.
The Commonwealth's evidence is uncontradicted. Hampton
Police Detective Olen Payne, assisted by Detectives John Decker
and others, was pursuing an arrest of Clyde Boyce on "outstanding
murder warrants." Planning to entice Boyce into custody, police
enlisted an informant to telephone Boyce, a known narcotics
dealer, and solicit a drug purchase from him. After the
informant confirmed the contact with Boyce, the detectives
secreted themselves in and about the informant's mobile home and
awaited Boyce's arrival to consummate the transaction. Boyce
reputedly delivered drugs "moments" after a "call," and, within a
"few minutes," an automobile arrived and defendant exited and
entered the trailer.
Hidden in the rear of the residence, Detective Payne
observed defendant and heard him declare, "This better not be no
set up," to someone in the kitchen area. Although Payne had
never before seen either Boyce or defendant, defendant's
appearance was consistent with the physical description of Boyce
which, together with the attendant circumstances, prompted Payne
to mistakenly identify defendant as Boyce. Intending to then
effect an arrest of Boyce, Payne, assisted by other officers,
forced defendant to the floor and handcuffed him. Immediately
thereafter, police discovered a "small bag" of cocaine on the
kitchen floor, "right at that point where [defendant] initially
was standing." A "similar bag" was found by Detective Burton in
1
defendant's trouser pocket during a search incidental to arrest.
While still at the scene, Detective Burton advised defendant
of his Miranda rights and asked, "how long had he been selling
crack cocaine?" Defendant responded, "a couple of weeks," and
1
Defendant was initially arrested pursuant to the
outstanding felony warrant for Boyce. Detective Burton made a
subsequent arrest for possession of the cocaine.
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provided Burton with the address of a residence which he shared
with his uncle, Mollow Shears, the individual who had accompanied
defendant to the informant's trailer. Based upon this
information, Detective Decker then obtained and executed a search
warrant for the Shears' residence.
The ensuing search revealed a large cache of narcotics and
handguns, together with "personal papers" belonging to defendant,
located in one of two bedrooms in the home. Documents related to
defendant included his operator's license, birth certificate, GED
diploma and current motor vehicle registration. Also in this
room, Decker found numerous "plastic bags" containing cocaine,
plastic bags concealing twenty-eight individual packages of
marijuana, aggregating 86.6 grams at analysis, a "pager,"
$1,517.50 in cash and coin, and several firearms. A "set" of
scales was found in the kitchen area of the home. Additionally,
a pistol "box" was discovered in the bedroom bearing the make,
model and serial number of a firearm discovered in the car which
brought defendant to the informant's trailer.
THE SEARCH
Defendant first contends that the trial court erroneously
declined to suppress all evidence seized by police, arguing that
it resulted from an "illegal" initial arrest.
Upon appeal from a trial court's denial of a motion to
suppress, we must review the evidence in the light most favorable
to the prevailing party, granting to it all reasonable inferences
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fairly deducible therefrom. Commonwealth v. Grimstead, 12 Va.
App. 1066, 1067, 407 S.E.2d 47, 48 (1991); Reynolds v.
Commonwealth, 9 Va. App. 430, 436, 388 S.E.2d 659, 663 (1990).
Determinations of reasonable suspicion and probable cause require
de novo review on appeal. Ornelas v. United States, 116 S. Ct.
1657, 1663 (1996). However, a trial court's "findings of
historical fact" should be reviewed only for "clear error."
Moreover, "due weight" must be given to "inferences drawn from
those facts by resident judges and local law enforcement
officers," and to "a trial court's finding that [an] officer was
credible and [that his or her] inference was reasonable." Id.
Defendant's argument implicitly acknowledges the long
recognized principle which permits warrantless searches of
persons lawfully arrested. However, his assertion that the
police lacked probable cause to arrest in this instance ignores
the inherent authority of the outstanding felony warrant which
generated the police action. Probable cause justifying the
arrest of the person named in the warrant was established upon
the issuance of that process. See Code § 19.2-72. While the
record does not confirm that Detective Payne actually possessed
the warrant, he was, nevertheless, privy to its contents and
existence and, therefore, both empowered and duty bound to arrest
the named accused, Clyde Boyce. Crowder v. Commonwealth, 213 Va.
151, 152-53, 191 S.E.2d 239, 239-40 (1972); see Code § 19.2-81.
The ruse employed by the detectives to lure Boyce to the trailer
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would not have tainted his arrest pursuant to the existing
warrant. See Limonja v. Commonwealth, 8 Va. App. 532, 538-39,
383 S.E.2d 476, 480 (1989) (en banc), cert. denied, 495 U.S. 905
(1990).
These principles are equally controlling "[i]f the police
have a valid arrest warrant for one person and they reasonably
and in good faith arrest another." United States v. McEachern,
675 F.2d 618, 621 (4th Cir. 1982) (citing Hill v. California, 401
U.S. 797, 802-04 (1971)); see also 3 Wayne R. LaFave, Search &
Seizure § 5.1(g), at 56-57 (3d ed. 1996). Thus, given probable
cause to arrest Boyce pursuant to the warrant, "the only issue is
whether [Detective Payne's] mistaken belief that [Boyce] and
[defendant] were one and the same person was reasonable and in
good faith." McEachern, 675 F.2d at 621; see also Hill, 401 U.S.
at 802-04; DeChene v. Smallwood, 226 Va. 475, 479, 311 S.E.2d
749, 751, cert. denied, 469 U.S. 857 (1984).
It is uncontroverted that the detectives were vested with
the authority of the warrant for Boyce when defendant was
arrested at the informant's trailer. The informer was instructed
to telephone Boyce, an individual known to police as a drug
dealer reputed for quick response to solicitations. Within
minutes after the informer advised the detectives that he had
contacted Boyce as directed, defendant arrived and entered the
trailer. The detectives had previously seen neither defendant
nor Boyce, but defendant's appearance was consistent with Boyce's
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"general description," and his comments were suggestive of an
impending narcotics transaction. Under such circumstances, the
police clearly acted both in good faith and reasonably in
arresting defendant, as Boyce, albeit in error.
DOUBLE JEOPARDY
Defendant next argues that the cocaine possessed at the
informant's trailer and at his residence constituted a single
offense, a "long transaction of illegal possession," multiple
prosecutions for which violated the double jeopardy proscriptions
of the United States Constitution.
The Double Jeopardy Clause of the Fifth Amendment
protects against a second prosecution for the
same offense after acquittal. It protects
against a second prosecution for the same
offense after conviction. And it protects
against multiple punishments for the same
offense.
Brown v. Ohio, 432 U.S. 161, 165 (1977); see U.S. Const. amend.
V; Va. Const. art. I, § 8; Sullivan v. Commonwealth, 16 Va. App.
844, 846, 433 S.E.2d 508, 509-10 (1993) (en banc). "The issue of
multiple punishments actually arises in two contexts. First, two
or more statutes . . . proscribe . . . particular . . . conduct
as criminal offenses. Second, . . . conduct may constitute more
than one violation of a single criminal proscription." Jordan v.
Commonwealth, 2 Va. App. 590, 593, 347 S.E.2d 152, 154 (1986)
(citations omitted). Here, defendant asserts that he was
unconstitutionally punished by convictions on two indictments
arising from a single criminal enterprise, the possession of
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cocaine with intent to distribute in violation of Code
§ 18.2-248. 2
"When considering multiple punishments for a single
transaction, the controlling factor is legislative intent."
Kelsoe v. Commonwealth, 226 Va. 197, 199, 308 S.E.2d 104, 104
(1983). The legislature "may determine the appropriate 'unit of
prosecution' and set the penalty for separate violations."
Jordan, 2 Va. App. at 594, 347 S.E.2d at 154. Therefore,
although multiple offenses may be the "same," an accused may be
3
subjected to legislatively "authorized cumulative punishments."
Id. It is judicial punishment in excess of legislative intent
which offends the double jeopardy clause. Id.
In enacting Code § 18.2-248, the General Assembly declared
it "unlawful for any person to . . . sell, . . . or possess with
intent to . . . sell . . . a controlled substance." Code
§ 18.2-248(A). Code § 18.2-248(C) prescribes the punishment for
"[a]ny person who violates this section with respect to a
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controlled substance classified in Schedule I or II." The
2
Because defendant was tried simultaneously on both
indictments, multiple prosecution for a single act or offense was
not in issue. Clagett v. Commonwealth, 252 Va. 79, 95, 472
S.E.2d 263, 272 (1996).
3
The well established Blockburger test, applicable "where
the same act or transaction constitutes a violation of two
distinct statutory provisions," is irrelevant in this context.
Blockburger v. United States, 284 U.S. 299, 304 (1932).
4
Cocaine is a Schedule II controlled substance. Code
§ 54.1-3448.
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gravamen of the offense is clearly possession of the specified
drug with the requisite intent. Thus, each distinguishable
incident of the offending conduct constitutes a "unit of
prosecution" for violation of the statute. See, e.g., Kelsoe,
226 Va. at 198-99, 308 S.E.2d at 104 (defendant convicted of
three violations for simultaneously brandishing the same firearm
at three persons); Sullivan, 16 Va. App. at 847-48, 433 S.E.2d at
510-11 (defendant convicted of two robberies, and related firearm
offenses, from two clerks at the same video store); Jordan, 2 Va.
App. at 597, 347 S.E.2d at 156 (defendant convicted of two
robberies, and related firearm offenses, from employees of a
single restaurant).
Here, defendant does not dispute on appeal that he actually
possessed cocaine at the informant's trailer for purposes of
immediate distribution to a prospective buyer. Manifestly, such
conduct constitutes a violation of Code § 18.2-248 separate from
the constructive possession of like drugs elsewhere, despite a
similar criminal purpose. Hence, defendant committed two
distinct violations of a single criminal proscription and was
appropriately subject to attendant cumulative punishments.
SUFFICIENCY
Lastly, defendant asserts that the evidence failed to
establish the requisite intent to distribute the marijuana. In
reviewing this challenge to the conviction, we must consider the
evidence in the light most favorable to the Commonwealth. Martin
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v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
Defendant's conviction required the Commonwealth to prove
that he "'intentionally and consciously possessed' [marijuana],
either actually or constructively, with knowledge of its nature
and character, together with the intent to distribute it."
Wilkins v. Commonwealth, 18 Va. App. 293, 298, 443 S.E.2d 440,
444 (1994) (en banc) (quoting Josephs v. Commonwealth, 10 Va.
App. 87, 99-102, 390 S.E.2d 491, 497-99 (1990) (en banc)).
[P]ossession of a controlled substance may be
actual or constructive. "To support a
conviction based upon constructive
possession, 'the Commonwealth must point to
evidence of acts, statements, or conduct of
the accused or other facts or circumstances
which . . . [prove] 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) (citations omitted). "Because direct proof of [the]
intent [to distribute] 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). Circumstances relevant to
proof of an intent to distribute include the "quantity of drugs
and cash possessed, the method of packaging," Poindexter v.
Commonwealth, 16 Va. App. 730, 735, 432 S.E.2d 527, 530 (1993),
and the presence of paraphernalia related to distribution.
Hambury v. Commonwealth, 3 Va. App. 435, 438, 350 S.E.2d 524, 525
(1986).
Here, a search of defendant's residence disclosed no less
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than 86.6 grams of marijuana, packaged in twenty-eight individual
plastic bags, in a bedroom of defendant's residence together with
several documents, important and personal to defendant, and
substantial cash and firearms. Elsewhere in the residence,
police discovered scales. Significantly, defendant admitted to
Detective Burton that he was then actively involved in the
narcotics trade. Such evidence, considered with other facts and
the circumstances established in the record, clearly supports the
trial court's finding that defendant constructively possessed the
marijuana found in his bedroom with the intent to distribute it.
Accordingly, we affirm the conviction.
Affirmed.
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