Elbert Lamont McCain v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata
Argued at Alexandria, Virginia
ELBERT LAMONT McCAIN
MEMORANDUM OPINION * BY
v. Record No. 2368-99-3 JUDGE ROSEMARIE ANNUNZIATA
JULY 18, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Elwood Earl Sanders, Jr., Appellate Defender
(S. Jane Chittom, Appellate Counsel; Public
Defender Commission, on brief), for
appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
Appellant, Elbert Lamont McCain, appeals his conviction by
the trial court without a jury for possession of cocaine with
the intent to distribute in violation of Code § 18.2-248, and of
possession of a firearm while possessing cocaine with the intent
to distribute in violation of Code § 18.2-308.4(B). He contends
the searches of him and his vehicle violated his rights under
the Fourth Amendment and that the evidence was insufficient to
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
sustain the convictions. 1 For the reasons that follow, we affirm
the convictions.
We review the evidence on appeal in the light most
favorable to the Commonwealth, and grant to it all reasonable
inferences that may be fairly drawn from it. See Glasco v.
Commonwealth, 26 Va. App. 763, 773, 497 S.E.2d 150, 155 (1998),
aff'd, 257 Va. 433, 513 S.E.2d 137 (1999). At approximately
2:00 a.m. on March 16, 1999, Richard Thomas, a police officer in
Danville, was patrolling the Grove Street/Gay Street area of the
city after the police department received several reports of
drug activity and suspicious people there.
McCain was sitting in his parked car with another
individual in front of an apartment building on Grove Street.
Thomas saw the car, then drove around the block and called for
another officer to assist him in the investigation. He returned
to Grove Street and pulled in behind the vehicle. A black
female who had not been there previously was leaning into the
driver's door. In addition to his headlights, Thomas
illuminated his spotlight and directed it toward McCain's
vehicle.
1
McCain was sentenced to seven years in prison and a fine
of $700 on the first charge and three years in prison on the
second. The court suspended the prison sentence on condition he
serve four years in prison, followed by one year of probation
and five years of good behavior.
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As Thomas exited his vehicle and approached the car, the
woman began to walk away. Thomas stopped her and asked, "what
was going on." She responded that "she was talking with her
brother" and continued walking. Thomas returned to the car and
shined his flashlight into the back seat "to make sure that
there[ ] [was] nothing that[ ] [was] going to surprise me."
When Thomas asked McCain what he was doing there, McCain
responded that he had come to see his brother who lived in the
apartments in front of which he was parked. He also told Thomas
that the woman who had just left was "a friend."
McCain handed Thomas a valid driver's license upon the
officer's request for identification. The passenger in the
vehicle, Samuel Glass, did not have identification but provided
his name and a valid social security number and address. Thomas
"ran both of their social security numbers, and checked [for
outstanding] warrants. They both came back clean."
After Thomas returned McCain's driver's license to him he
asked McCain if there were any weapons or contraband in the
vehicle. McCain responded in the negative. When Thomas asked
for permission to search the car, McCain consented. Thomas
asked both men to exit the car and move to the back of it. He
approached McCain and explained, "For my safety, I'm gonna pat
you down for a weapon." McCain "started getting a little irate"
and asked Thomas why a search of his person was necessary.
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Thomas told McCain the pat-down was for Thomas' safety and
stated that Thomas had a right to pat him down for weapons.
McCain began turning away, saying he did not want Thomas to
touch him, stepping backwards as he spoke. Thomas followed, but
ultimately permitted McCain to walk up the sidewalk to avoid
getting caught between McCain and Glass without a back-up
officer on the scene. Thomas patted down Glass and then
redirected his attention to McCain, who had walked about 35 feet
to the front door of the apartments and was banging loudly on
the door asking someone to open it. A chain link fence and a
gate separated the sidewalk from the yard in front of the house.
As Thomas began to walk towards the area near the gate, McCain
walked to the right of the front door behind a set of steps that
led to the second floor. Through decorative openings in a
concrete wall that separated him from McCain, Thomas could see
the shadow of McCain's arm reach out, and he could hear the
sound of metal rubbing against metal. After McCain walked back
behind the steps towards the front door, Thomas approached him,
followed by Officer Church. Thomas again explained that he was
going to pat McCain down for the officers' safety. McCain
permitted the pat-down; nothing unusual was found.
Thomas retraced McCain's steps to the area behind the
stairs, and there found a metal grocery cart. A handgun was
inside the cart. Thomas walked back to McCain, held up the gun
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and asked, "What was this?" McCain reacted by fleeing through
the front gate. Thomas gave chase, calling out that he was
under arrest for carrying a concealed weapon. Thomas caught up
with McCain after McCain fell as he turned left onto Monroe
Street. After a brief struggle, Officers Thomas, Church and
Guill succeeded in handcuffing McCain. As they lifted McCain
from the ground, Thomas found a digital scale and its cover
"right below his person." Upon searching McCain, Thomas found a
small bag containing a white rock substance later determined to
be cocaine in McCain's right front pocket, $937 in cash in
another pocket, and a change purse. Thomas opened the change
purse at the jail and found an additional $9.36 and a small
plastic bag containing a white powder substance, also determined
to be cocaine.
In the course of inventorying McCain's car, Thomas found a
pager, a cell phone, and a plastic bag containing two
individually wrapped, large off-white substances in rock form.
The white substances proved to be cocaine, weighing almost 60
grams.
THE MOTION TO SUPPRESS
When a motion to suppress is reviewed on appeal, we examine
the records of both the suppression hearing and the trial to
determine whether the evidence was lawfully seized. See Spivey
v. Commonwealth, 23 Va. App. 715, 721, 479 S.E.2d 543, 546
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(1997). The burden is on the defendant to demonstrate that the
trial court's ruling was "plainly wrong." Mu'Min v.
Commonwealth, 239 Va. 433, 440, 389 S.E.2d 886, 891 (1991). We
review de novo "ultimate questions of reasonable suspicion and
probable cause to make a warrantless search"; the determination
is a "mixed question of law and fact." McGee v. Commonwealth,
25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc)
(quoting Ornelas v. United States, 517 U.S. 690, 691 (1996)).
While we are "bound by the trial court's findings of historical
fact unless 'plainly wrong' or without evidence to support them"
and 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, "we apply de novo our own legal analysis of
whether based on those facts a seizure occurred." Id. (citing
Satchell v. Commonwealth, 20 Va. App. 641, 648, 460 S.E.2d 253,
256 (1995) (en banc)).
"[I]f an officer has an 'articulable and reasonable
suspicion that . . . an occupant [of a vehicle] is . . . subject
to seizure for violation of the law,' the officer may conduct an
investigatory stop of the vehicle limited in time and scope to
ascertaining whether the suspicions are accurate." Bailey v.
Commonwealth, 28 Va. App. 724, 727, 508 S.E.2d 889, 890 (1999)
(quoting Delaware v. Prouse, 440 U.S. 648, 663 (1979)). "[T]he
act of requiring a person who has been operating a motor vehicle
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upon the public highways to produce an operator's license, is a
restraint upon the individual's freedom of movement and
constitutes a seizure of the person." Brown v. Commonwealth, 17
Va. App. 694, 697, 440 S.E.2d 619, 621 (1994); see Bailey, 28
Va. App. at 727, 508 S.E.2d at 890; Richmond v. Commonwealth, 22
Va. App. 257, 260-61, 468 S.E.2d 708, 709-10 (1996). In such an
encounter, "a reasonable person in [the defendant's]
circumstances would not . . . believe[ ] that he could terminate
the encounter once the officer retained the driver's license and
returned to his police vehicle to run a record check."
Richmond, 22 Va. App. at 261, 468 S.E.2d at 710.
Officer Thomas testified that on the date in question, the
police had received several reports of individuals possibly
engaged in drug distribution in the vicinity of Grove Street and
Gay Street. At approximately 2:00 a.m., he observed McCain's
vehicle parked on Grove Street, with an individual leaning into
the driver's side window. Given the reports received by the
police of possible drug activity in that area, and Thomas'
observation of an individual leaning into the window of a car
parked on Grove Street at that very late hour, it was reasonable
for Thomas to suspect there might be a drug transaction taking
place. His limited investigation of McCain was therefore
appropriate. By demanding McCain's driver's license and
equivalent information from Glass in the course of his
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investigation, and proceeding to conduct a check for outstanding
warrants, Thomas effected a seizure of the two men. See id.;
Brown, 17 Va. App. at 697, 440 S.E.2d at 621. 2 However, because
Thomas' action was supported by reasonable suspicion, the
seizure was lawful.
It only remains to determine whether the search was proper.
We find that it was proper, based upon McCain's consent to the
search. "[S]earches made by the police pursuant to a valid
consent do not implicate the Fourth Amendment." McNair v.
Commonwealth, 31 Va. App. 76, 82, 521 S.E.2d 303, 306 (1999) (en
banc) (citing Mincey v. Arizona, 437 U.S. 385, 390 (1978)). "A
consensual search is reasonable if the search is within the
scope of the consent given." Bynum v. Commonwealth, 23 Va. App.
412, 417, 477 S.E.2d 750, 753 (1996) (citation omitted). When
Thomas asked about the presence of weapons or contraband in the
vehicle, he was granted permission to search it. The pager,
2
The Commonwealth's reliance on Richmond is misplaced. The
Commonwealth contends that in Richmond we found a seizure only
because the police officer did not return the defendant's
license after he took it. The Commonwealth relies upon our
quotation from United States v. Lambert, 46 F.3d 1064, 1068
(10th Cir. 1995), for this assertion ("[W]hat began as a
consensual encounter quickly became an investigative detention
once the [officer] received [appellant's] driver's license and
did not return it to him."). The facts of Richmond belie this
contention, however, as the officer there returned the
defendant's license before the challenged evidence was
discovered. Thus, insofar as the language quoted from Lambert
suggests that a seizure only occurs when an officer fails to
return the defendant's license, that language is dicta.
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cell phone and cocaine later found as a result of the search
were properly admitted into evidence.
When Thomas sought consent to conduct a pat-down search,
McCain refused and walked away from the officer to the front
door of the apartments on Grove Street. While McCain stood
behind the stairs of the apartment building, Thomas heard a
"metal on metal" sound and saw the shadow of McCain's arm reach
over the metal grocery cart where McCain was standing. When
McCain returned to where Thomas and Glass were standing, he
permitted the pat-down. However, the search produced nothing of
any consequence.
After searching McCain's person, Officer Thomas
investigated behind the stairs of the apartment building and
found the handgun McCain had deposited there. When Thomas
presented the gun to McCain and asked, "What was this?," McCain
instantly fled. McCain's flight after being shown and asked
about the gun, when viewed together with all the circumstances
of the case, gave rise to probable cause to arrest him for
possession of a concealed weapon. See Langhorne v.
Commonwealth, 13 Va. App. 97, 102, 409 S.E.2d 476, 479 (1991);
see also Illinois v. Wardlow, 120 S. Ct. 673, 676 (2000). The
evidence found in the course of searching McCain incident to his
arrest, which included cocaine and some $937 in cash, was
therefore properly admitted into evidence. See Commonwealth v.
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Gilmore, 27 Va. App. 320, 327, 498 S.E.2d 464, 468 (1997) ("One
of the established exceptions to the Fourth Amendment's warrant
requirement is for a 'search incident to a lawful arrest.'"
(quoting United States v. Robinson, 414 U.S. 218, 224 (1973))).
SUFFICIENCY OF THE EVIDENCE
"On appeal, we view the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Hunley v. Commonwealth,
30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999). The judgment
of a trial court will be disturbed only if plainly wrong or
without evidence to support it. See id. The credibility of the
witnesses, the weight accorded the testimony, and the inferences
to be drawn from proved facts are matters to be determined by
the fact finder. See id.Proof of Intent to Distribute
"'Because direct proof of intent [to distribute] is often
impossible, it must be shown by circumstantial evidence.'"
White v. Commonwealth, 25 Va. App. 662, 668, 492 S.E.2d 451, 454
(1997) (en banc) (quoting Servis v. Commonwealth, 6 Va. App.
507, 524, 371 S.E.2d 156, 165 (1988)). "'[A]ll necessary
circumstances proved must be consistent with guilt and
inconsistent with innocence and exclude every reasonable
hypothesis of innocence.'" Barksdale v. Commonwealth, 31
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Va. App. 205, 211, 522 S.E.2d 388, 391 (1999) (quoting Dukes v.
Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 (1984)).
Factors which may be considered to determine intent include
the quantity of drugs found, the presence of an unusual amount
of money, the presence of drug paraphernalia consistent with
involvement in the drug trade rather than personal use, such as
a scale, see Welshman v. Commonwealth, 28 Va. App. 20, 37, 502
S.E.2d 122, 130 (1998) (en banc), or a pager, see White, 25
Va. App. at 668, 492 S.E.2d at 454, and the presence of
firearms, which are also "recognized as tools of the drug trade,
the possession of which are probative of intent to distribute."
Glasco, 26 Va. App. at 775, 497 S.E.2d at 156. Here, the police
found 59.96 grams of cocaine in McCain's car, 55 of which were
packaged in two separate blocks in a single plastic bag. Cf.
White, 25 Va. App. at 664, 492 S.E.2d at 452 (1.54 grams of
cocaine found, a relatively small amount). The amount and the
packaging of the drugs possessed supports the conclusion that
McCain possessed cocaine with the intent to distribute. The
absence of evidence that McCain used drugs, the discovery of a
relatively large amount of cash in his possession, and the
presence of scales, a pager, and a .40 caliber semi-automatic
handgun, together constitute a body of evidence which
establishes beyond a reasonable doubt that McCain possessed the
cocaine with the intent to distribute it.
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Sufficiency of the Evidence on the Possession of the Firearm
Under Code § 18.2-308.4,
actual possession of both the firearm and
the controlled substance is not required
. . . . Constructive possession of either
or both is sufficient for conviction. 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 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.
Jefferson v. Commonwealth, 14 Va. App. 77, 80, 414 S.E.2d 860,
862 (1992) (internal quotation omitted).
While the evidence in this case is circumstantial, we find
that it is sufficient to support McCain's convictions beyond a
reasonable doubt. The trier of fact could reasonably infer from
the chain of circumstances that McCain had the handgun on his
person when he initially refused consent to the pat-down. After
his attempt to enter his friend's house, McCain walked to the
side of the house, deposited the gun in the shopping cart behind
the concrete wall, and returned. He consented to the pat-down
only at that point, knowing the police officer would find
nothing on his person. The officer had previously seen the
shadow of McCain's arm reach out over the cart, and had heard
the sound of metal against metal. Nothing but the metal handgun
was found in the metal shopping cart afterwards. See Powell v.
Commonwealth, 27 Va. App. 173, 178, 497 S.E.2d 899, 901 (1998);
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Collins v. Commonwealth, 13 Va. App. 177, 178, 409 S.E.2d 175,
175 (1991). McCain's flight when confronted with the gun Thomas
found in the grocery cart was itself evidence of his guilt. See
Wardlow, 120 S. Ct. at 676; Langhorne, 13 Va. App. at 102, 409
S.E.2d at 479. Additionally, McCain's flight gave the trier of
fact a basis to conclude that McCain was lying about possession
of the gun to conceal his guilt. See Marable v. Commonwealth,
27 Va. App. 505, 510-11, 500 S.E.2d 233, 236 (1998).
We find the evidence in the case sufficient beyond a
reasonable doubt to support the convictions and affirm.
Affirmed.
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