Wallace Lee Stokes v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Clements
Argued by teleconference
WALLACE LEE STOKES
MEMORANDUM OPINION * BY
v. Record No. 0544-01-1 JUDGE JEAN HARRISON CLEMENTS
AUGUST 27, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Walter J. Ford, Judge
Timothy G. Clancy (Moschel, Gallo & Clancy,
L.L.C., on brief), for appellant.
Steven A. Witmer, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
Wallace Lee Stokes was convicted in a bench trial of
possession of cocaine in violation of Code § 18.2-250. On appeal,
he contends the trial court erred (1) in denying his motion to
suppress the cocaine because the search warrant pursuant to which
the cocaine was found was not supported by probable cause and the
good faith exception to the warrant requirement did not apply and
(2) in finding the evidence sufficient to prove he constructively
possessed the cocaine. Finding no error, we affirm the
conviction.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
proceedings as necessary to the parties' understanding of the
disposition of this appeal.
I. MOTION TO SUPPRESS
On May 14, 1999, Detective R. Clements filed an affidavit
in support of his application for a search warrant for "1809 W.
Mercury Blvd., Room 110, Hampton, Virginia" for the purpose of
searching for "cocaine, U.S. currency derived from the sale of
cocaine, all records and documents . . . relating to the sale,
purchase and distribution of cocaine, and all other drug related
paraphernalia." The affidavit stated as follows:
On 05/14/99, this affiant was contacted
by Hampton Uniform Patrol Officers Pryor and
Wideman. The officers advised that Officer
Wideman had observed a 1989 reddish color
Mercedes vehicle that had been seen
travelling on Colesium [sic] Drive. The
officers continued to advise that Officer
Wideman had seen a black male subject
driving that Mercedes vehicle who fit the
description of Wallace Stokes (aka –
"Gate"). Both Officer Wideman and Officer
Pryor had knowledge that Wallace Stokes had
an outstanding Hampton arrest warrant on
file and therefore, a traffic stop was
effected on southbound I664 at Hampton City
line. As a result of the traffic stop,
Wallace Stokes was verified to be the driver
and was subsequently arrested.
This affiant has knowledge that Wallace
Stokes (aka – "Gate") has been seen on
several occasions in the company of other
known drug dealers who are involved in a
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federal drug investigation. Furthermore,
Hampton Police Officer C. Miller responded
to the scene of the traffic stop with his
trained certified drug sniffing K-9.
Officer Miller advises that his trained
certified drug sniffing K-9 reacted in a
positive manner for the odor of narcotics
outside the 1989 reddish colored Mercedes.
After alerting in a positive manner, the K-9
went inside the vehicle and continued to
alert in a positive manner in several other
locations.
Further investigation revealed that
Wallace Stokes had in his possession at the
time of his arrest, a hotel room key.
Investigation revealed that the key returned
to Room 110 of the Hampton Quality Inn,
located at 1809 W. Mercury Blvd. Further
investigation revealed that Wallace Stokes
was the only individual registered to this
room and that the room had been registered
in his name for a "half day" only. The
hotel management advises that check out time
for the room is 12:00 noon on this day.
This affiant has knowledge, through my
training and experience, that drug dealers
use hotel and motel rooms to store drugs
and/or conduct their illegal drug
transactions.
Following an indication on the affidavit that the facts set
forth in the affidavit were based both on affiant's personal
knowledge and on information relayed to him by others, the
affidavit further stated:
Officers Wideman, Pryor and Miller are
sworn Hampton Police Officers with varying
years and degrees of experience. This
affiant has personal knowledge that each of
these officers have [sic] made numerous drug
arrest(s) [sic].
This affiant is a sworn police officer
for the City of Hampton, Virginia, for the
past eight years. This affiant worked with
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the Special Investigations Unit of the
Hampton Police Division for two and a half
years before being assigned to the Peninsula
Narcotics Enforcement Task Force for seven
months. This affiant is now currently
reassigned back to the Special
Investigations Unit. This affaint [sic] has
attended many various schools and training
seminars dealing with illegal drugs during
this affiant's employment with the Hampton
Police Division. This affiant has conducted
many drug investigations and has been
certified in, at least, two individual
Circuit Courts in the City of Hampton, as
well as, in Federal Court as an expert
witness in narcotic investigations. This
affiant knows through this experience that
drug dealers often maintain assorted records
of their illegal drug possession and
sales/distribution.
Based on the affidavit, the magistrate issued a search
warrant that same date for Room 110 of the Hampton Quality Inn.
Upon execution of the warrant, the police found cocaine inside
the room. At the hearing on Stokes' motion to suppress, the
trial court denied the motion, finding that the facts in the
affidavit justified the issuance of the search warrant.
On appeal, Stokes contends the search of the hotel room was
illegal because the underlying affidavit for the warrant did not
provide a substantial basis for the magistrate to determine
probable cause. The affidavit, Stokes argues, did not allege
that Stokes was a drug dealer or that he was involved in any
criminal activity. It did not indicate, Stokes continues, that
drugs were found on his person or in the car he was driving or
that the outstanding warrant on which he was stopped and
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arrested was drug related. Likewise, Stokes argues, although
the affidavit stated that a police dog had reacted positively to
the odor of drugs outside and inside the car, there was nothing
in the affidavit indicating that the car was his or describing
how long or under what circumstances he had it in his
possession.
Relying on Janis v. Commonwealth, 22 Va. App. 646, 652, 472
S.E.2d 649, 652-53, aff'd on reh'g en banc, 24 Va. App. 207, 479
S.E.2d 534 (1996), Stokes maintains that the affidavit upon which
the instant search warrant was based did not provide a nexus
between the alleged criminal activity and the place to be
searched. Therefore, Stokes concludes, the magistrate could not
reasonably have concluded that drug-related contraband would
probably be found in the hotel room. Furthermore, Stokes argues,
the evidence seized by the police was not admissible under the
good faith exception to the exclusionary rule enunciated in United
States v. Leon, 468 U.S. 897 (1984), because the warrant was based
on an affidavit so lacking in indicia of probable cause as to
render official belief in its existence unreasonable.
The existence of probable cause is
determined by examining the
"totality-of-the-circumstances." "The task
of the issuing magistrate is simply to make
a practical, commonsense decision whether,
given all the circumstances set forth in the
affidavit before him, including the
'veracity' and 'basis of knowledge' of
persons supplying hearsay information, there
is a fair probability that contraband or
evidence of a crime will be found in a
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particular place." The duty of the
reviewing court is "simply to ensure that
the magistrate had a 'substantial basis for
. . . conclud[ing]' that probable cause
existed."
Miles v. Commonwealth, 13 Va. App. 64, 68-69, 408 S.E.2d 602,
604-05 (1991) (quoting Illinois v. Gates, 462 U.S. 213, 238-39
(1983); Jones v. United States, 362 U.S. 257, 271 (1960)), aff'd
en banc, 14 Va. App. 82, 414 S.E.2d 619 (1992). "We are further
mindful that a magistrate may draw reasonable inferences from
the material supplied to him and that his determination of
probable cause '"should be paid great deference by reviewing
courts."'" Williams v. Commonwealth, 4 Va. App. 53, 68, 354
S.E.2d 79, 87 (1987) (quoting United States v. Settegast, 755
F.2d 1117, 1121 (5th Cir. 1985) (quoting Gates, 462 U.S. at
236)).
In Janis, we determined that, because the affidavit failed
to provide a nexus between the marijuana being grown in a field
in Dinwiddie County and the defendant's residence in Hopewell to
be searched, "the magistrate who issued the warrant could not
reasonably have concluded that contraband would probably be
found at the premises to be searched." 22 Va. App. at 652, 472
S.E.2d at 653. Accordingly, we held that "the magistrate lacked
a substantial basis for finding that probable cause existed."
Id. at 652, 472 S.E.2d at 652.
In this case, the underlying affidavit filed by Detective
Clements stated that Officers Wideman and Pryor stopped the car
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Stokes was driving and arrested him because the officers knew
there was an outstanding warrant for his arrest. The two
experienced police officers, who had made numerous drug arrests,
were joined by a third officer and his drug-detection dog.
Sniffing the car, the dog reacted positively to the odor of
drugs both outside and inside the car. Stokes was the car's
sole occupant. Stokes had in his possession a hotel key for a
room registered solely in his name. Significantly, the room had
been registered for only a "half day." Checkout time was at
noon later that day.
Detective Clements, himself an experienced police officer
with expertise in drug investigation and enforcement, knew that
drug dealers kept records of their illegal drug possession and
transactions and used hotel rooms to store their illegal drugs
and conduct their transactions. He also knew that Stokes had
been "seen on several occasions in the company of other known
drug dealers who are involved in a federal drug investigation."
Examining the totality of these circumstances, the
magistrate could reasonably infer that Stokes was in possession
or engaged in the sale of illicit drugs and that evidence of
such criminal activity would probably be found in Room 110 of
the Hampton Quality Inn, located at 1809 W. Mercury Boulevard in
Hampton. See Gwinn v. Commonwealth, 16 Va. App. 972, 975, 434
S.E.2d 901, 904 (1993) (holding that "[a] magistrate is entitled
to draw reasonable inferences about where incriminating evidence
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is likely to be found, based on the nature of the evidence and
the type of offense"). We conclude, therefore, that the instant
affidavit, unlike the affidavit in Janis, provided an adequate
nexus between the alleged criminal activity and the premises to
be searched.
Accordingly, we hold that the affidavit provided the
magistrate with a substantial basis for concluding that probable
cause existed. 1 The trial court did not err, therefore, in
denying Stokes' motion to suppress the cocaine seized as a
result of the search of his hotel room.
III. SUFFICIENCY OF THE EVIDENCE
Stokes also contends the trial court erred in convicting
him of possession of cocaine where the only evidence of
possession was his entitlement to occupy the hotel room in which
the cocaine was found. Such evidence, Stokes argues, is
insufficient to sustain his conviction.
When the sufficiency of the evidence is challenged on
appeal we review the evidence "in the light most favorable to
the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom." Bright v. Commonwealth, 4 Va. App.
1
Having concluded that the cocaine seized by the police
pursuant to a search warrant was admissible because the
affidavit underlying the warrant provided the magistrate with a
substantial basis for concluding that probable cause existed, we
need not consider Stokes' additional argument that the good
faith exception to the exclusionary rule set forth in Leon, 468
U.S. 897, does not apply.
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248, 250, 356 S.E.2d 443, 444 (1987). We will not disturb the
conviction unless it is plainly wrong or unsupported by the
evidence. Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337
S.E.2d 897, 898 (1985).
"In order to convict a person of illegal possession of an
illicit drug, the Commonwealth must prove beyond a reasonable
doubt that the accused was aware of the presence and character of
the drug and that the accused consciously possessed it." Walton
v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871 (1998).
However, "proof of actual possession is not required; proof of
constructive possession will suffice." Id. at 426, 497 S.E.2d at
872.
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
[accused] was aware of both the presence and
character of the substance 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)).
Because "[p]roof of constructive possession necessarily
rests on circumstantial evidence[,] . . . '"all necessary
circumstances proved must be consistent with guilt and
inconsistent with innocence and exclude every reasonable
hypothesis of innocence."'" Burchette v. Commonwealth, 15
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Va. App. 432, 434, 425 S.E.2d 81, 83 (1992) (quoting Garland v.
Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983)
(quoting Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d
865, 867 (1982))). "However, 'the Commonwealth need only exclude
reasonable hypotheses of innocence that flow from the evidence,
not those that spring from the imagination of the defendant.'
Whether an alternative hypothesis of innocence is reasonable is a
question of fact and, therefore, is binding on appeal unless
plainly wrong." Archer v. Commonwealth, 26 Va. App. 1, 12-13, 492
S.E.2d 826, 832 (1997) (citation omitted) (quoting Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993)).
"While no single piece of evidence may be sufficient, the
'combined force of many concurrent and related circumstances,
each insufficient in itself, may lead a reasonable mind
irresistibly to a conclusion.'" Stamper v. Commonwealth, 220
Va. 260, 273, 257 S.E.2d 808, 818 (1979) (quoting Karnes v.
Commonwealth, 125 Va. 758, 764, 99 S.E. 562, 564 (1919)).
Occupancy of the premises where the illegal drug is found
is a factor that may be considered in determining whether an
accused possessed the drugs. See Walton v. Commonwealth, 255
Va. 422, 426, 497 S.E.2d 869, 872 (1998). "In resolving this
issue, the court must consider 'the totality of the
circumstances disclosed by the evidence.'" Glasco v.
Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150, 155 (1998)
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(quoting Womack v. Commonwealth, 220 Va. 5, 8, 255 S.E.2d 351,
353 (1979)).
At trial, Stokes and the Commonwealth stipulated to the
evidence, as follows: On May 14, 1999, at approximately 10:30
a.m., Officer Wideman conducted a traffic stop on a car being
driven by Stokes. Stokes was the sole occupant of the vehicle.
The officer discovered Stokes had outstanding warrants on file.
Officer Miller and a drug-detection dog arrived at the scene,
and the dog "alert[ed] on the vehicle."
After placing Stokes under arrest, Officer Wideman found a
hotel key in his possession. A check of local hotels revealed
that "Room 110 at the Quality Inn on West Mercury Boulevard,
. . . in the City of Hampton" was registered solely to Stokes.
The police commenced surveillance of Room 110. They did not
observe anybody leave or enter the room.
Based on information received from Officer Wideman and
other officers, Detective Clements sought and obtained a search
warrant for Room 110. In searching Room 110 pursuant to the
warrant, the officers recovered suspected cocaine from the
drawer of a nightstand and found Stokes' Virginia identification
card inside a closed drawer of a different table. The officers
saw no "indication of other people using [the] room." Lab
analysis confirmed that the retrieved substance was cocaine.
We conclude that, in considering the totality of the
circumstances disclosed by this evidence, the trial judge could
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reasonably infer that Stokes was aware of both the presence and
character of the cocaine found in Room 110, of which he was the
sole registered occupant, and that the cocaine was subject to his
dominion and control. Hence, the evidence stipulated to in this
case supports the trial court's finding that Stokes constructively
possessed the cocaine. The trial court's judgment is not plainly
wrong. We hold, therefore, that the evidence is sufficient to
support Stokes' conviction for possession of cocaine.
Accordingly, we affirm the conviction.
Affirmed.
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