Melvin A. Richardson v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
MELVIN A. RICHARDSON
v. Record No. 0687-95-4 MEMORANDUM OPINION * BY
JUDGE CHARLES H. DUFF
COMMONWEALTH OF VIRGINIA APRIL 23, 1996
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge
Janell M. Wolfe for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General,
on brief), for appellee.
The appellant, Melvin A. Richardson, was convicted of
possession of cocaine following a jury trial. On appeal he
raises two issues: (1) whether the trial court erred in refusing
to suppress the evidence found during an allegedly unlawful
search; and (2) whether there was sufficient evidence that he
possessed the cocaine. For the reasons that follow, we affirm.
BACKGROUND
After receiving "complaints about drug activity" at a
single-family residence located at 1315 South 13th Street,
Detective Lowell Tolliver supervised at least five "controlled
[drug] buys from that location." The controlled buys occurred
between May and August of 1994. Tolliver conducted surveillance
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
of the house, during which he "noticed a lot of short term
traffic." Specifically, Tolliver "observed a lot of foot
traffic, people going into the house and coming right back out, a
lot of cars stopping in front of the house." There was also
"dealing that would occur right out in front of it [the house]."
During his surveillance, Tolliver often saw "a group of people
standing out in front of the house."
Based on this information, Tolliver obtained a search
warrant for the house. On August 4, 1994, Tolliver and
approximately twelve other police officers approached the house
in three or four cars to execute the warrant. Appellant was
outside the house with a group of five or six men. Tolliver got
out of his car and ran toward the house. As he "was running up
to the residence Mr. Richardson [appellant], who was out front,
ran in to the house. I called to him, I said stop, police[,] but
he continued in, I was right behind him." Tolliver apprehended
appellant in the living room. Tolliver wore a jacket with a
police badge on one side and the words "Police" on the other side
and on the back.
The police secured the residence and handcuffed everyone
found inside. Tolliver "started doing a search of the
residence."
Within minutes of entering the residence, Sergeant Trumble
searched appellant. After patting him down, Trumble reached in
appellant's right front pants pocket and pulled out a white,
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"super glue container." The contents were not visible. Trumble
handed the container to Tolliver, who "opened it and looked
inside and noticed that there was like a white residue in there."
The residue was analyzed as cocaine.
Tolliver provided the following testimony to explain why he
opened the container:
In my experience I have made some undercover
purchases and on several occasions the
purchases that I have made for crack, the
people that were selling to me before would
dump or pour crack in my hand from containers
like that.
Tolliver recalled seeing super glue containers used on two
prior occasions. In addition, he stated, "I have gotten
information from informants on other search warrants where those
type of containers were located." Tolliver had been a police
officer for eleven years and on the vice unit for over five
years. He had attended drug enforcement training sessions, and
had been responsible for "at least a hundred search warrants."
Although appellant's name was not listed on the search
warrant, at the February 1, 1995 suppression hearing, Tolliver
was asked, "Do you know who any of the occupants of the house
were?" Tolliver responded, "The one occupant that I knew of was
a person known to me as wink-eye. His name is Melvin
Richardson."
MOTION TO SUPPRESS CONTENTS OF THE CONTAINER
Because appellant concedes the propriety of the search
disclosing the closed container, the narrow issue before us is
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whether the police officer lawfully opened the container.
In reviewing a trial court's denial of a motion to suppress,
"the burden is upon [the appellant] to show that this 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, cert.
denied, 449 U.S. 1017 (1980).
"[T]he Fourth Amendment . . . proscribes--except in certain
well-defined circumstances--the search of [] property [seized
pursuant to Terry v. Ohio, 392 U.S. 1 (1968)] unless accomplished
pursuant to judicial warrant issued upon probable cause." Smith
v. Ohio, 494 U.S. 541, 542 (1990).
A lawful search of fixed premises generally
extends to the entire area in which the
object of the search may be found and is not
limited by the possibility that separate acts
of entry or opening may be required to
complete the search. Thus, a warrant that
authorizes an officer to search a home for
illegal weapons also provides authority to
open closets, chests, drawers, and containers
in which the [contraband] might be found.
United States v. Ross, 456 U.S. 798, 820-21 (1982).
"As an articulated legal standard, probable
cause deals with probabilities concerning the
factual and practical considerations in
everyday life as perceived by reasonable and
prudent persons. It is not predicated upon a
clinical analysis applied by legal
technicians. In determining whether probable
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cause exists courts will test what the
totality of the circumstances meant to police
officers trained in analyzing the observed
conduct for purposes of crime control."
Lawson v. Commonwealth, 217 Va. 354, 359, 228 S.E.2d 685, 687
(1976) (quoting Hollis v. Commonwealth, 216 Va. 874, 876-77, 223
S.E.2d 883, 889 (1976)).
"Courts have held that certain containers are
so distinctive in nature that an officer may,
based on his [or her] experience with such
containers in previous arrests, have probable
cause to search or seize such a distinctive
container in plain view. Examples of such
containers are paper bindles, heroin
balloons, and brick-shaped packages smelling
like marijuana. However, where the container
is a common one with legitimate purposes, its
presence is not enough to establish probable
cause.
* * * * * * *
"'. . . whether a common container
constitutes a suspicious circumstance,
capable of contributing to the totality of
circumstances necessary for probable cause,
depends on the total factual context in
which the container is observed, including
the prior experience of the observing
officer with the containers of the sort at
issue. . . .'"
People v. Limon, 21 Cal. Rptr. 2d 397, 404 (Cal. Ct. App. 1993)
(upholding warrantless search of "hide-a-key" container of type
officer had once before seen store illegal drugs where officer
also observed suspicious behavior) (quoting People v. Nonette,
271 Cal. Rptr. 329, cert. denied, 498 U.S. 1087 (1990)) (other
citations omitted). See also People v. Hughes, 767 P.2d 1201
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(Colo. 1989) (after defendant became linked to searched premises,
search of canister on defendant was within scope of warrant); In
re J.D.R., 637 A.2d 849 (D.C. 1994) (officer saw corner of
"ziplock bag" sticking out of defendant passenger's arm cast;
that fact and officer's knowledge through police experience that
such bags commonly used as drug containers were sufficient to
support trial court's denial of motion to suppress); State v.
Maguire, 523 A.2d 120 (N.H. 1987) (holding that officer had
probable cause to seize "amber-colored vial" he saw defendant
furtively try to hide in his pocket; officer saw defendant and
three others in public restroom).
Viewing the totality of the circumstances in the light most
favorable to the Commonwealth, we find that there was sufficient
evidence from which the trial court could find that Tolliver had
probable cause to open the container. The evidence established
the following:
1. The police had received complaints about drug
activity at the location;
2. The police made at least five controlled drug buys
from the location, the last one within a week of the
search;
3. The police conducted extensive surveillance of the
house and observed a lot of short term traffic;
4. Tolliver testified that some drug dealing occurred
outside, "right out on front" of the house;
5. During surveillance, Tolliver often saw groups of
people standing in front of the house;
6. A detached, neutral magistrate found probable cause
to issue a search warrant for the house;
7. Appellant ran into the house when he saw the
officers approach;
8. Tolliver was highly experienced in drug
investigations;
9. During undercover buys made by Tolliver, "on
several occasions" the sellers used "containers like
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that [the glue container]" to store drugs;
10. Tolliver has seen super glue tubes used on two
prior occasions; and
11. Tolliver has received information from informants
on other search warrants where "those types of
containers were located."
This case is distinguishable from situations where searches
are conducted without a warrant or where there are no
circumstances to link the searched item or person to the
contraband being sought. See, e.g., Harris v. Commonwealth, 241
Va. 146, 400 S.E.2d 191 (1991) (reversing conviction where police
stopped car in which defendant was passenger based on information
from informant that driver was fugitive being sought; subsequent
search of canister held illegal because officer was not looking
for weapon; mere possession of canister that officer's experience
led him to believe contained drugs, absent evidence that the
informant supplying the tip was reliable or credible, was not
enough); Helms v. Commonwealth, 10 Va. App. 368, 392 S.E.2d 496
(1990) (reversing conviction where defendant was located outside
residence for which warrant was being executed and did not act
suspicious; moreover, there was no evidence that searching police
officer had seen such containers used to conceal drugs).
Here, appellant ran into the house just ahead of the police,
who wore identifiable clothing, thereby linking himself to the
house for which a warrant had been issued upon probable cause.
Appellant's testimony that he visits the house "all the time,"
and the fact that he was present outside where Tolliver had seen
prior transactions occur linked appellant more closely with the
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house. Moreover, Tolliver testified that he knew one occupant of
the house, and "[h]is name is Melvin Richardson."
Based on the facts of this case, the officer possessed
probable cause to believe that the container contained contraband
that was the subject of the search warrant. Accordingly,
appellant has failed to show that the trial court's denial of the
motion to suppress constituted reversible error.
POSSESSION
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
It is uncontested that the container was in appellant's
pocket. Moreover, appellant testified that he looked inside the
container before placing it in his pocket. Tolliver testified
that, when he opened the container, he saw "white residue inside"
that field tested positive for cocaine.
A conviction for possession of illegal drugs requires proof
that the "defendant was aware of the presence and character of
the drugs, and that he intentionally and consciously possessed
them." Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d
491, 497 (1990) (en banc). "Possession of a controlled drug
gives rise to an inference of the defendant's knowledge of its
character." Josephs, 10 Va. App. at 101, 390 S.E.2d at 498-99.
"[E]vidence of flight may be considered as evidence of guilt
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along with other pertinent facts and circumstances." Hope v.
Commonwealth, 10 Va. App. 381, 386, 392 S.E.2d 830, 833 (1990)
(en banc).
The following facts support the jury's determination that
appellant knowingly possessed the cocaine:
1. Appellant physically possessed the container;
2. Appellant testified that he looked into the
container before placing it in his pocket;
3. Appellant fled from the yard into the house when he
saw the police;
4. The police were executing a search warrant on the
house based on probable cause that drugs were sold from
the house on numerous occasions;
5. When Tolliver opened the container, it contained no
glue, however, Tolliver saw a white, powdery substance
in it; and
6. Appellant testified that he was a frequent visitor
at the house, indicating his awareness of the ongoing
drug activity forming the basis for the warrant.
The Commonwealth's evidence was sufficient to prove beyond a
reasonable doubt that appellant possessed cocaine. The fact
finder need not accept appellant's claim that he did not know the
glue tube contained cocaine. See Crumble v. Commonwealth, 2 Va.
App. 231, 236, 343 S.E.2d 359, 362 (1986). Thus, the fact finder
was entitled to accept only those parts of appellant's evidence
that it found plausible and credible when considering all the
facts presented to it.
For the foregoing reasons, we affirm appellant's conviction.
Affirmed.
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