David L. Veney (s/k/a Daniel) v. Commonwealth of VA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Agee
Argued at Richmond, Virginia
DAVID LEE VENEY, S/K/A
DANIEL VENEY
MEMORANDUM OPINION * BY
v. Record No. 2090-00-2 JUDGE JEAN HARRISON CLEMENTS
APRIL 9, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS
Herbert C. Gill, Jr., Judge
Denis C. Englisby (Margaret Ann Englisby;
Englisby, Englisby & Vaughn, on brief), for
appellant.
Marla Graff Decker, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
David Lee Veney was convicted in a bench trial of possession
of cocaine, in violation of Code § 18.2-250, and possession of
marijuana, in violation of Code § 18.2-250.1. On appeal, he
contends the trial court erred in denying his motion to suppress
the drugs and drug paraphernalia seized as a result of a search
that violated his Fourth Amendment rights because it exceeded
the scope of his consent. Finding the search and seizure of the
drugs and drug paraphernalia permissible under the plain view
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
exception to the Fourth Amendment, we affirm the judgment of the
trial court.
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.
"On appeal from a trial court's denial of a motion to
suppress, we must review the evidence in the light most favorable
to the Commonwealth, granting to the Commonwealth all reasonable
inferences fairly deducible from it." Debroux v. Commonwealth, 32
Va. App. 364, 370, 528 S.E.2d 151, 154, aff'd en banc, 34 Va. App.
72, 537 S.E.2d 630 (2000). "In so doing, we must discard the
evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence
favorable to the Commonwealth and all fair inferences that may
be drawn therefrom." Watkins v. Commonwealth, 26 Va. App. 335,
349, 494 S.E.2d 859, 866 (1998). We are further mindful that the
"credibility of a witness, the weight accorded the testimony, and
the inferences to be drawn from proven facts are matters solely
for the fact finder's determination." Crawley v. Commonwealth, 29
Va. App. 372, 375, 512 S.E.2d 169, 170 (1999).
Furthermore, "we are bound by the trial court's findings of
historical fact unless 'plainly wrong' or without evidence to
support them and we give due weight to the inferences drawn from
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those facts by resident judges and local law enforcement
officers." McGee v. Commonwealth, 25 Va. App. 193, 198, 487
S.E.2d 259, 261 (1997) (en banc). "However, we consider de novo
whether those facts implicate the Fourth Amendment and, if so,
whether the officers unlawfully infringed upon an area protected
by the Fourth Amendment." McNair v. Commonwealth, 31 Va. App.
76, 82, 521 S.E.2d 303, 306 (1999) (en banc).
Here, the evidence, viewed in the light most favorable to
the Commonwealth, established that, after receiving information
that there had been illegal drug use and sales at that location,
Officer Kevin Winfree and three other police officers went to
Veney's apartment. When Veney opened the door, Winfree asked if
the officers could come in and speak with him. Veney testified
that he invited the officers in, telling them "to come in and
stand in the living room." The officers followed Veney into the
apartment and stood in the middle of the living room.
Winfree explained to Veney that they were there in
reference to the information they had received about the drug
use and sales at that location and that they did not have a
search warrant. When asked if he would consent to a search of
the apartment, Veney stated that he could not consent because
his name was not on the apartment's lease. Winfree explained to
Veney that, if he had a room there, he could consent to a search
of his room. Veney testified that he "told [the police] they
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could search [his] room." Veney led the officers to his bedroom
at the end of a hall.
In following Veney past the kitchen to the hallway, Winfree
"glanced to the right" and observed a "smoking device in plain
view" in a bowl on top of a microwave oven. As he followed
Veney down the hallway, Winfree looked through an open bedroom
door on the left and observed a crumpled soda can on a table.
While standing in the hallway, Winfree also observed a spoon
with white residue on it and some bloodstained tissues or toilet
paper on the table.
Winfree, who qualified at trial as an expert in the field
of identifying drug paraphernalia, testified that the smoking
device he observed in the kitchen was "consistently used for
smoking illegal drugs" and that the crumpled soda can and other
items he observed in the bedroom off the hallway leading to
Veney's bedroom were consistent with illegal drug use. When he
entered Veney's room at the end of the hall, Winfree saw several
used hypodermic needles in a trashcan.
At that point, Winfree told Veney that, based on the drug
paraphernalia observed in the apartment, he was going to be
detained while the police attempted to obtain a search warrant.
Veney was handcuffed and advised of his Miranda rights. After
acknowledging that he understood his rights, Veney told the
police that the smoking device on top of the microwave oven was
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his and that he occasionally smoked cocaine. Veney testified
that he used the smoking device to smoke marijuana.
After obtaining a search warrant, the officers searched the
apartment and found additional contraband in the bedroom off the
hallway, in a bathroom adjoining that bedroom, and in a living
room closet. Laboratory analysis indicted that the residue in
the smoking device found on top of the microwave oven was
cocaine and marijuana.
Veney's sole contention properly before us on appeal is
that the police exceeded the scope of his consent to search his
bedroom. 1 He claims that, because he consented only to a search
of his bedroom, the police were not entitled to search anywhere
else in the apartment. Thus, he argues, all evidence found
outside of his bedroom should have been suppressed as the
product of an illegal search.
The Commonwealth contends that Veney's argument is without
merit because it fails to take into account the plain view
doctrine. The Commonwealth argues that, because the contraband
was lawfully discovered by the police in plain view as they
1
Veney also argues, on appeal, that the evidence was
insufficient to connect him to the contraband found in the left
bedroom off the hallway and in a living room closet. However,
because this argument was not raised at trial, Veney is barred
by Rule 5A:18 from raising it for the first time on appeal. See
Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488
(1998). Moreover, the record does not reflect any reason to
invoke the "good cause" or "ends of justice" exceptions to Rule
5A:18.
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headed to Veney's bedroom, the trial court correctly denied
Veney's motion to suppress. We agree.
"In order to invoke [the plain view] exception [to the
Fourth Amendment], an officer must meet two requirements:
first, he must be lawfully in position to 'perceive' a
suspicious object, and second, he must have probable cause to
believe it to be contraband [or evidence of a crime]." Arnold
v. Commonwealth, 17 Va. App. 313, 318, 437 S.E.2d 235, 238
(1993).
Veney does not challenge, on appeal, the entry of the
police into the apartment. Indeed, he concedes that he invited
the officers into the apartment, that he specifically consented
to a search of his room, and that he led the officers past the
kitchen and down a hallway to his bedroom. It was while
following Veney on the way to his bedroom that Winfree observed,
by glancing into the kitchen, the smoking device in plain view
on top of the microwave oven and, by looking through an open
door as he followed Veney down the hallway, the crumpled soda
can and other contraband in plain view on the table in the
bedroom off the hallway.
Officer Winfree, who qualified as an expert in identifying
drug paraphernalia, testified that he immediately recognized the
object on the microwave oven as a device used for smoking
illegal drugs. He also testified that the crumpled soda can in
the bedroom was used as a device to smoke illegal drugs and that
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some of the other items on the table in the bedroom were
consistent with illegal drug use.
We conclude that the trial court could properly find from
the evidence that Winfree was lawfully present in a location
which enabled him to perceive the suspicious objects and that
Winfree had probable cause to believe they were contraband or
evidence of a crime. Thus, we hold the trial court correctly
applied the plain view doctrine and did not err in denying
Veney's motion to suppress.
Accordingly, we affirm Veney's convictions.
Affirmed.
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