Sampson Price Terry v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
SAMPSON PRICE TERRY
v. Record No. 1896-94-3 MEMORANDUM OPINION * BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA FEBRUARY 13, 1996
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Samuel M. Hairston, Judge
Rickey G. Young (Law Office of Rickey G.
Young, on brief), for appellant.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Sampson Price Terry appeals his conviction for possession
with intent to distribute cocaine, second or subsequent offense.
He argues that the trial judge erred in refusing to suppress the
cocaine as evidence and that the evidence was insufficient to
support his conviction. We affirm his conviction.
On January 24, 1994, an investigator from the Henry County
Sheriff's Department informed the Pittsylvania County Sheriff's
Department that a capias had been issued for the arrest of
Sampson Terry, described as a black male about 5'11" tall, with a
medium build, medium complexion, a short hair cut, and a bad eye.
The investigator stated that Terry would be participating in a
drug transaction near a particular house, and that a grayish-blue
Honda with 30-day tags would be involved. Investigator Ingram of
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the Pittsylvania County Sheriff's Department corroborated much of
this information and received additional details through an
informant. During the trial the informant was revealed to be
Eric Williams, who lived in the house where the drug deal was to
take place.
Based on the information they had received, Investigators
Ingram and Baggerly set up surveillance of Eric Williams' house.
A grayish-blue Honda arrived at the house, and the driver,
Alexander Coleman, got out and went inside the house. Williams
then came out of the house and got into the vehicle, returning
with Terry in the front seat. On his way to pick up Terry,
Williams motioned for Ingram to follow him, and stopped at a
nearby intersection to speak with Ingram. After the vehicle
returned to the house, Williams got out and went into the house,
and Coleman came out and joined Terry in the car. Terry was in
the front passenger seat.
The car, with Coleman driving, headed onto the highway.
Ingram pulled out onto the same road, activated his emergency
equipment, and stopped the vehicle. Baggerly, stationed at a
different location nearby, assisted Ingram. Ingram approached
the car and ordered the men to put their hands up. Coleman
complied immediately, but Terry looked at Ingram through the
window and did not comply. Ingram could see Terry's shoulders
moving as if he were doing something with his hands. After the
second or third order that he put his hands up, Terry did so.
While looking at Terry through the window, Ingram noticed that he
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had a "lazy eye." Ingram removed Terry from the vehicle, and
handcuffed and arrested him.
After Terry was handcuffed and arrested, Ingram searched him
and found a pocket knife and over $500.00 in cash. Ingram then
searched the car, which did not belong to Terry, and found two
pill bottles lying beside the passenger seat between the seat and
the door. Each of the bottles contained small white rocks, which
laboratory analysis proved to be cocaine. The knife and the
money also carried traces of cocaine.
Ingram had used Williams as an informant on a number of
occasions in the past, had obtained two or three search warrants
based on his information, and on other occasions had used his
information and found it to be accurate. On one occasion some
years ago, Williams had given Ingram information that was not
accurate, and he was charged with giving false information.
Also, Ingram testified that Williams' attitude toward him had
deteriorated several months prior to trial. Ingram believed this
change occurred because he had executed a search warrant at
Williams' house, and drug charges were brought against Williams
based on the fruits of that search. These charges were brought
after Terry's arrest.
On appeal, we view the evidence in the light most favorable
to the Commonwealth, granting it all reasonable inferences fairly
deducible therefrom. The verdict of the jury will not be
disturbed unless it is plainly wrong or without evidence to
support it. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218
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S.E.2d 534, 537 (1975).
I
We first consider the suppression issue. Terry argues that
the investigators lacked probable cause to stop the car in which
Coleman and Terry were riding. A police officer may stop a motor
vehicle, even without probable cause, for investigatory purposes
if the officer has a reasonable articulable suspicion that the
vehicle or its occupants are subject to seizure for violation of
law. Delaware v. Prouse, 440 U.S. 648, 663 (1979); Bulatko v.
Commonwealth, 16 Va. App. 135, 136-137, 428 S.E.2d 306, 307
(1993); Stroud v. Commonwealth, 6 Va. App. 633, 636, 370 S.E.2d
721, 723 (1988). Here, the police were looking for Terry in
order to execute the capias from Henry County. They had reliable
information that Terry would be traveling in a grayish-blue Honda
with temporary tags, to a house where the informant, Williams,
lived, and would be participating in a drug transaction. This
information was sufficient to establish probable cause for the
stop and search of the Honda at Williams' house.
In determining whether information from an informant is
sufficient to establish probable cause, the court must evaluate
the informant's reliability, veracity, and basis of knowledge.
See Boyd v. Commonwealth, 12 Va. App. 179, 186-187, 402 S.E.2d
914, 918, 919 (1991). Williams had proven to be a reliable
informant in the past. Williams knew the participants in the
drug transaction. Coleman and Terry arrived and left just as
Williams had predicted. Williams' information, along with the
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information from the police in Henry County, provided a
sufficient basis for the stop on two grounds. 1 First, the
information was sufficient to provide probable cause that Terry,
for whom they had a capias, was in the vehicle. Secondly, the
information was sufficient to provide probable cause that a drug
deal was in progress.
We hold probable cause existed to stop the vehicle because
the investigators had reliable information that the occupants of
the car were engaging in a drug transaction and Terry for whom
they had a capias was in the vehicle. This same information gave
the officers probable cause to search the vehicle. Also,
probable cause to search the vehicle was strengthened by
additional circumstances. When the car was stopped, the police
confirmed that Terry was in the car. Terry then refused to put
his hands up and moved his arms in a manner that suggested he was
hiding something. When he was searched, he was carrying a knife
and a large sum of cash. These circumstances gave the officers
even greater cause to believe that the car contained drugs or
other evidence of a crime. Given such probable cause, the right
1
At the trial, Williams testified for the defense, denying
that he had provided any information about Terry's involvement in
a drug deal, and accusing Ingram and Baggerly of improper
conduct. Williams' change in attitude toward Ingram took place
after Terry was arrested, and had no bearing on the existence of
reasonable suspicion for the stop. As for the effect of
Williams' testimony on the sufficiency of evidence for the charge
of possession, the jury as trier of fact was entitled to accept
Ingram's and Baggerly's testimony and reject that of Williams.
Lea v. Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d 477, 479
(1993).
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to conduct a warrantless search extended to the entire car,
including any closed containers within the car. United States v.
Ross, 456 U.S. 798, 820-822 (1982); Westcott v. Commonwealth, 216
Va. 123, 126, 216 S.E.2d 60, 63, (1975). 2
An automobile may be searched without a warrant where there
exist both probable cause to believe the car contains evidence of
a crime and exigent circumstances. McCary v. Commonwealth, 228
Va. 219, 227-228, 321 S.E.2d 637, 641 (1984). An automobile's
mobility and the likelihood that evidence will be lost or
destroyed if the automobile is permitted to leave the scene
constitute exigent circumstances. Id. The warrantless search of
the car was valid, and therefore the trial judge did not err in
denying the motion to suppress.
II
The defendant's conviction was based on constructive
possession. "To support a conviction based on constructive
possession, `the Commonwealth must point to evidence of acts,
statements, or conduct of the accused or other facts or
2
The Commonwealth argues that Terry cannot contest the
illegality of the search because he was merely a passenger in the
car and therefore had no legitimate expectation of privacy. In
Arnold v. Commonwealth, 17 Va. App. 313, 437 S.E.2d 235 (1993),
we held that a passenger lawfully present in the vehicle had a
reasonable expectation of privacy in a shopping bag located at
his feet. The Court distinguished that case from Josephs v.
Commonwealth, 10 Va. App. 87, 390 S.E.2d 491 (1990)(en banc),
where the Court held that the defendant had no reasonable
expectation of privacy because she was riding in a stolen car.
Here, although the car did not belong to Coleman or Terry, there
is no evidence that it was stolen, and the record suggests that
it was borrowed. We therefore permit Terry to raise his Fourth
Amendment claim with respect to the search.
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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.'" McGee v. Commonwealth, 4
Va. App. 317, 322, 357 S.E.2d 738, 740 (1987) (quoting Drew v.
Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986)).
Where the Commonwealth's case for constructive possession is
based on circumstantial evidence, such evidence must be
sufficiently convincing to exclude every reasonable hypothesis
except that of guilt. Shurbaji v. Commonwealth, 18 Va. App. 415,
423, 444 S.E.2d 549, 553 (1994); Hairston v. Commonwealth, 5 Va.
App. 183, 186, 360 S.E.2d 893, 895 (1987) (citations omitted).
Viewed in the light most favorable to the Commonwealth, the
evidence showed that the sheriff's investigators had been
informed that there would be a drug transaction between Terry and
Coleman. Terry and Coleman came to the location as predicted,
and cocaine was found on the passenger side of the vehicle, where
Terry was riding. Terry appeared to attempt to hide the cocaine.
He had in his possession a large quantity of cash and a knife,
both of which carried traces of cocaine. These circumstances
together warrant the reasonable inference that the cocaine found
in the car belonged to the defendant and had been possessed by
him. Josephs v. Commonwealth, 10 Va. App. 87, 100-102, 390
S.E.2d 491, 498-499 (1990)(en banc). At a minimum, the evidence
showed joint possession of the drugs by Terry and Coleman. Id.
at 99, 101, 390 S.E.2d at 497, 499.
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For these reasons, we affirm the conviction.
Affirmed.
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