Charity Elizabeth Beverly v. Commonwealth of Virginia

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Huff, Athey and Friedman UNPUBLISHED

Argued by videoconference

CHARITY ELIZABETH BEVERLY MEMORANDUM OPINION * v. Record No. 0725-21-3 JUDGE FRANK K. FRIEDMAN APRIL 12, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY Christopher B. Russell, Judge

Tyler M. Jerrell, Assistant Public Defender, for appellant.

Leanna C. Minix, Assistant Attorney General (Mark R. Herring, 1 Attorney General, on brief), for appellee.

Charity Elizabeth Beverly (“Ms. Beverly”) appeals the circuit court’s denial of her motion to

suppress evidence. She also appeals the sufficiency of the evidence supporting her conviction under

Code § 18.2-250. We conclude that the warrant authorizing the search of Ms. Beverly’s home was

defective and the “protective sweep” initiated by the officers prior to obtaining the warrant was

improper. However, upon reviewing the record and briefs of the parties, we determine that we are

required to affirm the circuit court’s denial of Ms. Beverly’s motion to suppress. We also find that

the evidence was sufficient to support her conviction.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Jason S. Miyares succeeded Mark R. Herring as Attorney General on January 15, 2022. BACKGROUND

We review the facts in the light most favorable to the prevailing party below. Long v.

Commonwealth, 72 Va. App. 700, 705 (2021); Bryant v. Commonwealth, 72 Va. App. 179, 182

(2020).

Detectives Improperly Enter Ms. Beverly’s House Without a Warrant

Detective Buzzard received information that a wanted person, Paul Price, was located at a

house in Buena Vista. Mr. Price was known by police officers for his methamphetamine use and

distribution. Five officers arrived at the house. Detective Buzzard, Deputy Wade, and Sergeant

Sorrells went to the back door of the home and knocked, at which point another individual, Jose

Colazo, opened the back door. Detective Buzzard spoke with Mr. Colazo in the doorway about

why the officers were there, and testified that “while speaking to [Mr. Colazo,] there was a

strong odor of burnt marijuana coming from his person.” Detective Buzzard asked Mr. Colazo

to come out onto the porch. Mr. Colazo complied without incident. Mr. Colazo was detained.

Detective Buzzard then yelled into the house for Mr. Price to come out. Mr. Price yelled

that he was coming out, and he then exited through the back door to meet the detective. He was

put into “custody after he exited the residence.” Detective Buzzard advised Mr. Colazo that the

officers would be obtaining a search warrant because of the “odor of marijuana.”

Detective Buzzard was the only officer to testify for the Commonwealth regarding the

events surrounding the search. Detective Buzzard repeatedly testified that the odor of marijuana

he smelled came from Mr. Colazo’s person, rather than from inside the home. Detective

Buzzard stated on five separate occasions that the scent of burnt marijuana came from

Mr. Colazo’s person. At no time did the Commonwealth’s only witness from the scene of the

search, Detective Buzzard, state that he smelled marijuana emanating from the residence itself.

-2- At this point, there were at least five officers on the scene. Mr. Price had been

apprehended, and both he and Mr. Colazo were cooperating:

Q: Detective Buzzard, when you took Mr. Price into custody, he didn’t give you any pushback? He just came on out.

A: Yes sir.

Q: And same with Mr. Colazo?

A: Yes sir.

Q: And you smelled marijuana coming from Mr. Colazo’s person?

A: Yes.

Three officers, including Detective Buzzard, then entered the home to perform what Detective

Buzzard called a “protective sweep” of the house, explaining the officers were checking to make

sure there were not more people in the residence before two of the five officers left the scene to

obtain a search warrant. 2

Detective Buzzard, Deputy Wade and Sergeant Sorrells were the officers who entered the

home to perform the “protective sweep.” Detective Buzzard announced himself and asked

anyone there to come out. As they went through the kitchen, Detective Buzzard observed the

appellant, Ms. Beverly, coming down the stairs from her home’s second floor. When she

reached the ground level, Detective Buzzard smelled the strong odor of burnt marijuana on her

person. She was then detained, though not yet arrested, and held outside the residence.

After about thirty minutes of keeping Ms. Beverly outside, the warrant was obtained.

Detective Buzzard stated that he apprised Detective Smith of the basis for the affidavit seeking a

warrant.

2 Detective Buzzard later stated he could not remember exactly when the two officers— Detective Smith and Investigator Flint—left to seek the warrant. He ultimately concluded that, to the best of his recollection, they left before the sweep was completed. -3- Q: Deputy Buzzard, you advised Detective Smith of what, of the smell that supported the affidavit, correct?

A: Yes sir.

Q: And you smelled marijuana coming from Mr. Colazo’s person?

A: Yes sir.

Detective Buzzard also indicated that he believed that Smith had left to get the warrant before the

sweep was completed.

The Affidavit Underlying the Warrant

The affidavit for the search warrant stated:

1. A search is requested in relation to an offense substantially described as follows:

§ 18.2-250.1. Possession of marijuana.

2. The place, person, or thing to be searched is described as follows: The known

residence of Charity Beverly located at . . . Mechanics Circle; Buena Vista, VA.

24415. The residence is a white 2 story with a grey shingle roof. A sign posted on

the carport displays the residential address listed above.

3. The things or persons to be searched for are described as follows: Marijuana,

smoking devices, paperwork showing residency.

4. The material facts constituting probable cause that the search should be made are: On

11/06/2019, this affiant responded to the residence listed in paragraph 2 of this

affidavit in an attempt to serve an outstanding criminal warrant on Paul William

Price. Upon service of the outstanding warrants, Detective Buzzard detected a strong

odor of MARIJUANA coming from within the residence.

5. The object, thing or person searched for constitutes evidence of the commission of

such offense.

-4- 6. I was advised of the facts set forth in this affidavit, in whole or in part, by one or

more other person(s). The credibility of the person(s) providing this information to

me and/or the reliability of this information provided may be determined from the

following facts: Detective Buzzard is a duly sworn officer with the Buena Vista

Police Department and is familiar with the smell of MARIJUANA through his

training and experience. Detective Buzzard is currently assigned to the Virginia State

Police Drug Task Force.

Ms. Beverly contends the affidavit relies on information obtained during the “protective

sweep” including her name and residence, as well as reference to alleged odors emanating from

“within” the house.

After Obtaining the Warrant, Officers Re-Enter the Home and Their Search Reveals Drugs and Drug Paraphernalia

After obtaining the warrant, Detective Buzzard, Detective Smith, and Investigator Flint

searched the home. In the first bedroom they searched, they discovered a marijuana cigarette

and a syringe. In the second bedroom, they found a glass smoking device under the bed, a glass

smoking device in a black eyeglasses case on top of a dresser, and a clear baggie of a crystal-like

substance (later confirmed to be methamphetamine) sitting on top of a space heater, in plain

view. In the same room, they observed court papers, bills, and envelopes with Ms. Beverly’s

name on them. In the basement they found a glass smoking device and a plastic container with a

clear plastic baggie holding three pills. They then put Ms. Beverly and Mr. Colazo under arrest.

The Motion to Suppress and the Circuit Court’s Ruling

Ms. Beverly moved to suppress the evidence obtained, arguing that the initial search

associated with the “protective sweep” was illegal and the incriminating evidence was

discovered because of the illegal search. The parties presented the issue of suppression before

the circuit court; the only witness from the scene to testify was Detective Buzzard. -5- The circuit court ruled that the search warrant was defective and explained that the

affidavit the officers used to obtain the warrant stated the smell of marijuana was coming from

the home (rather than from the person of Mr. Colazo or Ms. Beverly) which was contrary to the

evidence presented. In deciding the warrant was defective the circuit court also questioned how

the officers knew Ms. Beverly’s name before putting it on the affidavit, and how or when the

officers learned she owned the residence.

The circuit court also found that there were no exigent circumstances permitting a

protective sweep. However, the court still found that exclusion of the evidence was not required

because the officers had a right to act in “good faith” in objectively reasonable reliance on the

warrant. The court concluded that “when a judicial officer, in this case a magistrate, issues a

warrant, police are entitled to rely on it” unless the factors set out in United States v. Leon, 468

U.S. 897 (1984), and McCary v. Commonwealth, 228 Va. 219 (1984), are met. The court made

specific findings that these factors were not met in this case.

Of particular relevance, the court made the findings that the magistrate was not

intentionally misled by information the affiant knew or should have known was false, and it

further concluded that the affiant did not exhibit reckless disregard for the truth. The court

further found that the misunderstanding as to whether the odor of marijuana came from

Mr. Colazo’s person or emanated from the residence was explained by the fact that Mr. Colazo

was in the doorway of the home when police encountered him. Thus, the court found the

information in the affidavit derived from the initial contact with Mr. Colazo—not the subsequent

“sweep.” The court concluded: “notwithstanding a defective search warrant” the evidence

found by police in their search should not be excluded.

-6- Ms. Beverly appealed, arguing that the evidence used in convicting her should have been

suppressed. She argues that even if the evidence is admissible, it is insufficient to support her

conviction.

The Commonwealth argues 1) exigent circumstances permitted the warrantless search,

2) the good faith exception applies to make the warrant reliable, or 3) the evidence is admissible

through the independent source doctrine. It also argues that the evidence was sufficient to

support a conviction.

ANALYSIS

I. Standard of Review

“An appellant’s claim that evidence was seized in violation of the Fourth Amendment

presents a mixed question of law and fact on appeal.” Taylor v. Commonwealth, 66 Va. App.

619, 631 (2016) (citing King v. Commonwealth, 49 Va. App. 717, 721 (2007)). “The

determination of whether police may make a warrantless search or seizure involves issues of

both law and fact, which we review de novo on appeal.” Copeland v. Commonwealth, 42

Va. App. 424, 433 (2004) (citing Ornelas v. United States, 517 U.S. 690, 699 (1996); Whitfield

v. Commonwealth, 265 Va. 358, 361 (2003)). An appellate court is “bound by the trial court’s

findings of historical fact unless ‘plainly wrong’ or without evidence to support them and . . .

give[s] due weight to the inferences drawn from those facts by resident judges and local law

enforcement officers.” McGee v. Commonwealth, 25 Va. App. 193, 197 (1997) (en banc)

(citation omitted). We review de novo the application of law to those facts. Carlson v.

Commonwealth, 69 Va. App. 749, 758 (2019) (citing Murphy v. Commonwealth, 264 Va. 568,

573 (2002)); Moreno v. Commonwealth, 73 Va. App. 267, 274 (2021) (explaining this Court

must review “de novo the overarching question of whether a search or seizure violated the Fourth

Amendment”).

-7- Ms. Beverly has the burden to show that the denial of her suppression motion was

reversible error. Carlson, 69 Va. App. at 758 (citing Commonwealth v. Robertson, 275 Va. 559,

564 (2008)). In determining whether to affirm the denial of a suppression motion, the appellate

court considers evidence presented both at the suppression hearing and at trial. Hill v.

Commonwealth, 297 Va. 804, 808 (2019).

The Denial of Ms. Beverly’s Motion to Suppress Must Be Affirmed

A. The Fourth Amendment Requires Police to Obtain a Warrant to Conduct a Home Search—The Warrant Here was Defective

The Fourth Amendment to the United States Constitution requires “[t]he right of the

people to be secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures,” and provides that “no Warrants shall issue, but upon probable cause, supported by

Oath or affirmation, and particularly describing the place to be searched, and the persons or

things to be seized.” U.S. Const. amend. IV. Thus, the Fourth Amendment prohibits

unreasonable searches and seizures. Kyer v. Commonwealth, 45 Va. App. 473, 480 (2005) (en

banc). “Among the many interests served by the Fourth Amendment, the privacy interest in

one’s home has few equals.” White v. Commonwealth, 73 Va. App. 535, 552 (2021) (quoting

Kyer, 45 Va. App. at 480). Typically, “[w]hen government agents conduct a search or seizure

within protected areas of a dwelling without a warrant such actions are presumptively

unreasonable.” Robinson v. Commonwealth, 273 Va. 26, 34 (2007) (citing Payton v. New York,

445 U.S. 573, 586-87 (1980)). As the United States Supreme Court has recognized, “physical

entry of the home is the chief evil against which the wording of the Fourth Amendment is

directed[,]” Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) (quoting United States v. U.S. District

Court, 407 U.S. 297, 313 (1972)), because “[a]t the very core of the Fourth Amendment stands

the right of a man to retreat into his own home and there be free from unreasonable

-8- governmental intrusion[,]” Kyer, 45 Va. App. at 480 (quoting Kyllo v. United States, 533 U.S.

27, 31 (2001)).

If a search is conducted in violation of the Fourth Amendment, evidence found as a result

of the illegal search is subject to the exclusionary rule, which prohibits the introduction of

evidence, tangible or testimonial, acquired during an unlawful search. Carlson, 69 Va. App. at

758 (citing Murray v. United States, 487 U.S. 533, 536 (1988)). The exclusionary rule provides

that “derivative evidence . . . that is the product of the primary evidence, or that is otherwise

acquired as an indirect result of the unlawful search” must be excluded from consideration. Id. at

759. The “prohibition of derivative evidence is the essence of the ‘fruit of the poisonous tree’

doctrine.” Id. (citing Commonwealth v. Ealy, 12 Va. App. 744, 754 (1991)).

The circuit court found that the warrant was defective in this case because it misstated the

source of the marijuana odor. Detective Buzzard stated that the scent came from Mr. Colazo—

but the affidavit underlying the warrant stated that the odor emanated from within the residence

(and the information was attributed to Detective Buzzard.) This inaccuracy clearly benefitted the

prosecution with respect to probable cause. The circuit court also was troubled by the fact that

the affidavit included reference to Ms. Beverly and the fact that it was her residence: these latter

facts were learned as a result of the “protective sweep,” but did not relate to probable cause.3

We uphold the circuit court’s assessment that the warrant was defective. Moreover, the

error was not insignificant as the magistrate was not given the opportunity to determine whether

an odor emanating from Mr. Colazo’s person created probable cause for police to search

Ms. Beverly’s house. Thus, the search which recovered the evidence against Ms. Beverly was

based upon a defective warrant. The Commonwealth, however, argues that there are

3 While the circuit court found the warrant to be defective, it attributed the error to imprecise police work or a reasonable misunderstanding rather than to intentional misconduct or a reckless disregard for the truth, as will be discussed infra. -9- circumstances in which information discovered during a warrantless search is protected from

exclusion. 4 This includes situations where information is discovered when a warrantless search

is performed under “exigent circumstances,” with probable cause. Robinson, 273 Va. at 34

(citing Kirk v. Louisiana, 536 U.S. 635, 638 (2002)).

B. The Circuit Court Correctly Determined There Were No Exigent Circumstances Justifying a Protective Sweep

1. The Exigent Circumstances Exception

“One well-recognized exception applies when ‘the exigencies of the situation’ make the

needs of law enforcement so compelling that a warrantless search is objectively reasonable under

the Fourth Amendment.” Ross v. Commonwealth, 61 Va. App. 752, 759 (2013) (quoting

Washington v. Commonwealth, 60 Va. App. 427, 436 (2012)). “Such exigencies often arise . . .

where the police have probable cause to enter or search a location or thing, but exigent

circumstances excuse the need to obtain a warrant . . . .” Id. at 760. Accordingly, “[t]he exigent

circumstances exception allows a warrantless search when an emergency leaves police insufficient

time to seek a warrant.” Birchfield v. North Dakota, 136 S. Ct. 2160, 2173 (2016). Since

warrantless searches of the home are presumptively unreasonable, the burden rests with the

government to prove exigent circumstances. Commonwealth v. Campbell, 294 Va. 486, 495 (2017).

The Commonwealth contends that the original warrantless entry into Ms. Beverly’s home

was justified under the “exigent circumstances” exception. The Supreme Court of Virginia has

explained “[n]o court could provide an exhaustive enumeration of factors that would distinguish

circumstances that qualify as exigent from those that would not.” Evans v. Commonwealth, 290

4“Good faith” is not an exception that allows the Commonwealth to rely on evidence that was obtained prior to the execution of any warrant; good faith applies where a warrant is obtained and, though it is defective, it is relied on in good faith by the police officer who conducted the search. Derr v. Commonwealth, 242 Va. 413, 422 (1991). - 10 - Va. 277, 283 (2015). The Court, nonetheless, has provided a list of relevant factors for

consideration in such circumstances:

(1) the degree of urgency involved and the time required to get a warrant; (2) the officers’ reasonable belief that contraband is about to be removed or destroyed; (3) the possibility of danger to others, including police officers left to guard the site; (4) information that the possessors of the contraband are aware that the police may be on their trail; (5) whether the offense is serious, or involves violence; (6) whether officers reasonably believe the suspects are armed; (7) whether there is, at the time of entry, a clear showing of probable cause; (8) whether the officers have strong reason to believe the suspects are actually present in the premises; (9) the likelihood of escape if the suspects are not swiftly apprehended; and (10) the suspects’ recent entry into the premises after hot pursuit.

Verez v. Commonwealth, 230 Va. 405, 410-11 (1985). Suffice it to say, the Verez factors do not

support the Commonwealth’s claims of exigent circumstances here.

2. There Were No Exigent Circumstances Justifying a Warrantless Search Here

In the circuit court, the Commonwealth’s argument to establish exigent circumstances

boiled down to the need to protect against a possible danger in the house. “Exigent

circumstances” include situations “where officers arrest an individual in her home and there are

‘articulable facts’ that provide a reason for the officer to believe ‘that the area to be swept

harbors an individual posing a danger to those on the scene.’” Commonwealth v. Robertson, 275

Va. 559, 564 (2008) (“The Fourth Amendment permits the police to conduct a limited protective

sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable

belief, based on specific and articulable facts, that the area to be swept harbors an individual

posing a danger to those on the arrest scene.”). Here, however, there was no indication that the

area posed a danger to those on the arrest scene. Mr. Colazo and Mr. Price came out when

asked. There was no reason to suspect there were other people in the house that were going to

cause danger—Detective Buzzard even explained that he entered the home to see if there were - 11 - additional people inside. Detective Buzzard suggested that a sweep was needed because two

officers were leaving to go get a warrant, but there were five officers on the scene, and both

Mr. Colazo and Mr. Price were detained and cooperative at this point.

There were no articulable facts offered to explain why the officers had reason to believe

there were persons in the house who posed a danger. The circuit court found that a “protective

sweep” was not necessary in this case, and we agree with that finding.

On appeal, the Commonwealth introduces an argument that other exigent circumstances

justified the warrantless search—the imminent destruction of marijuana. 5 The Supreme Court of

Virginia has found that the potential for removal of evidence of criminal activity may establish

exigent circumstances—particularly in drug cases. However, such exigent circumstances, again,

were not established in the present case.

The Supreme Court of Virginia dealt with this issue in Evans. In Evans, officers on

patrol noticed the smell of marijuana emanating from a nearby apartment window. 290 Va. at

280. After a person in the apartment opened and slammed the door on the officers, a “gust of

wind” carried the smell of marijuana from inside the apartment. Id. at 281. The officers

knocked again and heard movement inside the apartment. Id. The door was answered again, at

which point the officers insisted they come in and investigate; they found a marijuana blunt and

residue. Id. The Supreme Court analyzed the circumstances, explaining “police officers find

themselves in a myriad of situations with varied fact patterns,” and chose to analyze it from a

“practical, commonsense” perspective. Id. at 283. It found that the cloud of “heavy and

extremely strong marijuana odors” and contemporaneous knowledge of the person in the

apartment that the police were at the doorway would naturally give her incentive to destroy or

The Commonwealth raises this issue in the context of a “right for the wrong reason” 5

argument. See Perry v. Commonwealth, 280 Va. 572, 579 (2010). - 12 - otherwise conceal the illegal drugs after the door was closed. Id. at 285. The Court cited two

cases from the Fourth Circuit in coming to its conclusion—United States v. Cephas, 254 F.3d

488, 496 (4th Cir. 2001), and United States v. Grissett, 925 F.2d 776, 778 (4th Cir. 1991); these

are both cases in which evidence was produced suggesting drug evidence would be destroyed

without swift police action.

In the present case, unlike Cephas and Grissett, the Commonwealth did not establish that

the officers had an objectively reasonable belief that drugs were going to be disposed of by

anyone inside the home—or even that anyone else was present in the residence. The officers are

not given the benefit of hindsight in knowing that Ms. Beverly was in the house or that drugs

were in the house—the inquiry is whether “a warrantless search [is] reasonable under the Fourth

Amendment . . . based on the information available to the officers at the time of entry and cannot

be supported by facts learned afterwards.” White, 73 Va. App. at 559 (finding that exigent

circumstances did not exist because officers had “no reasonable belief that contraband was about

to be removed or destroyed [and had] no knowledge or information at the time of entry even to

suggest that contraband was present”).

The testimony from Detective Buzzard indicated the officers entered the home to check

whether additional people were inside the home. There was no testimony suggesting the officers

reasonably believed anyone was inside with the capability of destroying evidence or the

inclination to do so. The circuit court correctly determined that the Commonwealth did not

establish exigent circumstances. Thus, the initial entry into Ms. Beverly’s home was unlawful.

C. The Circuit Court’s Finding that the Good Faith Exception Applies Here Must be Upheld

After finding the warrant defective, the circuit court determined that the “good faith”

exception trumped the exclusionary rule, thereby allowing the evidence from the search to be

considered at trial. The “good faith” exception allows for admission of evidence that would - 13 - otherwise be excluded in situations where a defective warrant has been issued and is relied on in

“good faith” by the officers in their search for evidence. In other words, the evidence need not

be excluded when “a police officer, acting in objective good faith, obtains a search warrant from

a magistrate judge and conducts a search within the scope of the warrant,” even if the warrant is

subsequently determined to be defective for Fourth Amendment purposes. Derr v.

Commonwealth, 242 Va. 413, 422 (1991). However, the good faith exception to the

exclusionary rule will not apply where:

(1)[T]he magistrate was misled by information in the affidavit which the affiant knew was false or should have known was false, (2) the issuing magistrate totally abandoned his judicial role, (3) the warrant was based on an affidavit “so lacking in indicia of probable cause” as to render official belief in its existence unreasonable or (4) . . . the warrant was so facially deficient that an executing officer could not reasonably have assumed it was valid.

Miles v. Commonwealth, 13 Va. App. 64, 71 (1991) (quoting Atkins v. Commonwealth, 9

Va. App. 462, 464 (1990)), aff'd on reh’g en banc, 14 Va. App. 82, (1992)). The circuit court

factually determined that none of these factors were established. Under the circumstances, we

are constrained to uphold the circuit court’s ruling.

Ms. Beverly takes issue with the circuit court’s “good faith” ruling—but she challenges it

by relying on a factual narrative that was rejected by the circuit court. She argues that since the

underlying affidavit states that the smell of marijuana emanated from “within the residence” the

unlawful “protective sweep” had to be the source of the key information leading to the granting

of the warrant. Thus, she asserts all evidence discovered in association with this initial illegal

sweep must be excluded. 6

6Ms. Beverly’s opening brief at page 7 specifically states that Ms. Beverly “is not challenging the veracity of the facts presented to the magistrate” but challenges that the “facts were obtained by a warrantless search of her residence.” - 14 - The problem with this theory is that it does not link up with the circuit court’s ruling—or

with the evidence in the case when it is viewed in best light for the Commonwealth. For

example, Detective Buzzard consistently stated that the smell of marijuana came from

Mr. Colazo’s person (not the residence). Most importantly—as far as the fact-finder was

concerned–Detective Buzzard testified that he smelled the odor on Mr. Colazo as Mr. Colazo

stood in an open doorway while exiting the house. The circuit court, during argument on the

suppression motion, stated to the defense: “I understand your argument but it . . . doesn’t

properly characterize the evidence presented today.” The court observed that when Mr. Colazo

came to the door, he smelled like marijuana, and the court further reasoned: “So that’s the

marijuana coming from a person and coming from the house where the person was just seconds

ago, a split second, a half second ago, inside that house. That’s what goes on the affidavit.

That’s all that goes on the affidavit.”

Thus, the fact-finder determined that Detective Buzzard’s account of events was “not

exactly” what was put in the affidavit by Detective Smith, the affiant, but that a “half second”

question of semantics explained the inconsistency. The court further ruled the misunderstanding

or error did not evidence intentional or reckless conduct. Thus, the court concluded that the

police could, in good faith, rely upon the warrant. The court stated:

[P]olice are entitled to rely on [a search warrant] unless . . . it’s so lacking in indicia of probable cause as to render [the] official [to] believe in it[]s existence [is] entirely unreasonable. Or if the magistrate was misled by information that the affiant knew was false. We don’t have any evidence of that here. Or would have known was false except for his reckless disregard of the truth and I find that we don’t have that here either. So for those reasons, the Court’s going to rule that notwithstanding a defective search warrant . . . evidence obtained from the warrant itself . . . will not be excluded.

- 15 - The findings that the magistrate was not misled by information the affiant knew or should

have known was false—and that there was no reckless disregard of the truth—are not challenged

on appeal. (See fn. 5, supra.)7

Despite Ms. Beverly’s insistence that the scent of marijuana underlying the warrant must

have come from the improper protective sweep, we are bound by the record before us.

Ms. Beverly’s theory is not consistent with the circuit court’s conclusion that a misunderstanding

occurred based on events prior to the sweep. See Martin v. Lahti, 295 Va. 77, 88-89 (2018)

(finding an appellant cannot prevail when their argument does not address the findings or rulings

of the trial court). Further, when the evidence is viewed in best light to the Commonwealth, as it

must be, the affiant left to get the warrant before the sweep and Detective Buzzard consistently

testified that the scent of marijuana came from persons (rather than the residence). The circuit

court’s finding of a misunderstanding that pre-dated the sweep (and did not emanate from the

sweep) is supported by the record—and Ms. Beverly “is not challenging the veracity of the facts

presented to the magistrate.” Accordingly, we must uphold the circuit court’s application of the

“good faith” exception.8 We affirm the circuit court’s ruling even as we note reservations

regarding several of the actions (the unnecessary “protective sweep” and the statements on the

defective warrant) taken by the officers as they undertook this search.

II. The Evidence is Sufficient to Support a Conviction Under Code § 18.2-250

“When reviewing the sufficiency of the evidence to support a conviction, the Court will

affirm the judgment unless the judgment is plainly wrong or without evidence to support it.”

7Ms. Beverly also points out that the officers would not have known her name or that the residence belonged to her absent the unlawful protective sweep. This information, however, did not go to probable cause under the warrant.

8 This conclusion renders moot the Commonwealth’s reliance on the independent source rule. - 16 - Carlson, 69 Va. App. at 766 (quoting Bolden v. Commonwealth, 275 Va. 144, 148 (2008)). We

must “give due weight to inferences drawn from those facts by resident judges and local law

enforcement officers.” Clarke v. Commonwealth, 32 Va. App. 286, 298 (2000) (quoting Ramos

v. Commonwealth, 30 Va. App. 365, 368 (1999)).

A conviction under Code § 18.2-250 requires a showing that the possessor knowingly or

intentionally possessed a controlled substance. Possession can be constructive, but “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 [item] and that it was subject to his dominion and control.” Clarke, 32 Va. App.

at 305 (quoting Hancock v. Commonwealth, 21 Va. App. 466, 469 (1995)); Woodfin v.

Commonwealth, 218 Va. 458, 460 (1977).

Viewed in the light most favorable to the Commonwealth, the evidence established that

Ms. Beverly was aware of the presence and character of the methamphetamine, which was

subject to her dominion and control. For example, in the second bedroom, officers located a

“glass smoking device” under the bed and a “clear plastic baggie of crystal-like substance”

“sitting right on top” of a space heater, in plain view. Based on his training and experience,

Detective Buzzard thought the bag contained crystal methamphetamine, for which the substance

field tested positive. Also in the second bedroom, Detective Buzzard observed “court papers

with Ms. Beverly’s name on them” and “white envelopes with her name” on them. He also

recovered a “black eyeglass case containing a glass smoking device with residue” on top of a

dresser in the second bedroom.

While not conclusive, a “person’s ownership or occupancy of premises on which the

subject item is found” is a “probative factor[] to be considered in determining whether the

totality of the circumstances supports a finding of possession.” Hall v. Commonwealth, 69

- 17 - Va. App. 437, 450 (2018); see Lane v. Commonwealth, 223 Va. 713, 716 (1982) (finding

relevant the defendant’s proximity to the drugs along with her “occupancy of the premises”);

Archer v. Commonwealth, 26 Va. App. 1, 12 (1997) (stating that “proximity to the contraband”

and “occupancy of the premises” provide probative evidence of constructive possession).

The circuit court’s conclusion that Ms. Beverly possessed the drugs is supported by the

facts and circumstances surrounding their discovery, including the numerous objects found, and

hidden, around the home to enable drug use, and the reasonable inferences that necessarily

follow. The evidence presented by the Commonwealth was sufficient to support her conviction.

CONCLUSION

For the foregoing reasons, we affirm the ruling of the circuit court.

Affirmed.

- 18 -