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

• Court: Court of Appeals of Virginia
• Decided: April 9, 2002
• Docket: 2090002
• Status: Unpublished

Opinion

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

- 2 - 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

- 3 - 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

- 4 - 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.

- 5 - 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

- 6 - 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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