Dennis Henley, s/k/a, etc. v. Commonwealth of VA

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Bumgardner and Senior Judge Overton Argued at Richmond, Virginia

DENNIS HENLEY, S/K/A DENNIS HENLEY, A/K/A DENNIS HINTON MEMORANDUM OPINION * BY v. Record No. 0385-99-2 JUDGE RUDOLPH BUMGARDNER, III MAY 16, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Robert W. Duling, Judge

Matthew P. Geary (Goodwin, Sutton, Duval & Geary, on brief), for appellant.

Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

The trial court convicted Dennis Henley of possession of

cocaine upon a conditional plea of guilty. On appeal, he argues

the trial court erred in denying his motion to suppress. He

contends the seizure was illegal because the officer did not

have reasonable suspicion that he was engaged in criminal

activity or probable cause to search him. For the following

reasons, we affirm.

"In reviewing a trial court's denial of a motion to

suppress, '[t]he burden is upon [the defendant] to show that

th[e] ruling, when the evidence is considered in the light most

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. favorable to the Commonwealth, constituted reversible error.'"

McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261

(1997) (en banc) (citation omitted). While we review de novo

the ultimate questions of reasonable suspicion and probable

cause, we "review findings of historical fact only for clear

error and . . . give due weight to inferences drawn from those

facts by resident judges and local law enforcement officers."

Ornelas v. United States, 517 U.S. 690, 699 (1996).

Officer James Harrison and several other officers executed

a search warrant for drugs at a residence. Harrison found the

defendant in the dining area, searched him, and found cocaine on

his person. Harrison testified that the warrant was an all

persons warrant. Neither side introduced the warrant itself.

When a search is conducted pursuant to a warrant, "the

defendant must rebut the presumption of validity by proving that

the warrant is illegal or invalid." Lebedun v. Commonwealth, 27

Va. App. 697, 711, 501 S.E.2d 427, 434 (1998). This Court has

upheld the validity of warrants authorizing the search of all

persons present in the named location. See Morton v.

Commonwealth, 16 Va. App. 946, 951, 434 S.E.2d 890, 893 (1993).

The defendant did not attack the validity of the warrant or

the information upon which the magistrate found probable cause

to issue the warrant to search all persons present. The

uncontradicted evidence established that the search warrant

authorized a search of all persons present at the residence.

- 2 - The defendant was present as the officers entered to execute the

warrant, so the search of him was proper. The trial court did

not err in denying the motion to suppress. Accordingly, we

affirm the conviction.

Affirmed.

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