Elbert Lamont McCain v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: July 18, 2000
• Docket: 2368993
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata Argued at Alexandria, Virginia

ELBERT LAMONT McCAIN MEMORANDUM OPINION * BY v. Record No. 2368-99-3 JUDGE ROSEMARIE ANNUNZIATA JULY 18, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE James F. Ingram, Judge

Elwood Earl Sanders, Jr., Appellate Defender (S. Jane Chittom, Appellate Counsel; Public Defender Commission, on brief), for appellant.

H. Elizabeth Shaffer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Appellant, Elbert Lamont McCain, appeals his conviction by

the trial court without a jury for possession of cocaine with

the intent to distribute in violation of Code § 18.2-248, and of

possession of a firearm while possessing cocaine with the intent

to distribute in violation of Code § 18.2-308.4(B). He contends

the searches of him and his vehicle violated his rights under

the Fourth Amendment and that the evidence was insufficient to

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. sustain the convictions. 1 For the reasons that follow, we affirm

the convictions.

We review the evidence on appeal in the light most

favorable to the Commonwealth, and grant to it all reasonable

inferences that may be fairly drawn from it. See Glasco v.

Commonwealth, 26 Va. App. 763, 773, 497 S.E.2d 150, 155 (1998),

aff'd, 257 Va. 433, 513 S.E.2d 137 (1999). At approximately

2:00 a.m. on March 16, 1999, Richard Thomas, a police officer in

Danville, was patrolling the Grove Street/Gay Street area of the

city after the police department received several reports of

drug activity and suspicious people there.

McCain was sitting in his parked car with another

individual in front of an apartment building on Grove Street.

Thomas saw the car, then drove around the block and called for

another officer to assist him in the investigation. He returned

to Grove Street and pulled in behind the vehicle. A black

female who had not been there previously was leaning into the

driver's door. In addition to his headlights, Thomas

illuminated his spotlight and directed it toward McCain's

vehicle.

1 McCain was sentenced to seven years in prison and a fine of $700 on the first charge and three years in prison on the second. The court suspended the prison sentence on condition he serve four years in prison, followed by one year of probation and five years of good behavior.

- 2 - As Thomas exited his vehicle and approached the car, the

woman began to walk away. Thomas stopped her and asked, "what

was going on." She responded that "she was talking with her

brother" and continued walking. Thomas returned to the car and

shined his flashlight into the back seat "to make sure that

there[ ] [was] nothing that[ ] [was] going to surprise me."

When Thomas asked McCain what he was doing there, McCain

responded that he had come to see his brother who lived in the

apartments in front of which he was parked. He also told Thomas

that the woman who had just left was "a friend."

McCain handed Thomas a valid driver's license upon the

officer's request for identification. The passenger in the

vehicle, Samuel Glass, did not have identification but provided

his name and a valid social security number and address. Thomas

"ran both of their social security numbers, and checked [for

outstanding] warrants. They both came back clean."

After Thomas returned McCain's driver's license to him he

asked McCain if there were any weapons or contraband in the

vehicle. McCain responded in the negative. When Thomas asked

for permission to search the car, McCain consented. Thomas

asked both men to exit the car and move to the back of it. He

approached McCain and explained, "For my safety, I'm gonna pat

you down for a weapon." McCain "started getting a little irate"

and asked Thomas why a search of his person was necessary.

- 3 - Thomas told McCain the pat-down was for Thomas' safety and

stated that Thomas had a right to pat him down for weapons.

McCain began turning away, saying he did not want Thomas to

touch him, stepping backwards as he spoke. Thomas followed, but

ultimately permitted McCain to walk up the sidewalk to avoid

getting caught between McCain and Glass without a back-up

officer on the scene. Thomas patted down Glass and then

redirected his attention to McCain, who had walked about 35 feet

to the front door of the apartments and was banging loudly on

the door asking someone to open it. A chain link fence and a

gate separated the sidewalk from the yard in front of the house.

As Thomas began to walk towards the area near the gate, McCain

walked to the right of the front door behind a set of steps that

led to the second floor. Through decorative openings in a

concrete wall that separated him from McCain, Thomas could see

the shadow of McCain's arm reach out, and he could hear the

sound of metal rubbing against metal. After McCain walked back

behind the steps towards the front door, Thomas approached him,

followed by Officer Church. Thomas again explained that he was

going to pat McCain down for the officers' safety. McCain

permitted the pat-down; nothing unusual was found.

Thomas retraced McCain's steps to the area behind the

stairs, and there found a metal grocery cart. A handgun was

inside the cart. Thomas walked back to McCain, held up the gun

- 4 - and asked, "What was this?" McCain reacted by fleeing through

the front gate. Thomas gave chase, calling out that he was

under arrest for carrying a concealed weapon. Thomas caught up

with McCain after McCain fell as he turned left onto Monroe

Street. After a brief struggle, Officers Thomas, Church and

Guill succeeded in handcuffing McCain. As they lifted McCain

from the ground, Thomas found a digital scale and its cover

"right below his person." Upon searching McCain, Thomas found a

small bag containing a white rock substance later determined to

be cocaine in McCain's right front pocket, $937 in cash in

another pocket, and a change purse. Thomas opened the change

purse at the jail and found an additional $9.36 and a small

plastic bag containing a white powder substance, also determined

to be cocaine.

In the course of inventorying McCain's car, Thomas found a

pager, a cell phone, and a plastic bag containing two

individually wrapped, large off-white substances in rock form.

The white substances proved to be cocaine, weighing almost 60

grams.

THE MOTION TO SUPPRESS

When a motion to suppress is reviewed on appeal, we examine

the records of both the suppression hearing and the trial to

determine whether the evidence was lawfully seized. See Spivey

v. Commonwealth, 23 Va. App. 715, 721, 479 S.E.2d 543, 546

- 5 - (1997). The burden is on the defendant to demonstrate that the

trial court's ruling was "plainly wrong." Mu'Min v.

Commonwealth, 239 Va. 433, 440, 389 S.E.2d 886, 891 (1991). We

review de novo "ultimate questions of reasonable suspicion and

probable cause to make a warrantless search"; the determination

is a "mixed question of law and fact." McGee v. Commonwealth,

25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc)

(quoting Ornelas v. United States, 517 U.S. 690, 691 (1996)).

While we are "bound by the trial court's findings of historical

fact unless 'plainly wrong' or without evidence to support them"

and give "due weight to the inferences drawn from those facts by

resident judges and local law enforcement officers," id. at 198,

487 S.E.2d at 261, "we apply de novo our own legal analysis of

whether based on those facts a seizure occurred." Id. (citing

Satchell v. Commonwealth, 20 Va. App. 641, 648, 460 S.E.2d 253,

256 (1995) (en banc)).

"[I]f an officer has an 'articulable and reasonable

suspicion that . . . an occupant [of a vehicle] is . . . subject

to seizure for violation of the law,' the officer may conduct an

investigatory stop of the vehicle limited in time and scope to

ascertaining whether the suspicions are accurate." Bailey v.

Commonwealth, 28 Va. App. 724, 727, 508 S.E.2d 889, 890 (1999)

(quoting Delaware v. Prouse, 440 U.S. 648, 663 (1979)). "[T]he

act of requiring a person who has been operating a motor vehicle

- 6 - upon the public highways to produce an operator's license, is a

restraint upon the individual's freedom of movement and

constitutes a seizure of the person." Brown v. Commonwealth, 17

Va. App. 694, 697, 440 S.E.2d 619, 621 (1994); see Bailey, 28

Va. App. at 727, 508 S.E.2d at 890; Richmond v. Commonwealth, 22

Va. App. 257, 260-61, 468 S.E.2d 708, 709-10 (1996). In such an

encounter, "a reasonable person in [the defendant's]

circumstances would not . . . believe[ ] that he could terminate

the encounter once the officer retained the driver's license and

returned to his police vehicle to run a record check."

Richmond, 22 Va. App. at 261, 468 S.E.2d at 710.

Officer Thomas testified that on the date in question, the

police had received several reports of individuals possibly

engaged in drug distribution in the vicinity of Grove Street and

Gay Street. At approximately 2:00 a.m., he observed McCain's

vehicle parked on Grove Street, with an individual leaning into

the driver's side window. Given the reports received by the

police of possible drug activity in that area, and Thomas'

observation of an individual leaning into the window of a car

parked on Grove Street at that very late hour, it was reasonable

for Thomas to suspect there might be a drug transaction taking

place. His limited investigation of McCain was therefore

appropriate. By demanding McCain's driver's license and

equivalent information from Glass in the course of his

- 7 - investigation, and proceeding to conduct a check for outstanding

warrants, Thomas effected a seizure of the two men. See id.;

Brown, 17 Va. App. at 697, 440 S.E.2d at 621. 2 However, because

Thomas' action was supported by reasonable suspicion, the

seizure was lawful.

It only remains to determine whether the search was proper.

We find that it was proper, based upon McCain's consent to the

search. "[S]earches made by the police pursuant to a valid

consent do not implicate the Fourth Amendment." McNair v.

Commonwealth, 31 Va. App. 76, 82, 521 S.E.2d 303, 306 (1999) (en

banc) (citing Mincey v. Arizona, 437 U.S. 385, 390 (1978)). "A

consensual search is reasonable if the search is within the

scope of the consent given." Bynum v. Commonwealth, 23 Va. App.

412, 417, 477 S.E.2d 750, 753 (1996) (citation omitted). When

Thomas asked about the presence of weapons or contraband in the

vehicle, he was granted permission to search it. The pager,

2 The Commonwealth's reliance on Richmond is misplaced. The Commonwealth contends that in Richmond we found a seizure only because the police officer did not return the defendant's license after he took it. The Commonwealth relies upon our quotation from United States v. Lambert, 46 F.3d 1064, 1068 (10th Cir. 1995), for this assertion ("[W]hat began as a consensual encounter quickly became an investigative detention once the [officer] received [appellant's] driver's license and did not return it to him."). The facts of Richmond belie this contention, however, as the officer there returned the defendant's license before the challenged evidence was discovered. Thus, insofar as the language quoted from Lambert suggests that a seizure only occurs when an officer fails to return the defendant's license, that language is dicta.

- 8 - cell phone and cocaine later found as a result of the search

were properly admitted into evidence.

When Thomas sought consent to conduct a pat-down search,

McCain refused and walked away from the officer to the front

door of the apartments on Grove Street. While McCain stood

behind the stairs of the apartment building, Thomas heard a

"metal on metal" sound and saw the shadow of McCain's arm reach

over the metal grocery cart where McCain was standing. When

McCain returned to where Thomas and Glass were standing, he

permitted the pat-down. However, the search produced nothing of

any consequence.

After searching McCain's person, Officer Thomas

investigated behind the stairs of the apartment building and

found the handgun McCain had deposited there. When Thomas

presented the gun to McCain and asked, "What was this?," McCain

instantly fled. McCain's flight after being shown and asked

about the gun, when viewed together with all the circumstances

of the case, gave rise to probable cause to arrest him for

possession of a concealed weapon. See Langhorne v.

Commonwealth, 13 Va. App. 97, 102, 409 S.E.2d 476, 479 (1991);

see also Illinois v. Wardlow, 120 S. Ct. 673, 676 (2000). The

evidence found in the course of searching McCain incident to his

arrest, which included cocaine and some $937 in cash, was

therefore properly admitted into evidence. See Commonwealth v.

- 9 - Gilmore, 27 Va. App. 320, 327, 498 S.E.2d 464, 468 (1997) ("One

of the established exceptions to the Fourth Amendment's warrant

requirement is for a 'search incident to a lawful arrest.'"

(quoting United States v. Robinson, 414 U.S. 218, 224 (1973))).

SUFFICIENCY OF THE EVIDENCE

"On appeal, we view the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom." Hunley v. Commonwealth,

30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999). The judgment

of a trial court will be disturbed only if plainly wrong or

without evidence to support it. See id. The credibility of the

witnesses, the weight accorded the testimony, and the inferences

to be drawn from proved facts are matters to be determined by

the fact finder. See id.

Proof of Intent to Distribute

"'Because direct proof of intent [to distribute] is often

impossible, it must be shown by circumstantial evidence.'"

White v. Commonwealth, 25 Va. App. 662, 668, 492 S.E.2d 451, 454

(1997) (en banc) (quoting Servis v. Commonwealth, 6 Va. App.

507, 524, 371 S.E.2d 156, 165 (1988)). "'[A]ll necessary

circumstances proved must be consistent with guilt and

inconsistent with innocence and exclude every reasonable

hypothesis of innocence.'" Barksdale v. Commonwealth, 31

- 10 - Va. App. 205, 211, 522 S.E.2d 388, 391 (1999) (quoting Dukes v.

Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 (1984)).

Factors which may be considered to determine intent include

the quantity of drugs found, the presence of an unusual amount

of money, the presence of drug paraphernalia consistent with

involvement in the drug trade rather than personal use, such as

a scale, see Welshman v. Commonwealth, 28 Va. App. 20, 37, 502

S.E.2d 122, 130 (1998) (en banc), or a pager, see White, 25

Va. App. at 668, 492 S.E.2d at 454, and the presence of

firearms, which are also "recognized as tools of the drug trade,

the possession of which are probative of intent to distribute."

Glasco, 26 Va. App. at 775, 497 S.E.2d at 156. Here, the police

found 59.96 grams of cocaine in McCain's car, 55 of which were

packaged in two separate blocks in a single plastic bag. Cf.

White, 25 Va. App. at 664, 492 S.E.2d at 452 (1.54 grams of

cocaine found, a relatively small amount). The amount and the

packaging of the drugs possessed supports the conclusion that

McCain possessed cocaine with the intent to distribute. The

absence of evidence that McCain used drugs, the discovery of a

relatively large amount of cash in his possession, and the

presence of scales, a pager, and a .40 caliber semi-automatic

handgun, together constitute a body of evidence which

establishes beyond a reasonable doubt that McCain possessed the

cocaine with the intent to distribute it.

- 11 - Sufficiency of the Evidence on the Possession of the Firearm

Under Code § 18.2-308.4,

actual possession of both the firearm and the controlled substance is not required . . . . Constructive possession of either or both is sufficient for conviction. To support a conviction based upon constructive possession, 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 defendant was aware of both the presence and character of the substance and that it was subject to his dominion and control.

Jefferson v. Commonwealth, 14 Va. App. 77, 80, 414 S.E.2d 860,

862 (1992) (internal quotation omitted).

While the evidence in this case is circumstantial, we find

that it is sufficient to support McCain's convictions beyond a

reasonable doubt. The trier of fact could reasonably infer from

the chain of circumstances that McCain had the handgun on his

person when he initially refused consent to the pat-down. After

his attempt to enter his friend's house, McCain walked to the

side of the house, deposited the gun in the shopping cart behind

the concrete wall, and returned. He consented to the pat-down

only at that point, knowing the police officer would find

nothing on his person. The officer had previously seen the

shadow of McCain's arm reach out over the cart, and had heard

the sound of metal against metal. Nothing but the metal handgun

was found in the metal shopping cart afterwards. See Powell v.

Commonwealth, 27 Va. App. 173, 178, 497 S.E.2d 899, 901 (1998);

- 12 - Collins v. Commonwealth, 13 Va. App. 177, 178, 409 S.E.2d 175,

175 (1991). McCain's flight when confronted with the gun Thomas

found in the grocery cart was itself evidence of his guilt. See

Wardlow, 120 S. Ct. at 676; Langhorne, 13 Va. App. at 102, 409

S.E.2d at 479. Additionally, McCain's flight gave the trier of

fact a basis to conclude that McCain was lying about possession

of the gun to conceal his guilt. See Marable v. Commonwealth,

27 Va. App. 505, 510-11, 500 S.E.2d 233, 236 (1998).

We find the evidence in the case sufficient beyond a

reasonable doubt to support the convictions and affirm.

Affirmed.

- 13 -