COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Clements and Felton Argued at Chesapeake, Virginia
KEITH McKINLEY WHITE MEMORANDUM OPINION* BY v. Record No. 0695-05-1 JUDGE ROBERT P. FRANK MARCH 21, 2006 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ACCOMACK COUNTY Glen A. Tyler, Judge
Paul D. Merullo (Stephen C. Swain; Shuttleworth, Ruloff, Giordano & Swain, P.C., on brief), for appellant.
Stephen R. McCullough, Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.
Keith M. White, appellant, was convicted, in a bench trial, of possession of cocaine with the
intent to distribute, in violation of Code § 18.2-248, and possession of a firearm while in possession
of a controlled substance, in violation of Code § 18.2-308.4. On appeal, he contends the trial court
erred in: 1) denying his motion to suppress by finding the search warrant was based upon probable
cause; and 2) in finding the evidence sufficient to convict him of possession of cocaine with the
intent to distribute. For the reasons stated, we affirm the convictions.
BACKGROUND
Rick Williams, Deputy of Accomack Sheriff’s Department, testified that on July 26, 2003,
he swore out an affidavit for a search warrant for appellant’s residence. The affidavit provided that:
A reliable confidential informant has advised this affiant that cocaine is routinely stored, and sold from the residence as described in Section 2 of this affidavit. The reliable confidential
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. informant, either by conversations with KEITH WHITE, or has observed cocaine with KEITH WHITE, has informed this affiant that there is presently a quantity of cocaine at the residence described in section 2 of this affidavit at this time. KEITH WHITE is a resident of this residence as described in section 2 of this affidavit. This affiant is aware that relatively large amounts of cocaine are easily concealed on the person. The affiant is aware that it is common for drug dealers to hide illegal drugs in vehicles and outbuildings that are elsewhere on the property to distance themselves from the illegal drugs.
Deputy Williams stated in the affidavit that the informant previously had provided
reliable information that had led to the recovery of drugs. Additionally, the informant is a past
user of cocaine and is familiar with the appearance of cocaine, and its price and packaging for
sale. The magistrate issued the warrant. Williams testified that he selected the language “either
by conversations with KEITH WHITE, or has observed cocaine with KEITH WHITE” in order
to “protect my informant.”
On July 27, 2003, Warren Carpenter, Chief of Police, knocked on the door of an enclosed
porch located on the side of appellant’s residence. Appellant responded to the door and exited
the residence. Carpenter then entered the residence through the porch. The enclosed porch
doubled as a utility room that contained a hot water heater. Upon entering, Carpenter observed a
cabinet bolted to the wall just below where the roof angled downward, leaving a small gap at the
top of the cabinet. Carpenter described the gap as “a real tight space,” only three to four inches
in height. From within that gap, police recovered an Altoid tin that contained a substance later
determined to be 12.6 grams of crack cocaine.
After police recovered the Altoid tin, another officer stood on a chair, took a broom and
“pushed something from the back at the other end of this opening.” A prescription pill bottle fell
from the same place where police had discovered the Altoid tin. The bottle, labeled in
appellant’s name, indicated that the prescription was for Fluoxetine and had been filled in
January 2003. -2- During the search, appellant asked one of the officers if they had found his gun.
Appellant stated, “It’s under my night stand.” The police recovered a nine-millimeter Luger
from that location, along with three nine-millimeter bullets. Police also recovered sixteen
nine-millimeter bullets from the porch.1
Deputy Williams testified as an expert in the field of narcotics. In his opinion, the street
value of cocaine found in the tin was $1,260. Williams opined that the possession of such a
quantity of cocaine was inconsistent with personal use. He based his opinion on the fact that the
cocaine was cut up into $20 pieces, indicating it was “premeasured [sic] for sale.” Additionally, he
testified that in this locality, drugs were distributed with very little packaging. Scales and plastic
bags were rarely used. “It’s mostly crack cocaine from the dealer to the person[’]s buying hands.”
Williams found no scales, cell phones or pagers.
In finding appellant guilty of possession of cocaine with the intent to distribute, the court
concluded that the cocaine and pill bottle “were put there because it was intended for them to be
hidden and certainly we can’t speculate that some stranger came in there coming and going and
stuck something of that nature up in there.” The court further found Deputy Williams’s testimony
credible regarding his opinion that the cocaine was not for personal use.
This appeal follows.
ANALYSIS
Search Warrant Affidavit
Appellant contends the search warrant was fatally defective because the affidavit set forth
an alternate explanation for the informant’s basis of knowledge. He maintains that such an
alternate statement, by definition, indicates the informer had no basis of knowledge, i.e., the
informer did not know the source of his information. Yet, appellant does not contest the
1 The record does not disclose the exact location of the bullets on the porch. -3- accuracy of either statement. Thus, he argues, the affidavit did not establish probable cause for
the issuance of the search warrant.
The Commonwealth responds that the magistrate had a substantial basis for his probable
cause finding. Alternatively, the Commonwealth argues that the good faith exception applies.
The Fourth Amendment provides that a search warrant shall issue only upon a showing of
probable cause supported by oath or affirmation. See Gwinn v. Commonwealth, 16 Va. App.
972, 974, 434 S.E.2d 901, 903 (1993). We have defined probable cause as follows:
Probable cause, as the very name implies, deals with probabilities. These are not technical; they are the factual and practical considerations in every day life on which reasonable and prudent men, not legal technicians, act. Probable cause exists when the facts and circumstances within the arresting officer’s knowledge and of which he has reasonable trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense had been or is being committed.
Saunders v. Commonwealth, 218 Va. 294, 300, 237 S.E.2d 150, 155 (1977). Whether probable
cause exists to support the issuance of a warrant is to be determined from the “totality of the
circumstances” that are presented to the magistrate. Illinois v. Gates, 462 U.S. 213, 238 (1983).
For the purpose of this opinion, we assume, without deciding, that the affidavit failed to
state the informant’s basis of knowledge. However, our inquiry does not end there. Generally,
“[w]here law enforcement officers illegally search private premises or seize property without
probable cause . . . the illegally seized evidence will be excluded . . . .” Colaw v.
Commonwealth, 32 Va. App. 806, 810, 531 S.E.2d 31, 33 (2000). The exclusionary rule, created
with the intent of deterring police misconduct, “operates as ‘a judicially created remedy designed
to safeguard Fourth Amendment rights generally through its deterrent effect, rather than [to
protect] a personal constitutional right of the party aggrieved.’” United States v. Leon, 468 U.S.
897, 906 (1984) (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)).
-4- However, because “[t]he deterrent effect of the exclusionary rule ‘is absent where an
officer, acting in objective good faith, obtains a search warrant from a magistrate and acts within
the scope of the warrant,’” Janis v. Commonwealth, 22 Va. App. 646, 653, 472 S.E.2d 649, 653
(quoting Derr v. Commonwealth, 242 Va. 413, 422, 410 S.E.2d 662, 667 (1991)), aff’d on reh’g
en banc, 24 Va. App. 207, 479 S.E.2d 534 (1996), evidence seized pursuant to an invalid search
warrant “is nevertheless admissible if the officer executing the warrant reasonably believed that
the warrant was valid.” Lanier v. Commonwealth, 10 Va. App. 541, 547, 394 S.E.2d 495, 499
(1990).
Under the “good faith” exception, then,
[w]here a police officer has an objectively reasonable belief that the issuing magistrate had probable cause to issue the search warrant, the officer may rely upon the magistrate’s probable cause determination and the evidence will not be excluded, even though the affidavit may not have provided the magistrate . . . with probable cause to issue the warrant.
Colaw, 32 Va. App. at 810-11, 531 S.E.2d at 33. In this case, while we have assumed that the
underlying affidavit did not provide the magistrate with probable cause to issue the warrant,
there is no evidence that the police officers executing the warrant acted other than in good faith
and with a reasonable belief that the warrant was valid. See United States v. Merritt, 361 F.3d
1005, 1013 (7th Cir. 2004) (observing that the officer’s “decision to obtain a warrant is prima
facie evidence of good faith”), rev’d on other grounds, 543 U.S. 1099 (2005).
There are, however, four recognized situations in which the good faith exception will not
be applied, specifically:
(1) where the 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) where the warrant was so facially deficient that
-5- an executing officer could not reasonably have assumed it was valid.
Atkins v. Commonwealth, 9 Va. App. 462, 464, 389 S.E.2d 179, 180 (1990). Nothing in the
record suggests the presence of any misleading information, that the magistrate totally
abandoned his judicial role, or that the warrant was so facially deficient that an executing officer
could not reasonably have assumed it was valid.
Appellant’s entire argument on appeal challenges only the sufficiency of the affidavit as
to probable cause. Our inquiry, then, focuses on the third prong, namely whether the warrant
was based on an affidavit “so lacking in indicia of probable cause” as to render official belief in
its existence unreasonable. “[A]s long as there is some indicia of probable cause in the
underlying affidavit, we will apply the good faith exception as long as a reasonable police
officer, after assessing the facts set forth in the affidavit, could have believed that the warrant
was valid.” Anzualda v. Commonwealth, 44 Va. App. 764, 781, 607 S.E.2d 749, 757 (2005)
(en banc) (emphasis in original). In the ordinary case where a warrant is issued by a detached
and neutral magistrate, a police officer “cannot be expected to question” that magistrate’s
determination of probable cause. Illinois v. Krull, 480 U.S. 340, 349 (1987).
Here, we find the affidavit does contain some indicia of probable cause. It is not a “bare
bones” affidavit that merely contains conclusory allegations with no facts to support the
conclusion. See Colaw, 32 Va. App. at 813, 531 S.E.2d at 34 (“A police officer could not
reasonably have believed that the warrant was properly issued when it was based on a ‘bare
bones’ affidavit that contained only conclusory assertions by a third-party informant about a
future event without supporting facts to constitute probable cause.”); see also United States v.
Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996) (“An affidavit that states suspicions, beliefs, or
conclusions, without providing some underlying factual circumstances regarding veracity,
reliability, and basis of knowledge, is a ‘bare bones’ affidavit.”). -6- The affidavit amply describes the residence to be searched, the owner of the residence,
his nickname, the credibility of the informant, including his past dealings with the police, the
source of the informant’s knowledge, and the items for which they were searching.
The affidavit indicates the informant either saw the drugs or was told by the suspect that
there were presently drugs on the premises. The officer explained that he presented an
alternative basis for knowledge to protect the identity of the informant. It should be noted that
appellant does not challenge the accuracy of either factual scenario, but only that the alternative
recitation is defective.2
Finding the good faith exception applies, we conclude the trial court did not err in
admitting the evidence seized pursuant to the search warrant.
Constructive Possession
Appellant next argues that the evidence was insufficient to prove he possessed cocaine
with the intent to distribute, challenging both his possession of the drugs and that any such
possession was with the intent to distribute.
“When the sufficiency of the evidence is challenged on appeal, we determine whether the
evidence, viewed in the light most favorable to the prevailing party, the Commonwealth, and the
reasonable inferences fairly deducible from that evidence support each and every element of the
charged offense.” Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779
(1999). “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, 348,
494 S.E.2d 859, 866 (1998). “Witness credibility, the weight accorded the testimony and the
2 Here, each factual scenario regarding the source of the informant’s knowledge was sufficient to support a finding of probable cause. -7- inferences to be drawn from proven facts are matters to be determined by the fact finder.” Foster v.
Commonwealth, 38 Va. App. 549, 554, 567 S.E.2d 547, 549 (2002).
Possession of a controlled substance may be actual or constructive. Archer v.
Commonwealth, 225 Va. 416, 418, 303 S.E.2d 863, 863 (1983). Constructive possession of illegal
drugs may be proven by “‘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 substance and that it was subject to his dominion and control.’” Burchette v. Commonwealth,
15 Va. App. 432, 434, 425 S.E.2d 81, 83 (1992) (quoting Drew v. Commonwealth, 230 Va. 471,
473, 338 S.E.2d 844, 845 (1986)).
Appellant contends that no evidence connects him to the drugs found in the Altoid tin
above the cabinet. We disagree. When the police arrived at appellant’s home on July 17, 2003,
he exited the residence through the side door to the porch. It was on this porch that police found
the tin containing cocaine. “Although mere proximity to the contraband is insufficient to
establish possession, it is a factor that may be considered in determining whether a defendant
possessed the contraband. Ownership or occupancy of the premises on which the contraband
was found is likewise a circumstance probative of possession.” Archer v. Commonwealth, 26
Va. App. 1, 12, 492 S.E.2d 826, 832 (1997) (citation omitted).
In the same gap as they found the cocaine, police recovered a prescription bottle belonging
to appellant. This circumstance tends to show that appellant was aware of the presence and
character of the cocaine and that it was subject to his dominion and control. See Hargraves v.
Commonwealth, 37 Va. App. 299, 314, 557 S.E.2d 737, 744 (2002) (finding inference that
appellant exercised dominion and control over drugs where they were found in a drawer with his
identification card); Archer, 26 Va. App. at 13-14, 492 S.E.2d at 832 (finding inference that
-8- appellant exercised dominion and control over gun where knife and gun were found under the same
mattress and appellant admitted to ownership of knife).
Appellant contends that others had access to this porch and could have placed the drugs
there.
Circumstantial evidence may establish the elements of a crime, provided it excludes every reasonable hypothesis of innocence. Tucker v. Commonwealth, 18 Va. App. 141, 143, 442 S.E.2d 419, 420 (1994). “The statement that circumstantial evidence must exclude every reasonable theory of innocence is simply another way of stating that the Commonwealth has the burden of proof beyond a reasonable doubt.” Commonwealth v. Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003). This Court must determine not whether there is some evidence to support [appellant’s] hypothesis of innocence but, rather, whether a reasonable fact finder, upon consideration of all the evidence, could have rejected appellant’s theories and found him guilty beyond a reasonable doubt. See Correll v. Commonwealth, 42 Va. App. 311, 327, 591 S.E.2d 712, 721 (2004)[, aff’d, 269 Va. 3, 607 S.E.2d 119 (2005)]. Whether a hypothesis of innocence is reasonable is a question of fact. Id.
Corbin v. Commonwealth, 44 Va. App. 196, 202-03, 604 S.E.2d 111, 114 (2004).
Appellant argues that the trial court improperly shifted the burden to him to produce
evidence that another person had hidden the drugs on the porch. However, a close reading of the
trial court’s ruling reveals only that the trial court rejected appellant’s hypothesis of innocence
based on the evidence presented at trial. The trial court found that it could not “from this
evidence conclude or even speculate that some stranger put that up there,” and further noted that
there was no evidence that another occupant living in the house had placed the drugs there. “The
Commonwealth need only exclude reasonable hypotheses of innocence that flow from the
evidence, not those that spring from the imagination of the defendant. ‘Hypotheses not flowing
from the evidence must be rejected.’” Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433
S.E.2d 27, 29 (1993) (quoting Fordham v. Commonwealth, 13 Va. App. 235, 239, 409 S.E.2d
829, 831 (1991)) (other citations omitted). -9- We find that the fact finder properly rejected appellant’s hypothesis of innocence.
Considering the street value of the drugs, it was unlikely someone had discarded or planted the
drugs. See Collins v. Commonwealth, 13 Va. App. 177, 180, 409 S.E.2d 175, 176 (1991)
(observing that cocaine is “something of significant value and not something that one is likely to
have abandoned or carelessly left in the area there”); see also Hamilton, 16 Va. App. at 755, 433
S.E.2d at 29 (finding that the Commonwealth met its burden without dispelling defendant’s
unsupported contention that someone else “surreptitiously discarded the pipe and cocaine in the
car”). In addition, a prescription bottle in appellant’s name and ammunition fitting appellant’s
gun was found on the same porch. Police executing the search warrant observed appellant on the
porch just before they entered the residence.
Thus, it was reasonable for the court to infer that appellant knew of the hiding place and
used it to conceal his cocaine. The trial court did not err in finding appellant constructively
possessed the cocaine found in the Altoid tin.
Possession With the Intent to Distribute
Appellant further argues that the evidence was insufficient to show he possessed the cocaine
with the intent to distribute. He reasons that because no “tools of the trade” were recovered from
his residence, there was no evidence of any intent to distribute. We disagree.
“Where an offense consists of an act combined with a particular intent, proof of the intent
is essential to the conviction.” Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156,
165 (1988). “Because direct proof of intent [to distribute drugs] is often impossible, it must be
shown by circumstantial evidence.” Id. “Circumstantial evidence is as competent and is entitled
to as much weight as direct evidence, provided it is sufficiently convincing to exclude every
reasonable hypothesis except that of guilt.” Coleman v. Commonwealth, 226 Va. 31, 53, 307
S.E.2d 864, 876 (1983).
- 10 - Among the circumstances that tend to prove an intent to distribute are “the quantity of the
drugs seized, the manner in which they are packaged, and the presence of . . . equipment related
to drug distribution.” McCain v. Commonwealth, 261 Va. 483, 493, 545 S.E.2d 541, 547 (2001)
(citations omitted). Firearms are among the equipment that has been recognized as tools of the
drug trade, the possession of which are probative of intent to distribute. Glasco v.
Commonwealth, 26 Va. App. 763, 775, 497 S.E.2d 150, 156 (1998), aff’d, 257 Va. 433, 513
S.E.2d 137 (1999).
Furthermore, “the absence of any paraphernalia suggestive of personal use . . . [is]
regularly recognized as [a] factor[] indicating an intent to distribute.” Welshman v.
Commonwealth, 28 Va. App. 20, 37, 502 S.E.2d 122, 130 (1998) (en banc). “‘Possession of a
quantity greater than that ordinarily possessed for one’s personal use may be sufficient to
establish an intent to distribute it.’” Gregory v. Commonwealth, 22 Va. App. 100, 110, 468
S.E.2d 117, 122 (1996) (finding sufficient evidence of intent to distribute based on possession of
seven baggies containing a total of 3.7 grams of cocaine) (quoting Iglesias v. Commonwealth, 7
Va. App. 93, 110, 372 S.E.2d 170, 180 (1988) (en banc)); see also Hunter v. Commonwealth,
213 Va. 569, 570, 193 S.E.2d 779, 780 (1973) (holding that proof that the quantity of drugs
possessed exceeds an amount normally possessed for personal use, without more, can be
sufficient to show an intent to distribute).
Williams opined that possession of such a quantity of cocaine was inconsistent with
personal use. He also testified that in this jurisdiction, scales and baggies were rarely used in the
distribution process. In addition to Williams’s expert opinion, the record contains evidence to
support the finding that appellant possessed the cocaine with the intent to distribute it. The
police found more that twelve grams of cocaine that had been cut into pieces for easy sale. In
addition, appellant admitted that he possessed a firearm, a tool of the drug trade, in his bedroom.
- 11 - Finally, the police found no devices that would indicate the drugs were for personal
consumption.
The Commonwealth’s evidence, which was based on more than Williams’s opinion, was
competent, not inherently incredible, and sufficient to prove beyond a reasonable doubt that
appellant possessed the cocaine with the intent to distribute it. We cannot say that the trial court
was plainly wrong in finding this evidence sufficient to convict appellant of possession with
intent to distribute cocaine.
We affirm the judgment of the trial court.
Affirmed.
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