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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Felton
Argued at Chesapeake, Virginia
Record No. 2767-02-1
MARCUS LEMONT BAILEY, S/K/A
MARCUS LAMONT BAILEY
COMMONWEALTH OF VIRGINIA
JUDGE LARRY G. ELDER
NOVEMBER 25, 2003
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND
COUNTY OF JAMES CITY
Samuel Taylor Powell, III, Judge
J. Stephen Roberts, Sr., for appellant.
Donald E. Jeffrey, III, Assistant Attorney General (Jerry W.
Attorney General, on brief), for appellee.
Marcus Lemont Bailey (appellant) appeals from his convictions
for possession of a
concealed weapon, possession of marijuana, possession of
cocaine, and possession of a firearm
while in possession of cocaine. On appeal, he contends the trial
court erroneously concluded that
(1) the search of his person did not violate the Fourth
Amendment; (2) he was not under
custodial arrest and, therefore, was not entitled to be informed
of his Fifth Amendment rights
before being questioned; and (3) the evidence was sufficient to
prove he possessed the firearm
taken from him at the scene of the traffic stop while he
simultaneously possessed the cocaine
later taken from him at the police station. We hold the trial
court’s denial of appellant’s motion
to suppress on Fourth and Fifth Amendment grounds was not error
and that the evidence was
sufficient to prove appellant simultaneously possessed both
cocaine and a firearm.
Therefore, we affirm the challenged convictions.
MOTION TO SUPPRESS
At a hearing on a defendant’s motion to suppress, the
Commonwealth has the burden of
proving that a warrantless search or seizure did not violate the
defendant’s Fourth Amendment
rights. Simmons v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d
656, 659 (1989). "In
determining whether the Commonwealth has met its burden, the
trial court, acting as fact finder,
must evaluate the credibility of the witnesses . . . and resolve
the conflicts in their testimony
. . . ." Witt v. Commonwealth, 215 Va. 670, 674, 212 S.E.2d
293, 297 (1975).
On appeal, we consider the evidence adduced at both the
suppression hearing and the
trial, DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d
540, 542-43 (1987), and we
view the evidence in the light most favorable to the party
prevailing below, here the
Commonwealth, granting to the evidence all reasonable inferences
fairly deducible therefrom,
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d
47, 48 (1991). "[W]e 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 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 review de
novo the trial court’s application
of defined legal standards, such as whether the police had
reasonable suspicion or probable cause
for a search or seizure or whether a suspect was "in
custody" for purposes of Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966),
to the particular facts of the
case. Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct.
1657, 1663, 134 L. Ed. 2d 911
(1996); see Thompson v. Keohane, 516 U.S. 99, 102, 116 S. Ct.
457, 460, 133 L. Ed. 2d 383
(1995) (discussing standard for "in custody"
REASONABLENESS OF SEARCH
An officer may effect a traffic stop when, inter alia, he
has probable cause to believe a
traffic violation has occurred. Dickerson v. Commonwealth, 35
Va. App. 172, 177, 543 S.E.2d
623, 626 (2001). During the course of the stop, he make take
certain steps to protect himself,
such as asking the driver to exit the vehicle for safety
reasons. Pennsylvania v. Mimms, 434
U.S. 106, 111 n.6, 98 S. Ct. 330, 333 n.6, 54 L. Ed. 2d 331
(1977). He may not search the driver
pursuant to issuance of a traffic citation and may frisk the
driver for weapons only if he develops
reasonable suspicion to believe the driver is armed and
dangerous. Knowles v. Iowa, 525 U.S.
113, 117-18, 119 S. Ct. 484, 488, 142 L. Ed. 2d 492 (1998). Once
the purpose of the stop has
been completed, the stop may not be extended absent consent or
amounting to reasonable suspicion or probable cause. Dickerson,
35 Va. App. at 178, 543
S.E.2d at 626.
Here, Officer McFarland effected a valid traffic stop for
speeding, as appellant concedes.
Further, the evidence, viewed in the light most favorable to the
Commonwealth, supports the
trial court’s finding that, during the course of that valid
stop, Officer McFarland twice smelled
the odor of unburned marijuana emanating from appellant’s
vehicle, in which appellant was the
sole occupant. Officer McFarland testified that he was familiar
with that smell based on his
training and experience. We hold Officer McFarland’s testimony
was not inherently incredible.
The trial court expressly stated that it "[took] into
consideration the officer’s experience and his
training. In this particular case he has unique qualifications
and he’s been to drug investigation
school and he has smelled marijuana in the past, unburned
This evidence provided Officer McFarland with (1) reasonable
suspicion to detain
appellant further to investigate whether he had marijuana, a
controlled substance, in his
possession and (2) probable cause to search appellant’s
vehicle for marijuana, see United States
v. Parker, 72 F.3d 1444, 1450 (10th Cir. 1995); United States v.
Haley, 669 F.2d 201, 203 (4th
the course of that valid ongoing detention, Officer McFarland was entitled to
question appellant further about whether he possessed
contraband. In response to that
questioning, appellant said he had a gun and pointed to his
right hip. Based on appellant’s
admission, Officer McFarland was justified, as he did, in
seizing the gun and detaining appellant
further to determine whether he had a concealed weapons permit.
Officer McFarland handcuffed
appellant but told him he was not under arrest at that time,
actions that were reasonable to protect
the officers’ safety. Jackson v. Commonwealth, 41 Va. App.
211, 238, 583 S.E.2d 780, 794
(2003) (en banc). After calling dispatch and determining
that appellant, in fact, did not have a
concealed weapons permit, McFarland had probable cause for
arrest. Thus, the evidence, viewed
in the light most favorable to the Commonwealth, supports the
trial court’s determination that the
seizure and search of appellant were reasonable under the Fourth
CUSTODIAL ARREST AND ENTITLEMENT TO MIRANDA RIGHTS
Miranda holds that "statements stemming from custodial
interrogation are inadmissible
unless certain procedural safeguards effective to secure the
privilege against self-incrimination
are provided. Custodial interrogation is ‘questioning
initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his
freedom of action in any
significant way.’" Wass v. Commonwealth, 5 Va. App. 27,
29-30, 359 S.E.2d 836, 837 (1987)
(quoting Miranda, 384 U.S. at 444, 86 S. Ct. at 1612).
"[T]he question is not whether a
reasonable person would believe he was not free to leave, but
rather whether a person would
believe he was in police custody of the degree associated with
formal arrest." 2 Wayne R.
LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure
? 6.6(c), at 526 (2d ed. 1999).
In determining whether a suspect is in custody when questioned,
"[t]he totality of
circumstances must be considered." Wass, 5 Va. App. at 32,
359 S.E.2d at 839. Appropriate
factors for consideration include the nature of the surroundings
in which the questioning takes
place, "the number of police officers present, the degree
of physical restraint, and the duration
and character of the interrogation." Id. at 32-33, 359
S.E.2d at 839. "An officer’s knowledge or
beliefs may bear upon the custody issue if they are conveyed, by
word or deed, to the individual
being questioned." Stansbury v. California, 511 U.S. 318,
325, 114 S. Ct. 1526, 1530, 128
L. Ed. 2d 293 (1994).
A routine, roadside traffic stop and the usual questioning
associated with such a brief stop generally will not be
"custodial interrogation" because the detention is
usually of very
short duration and the attendant circumstances "are not
the motorist feels completely at the mercy of police." Such
are usually in public and only one or perhaps two officers are
usually present. Consequently, Miranda warnings are not required
prior to the type [of] questioning usually associated with such
Cherry v. Commonwealth, 14 Va. App. 135, 138-39, 415 S.E.2d 242,
243-44 (1992) (quoting
Berkemer v. McCarty, 468 U.S. 420, 437-38, 104 S. Ct. 3138,
3148-49, 82 L. Ed. 2d 317 (1984))
(citation omitted). Although a stop based on reasonable
suspicion to conduct a narcotics
investigation may not be a "routine" traffic stop, it
nevertheless does not become a custodial
interrogation simply because the subject is narcotics. Id.
Here, Officer McFarland’s inquiry as to whether defendant had
anything on him that
McFarland needed to know about did not convert the brief
encounter into a formal arrest or
indicate to defendant that his freedom of movement was being
curtailed to the degree associated
with a formal arrest. Only Officers McFarland and Dillard were
present at the scene. Although
McFarland asked appellant to exit his vehicle and may have told
appellant he planned to search
the vehicle, the encounter had been brief, and neither McFarland
nor Dillard said or did anything
else tending to indicate to a reasonable person in appellant’s
position that "he was in police
custody of the degree associated with formal arrest." 2
LaFave, supra, at ? 6.6(c), at 526. Thus,
we hold the trial court did not err in denying appellant’s
motion to suppress on Fifth Amendment
SUFFICIENCY OF EVIDENCE TO PROVE SIMULTANEOUS
POSSESSION OF COCAINE AND FIREARM
Appellant’s conviction for violating Code ? 18.2-308.4
required proof that appellant
possessed cocaine and "simultaneously with knowledge and
intent possess[ed] any firearm."
Appellant contends the evidence was insufficient to prove he
possessed the firearm taken from
his person at the scene of the stop simultaneously with the
cocaine found in his pocket when he
was searched at the jail over an hour later. We disagree.
On appeal, we view the evidence in the light most favorable to
the Commonwealth and
accord the evidence all reasonable inferences fairly deducible
therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). 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. Long v.
Commonwealth, 8 Va. App. 194, 199, 379
S.E.2d 473, 476 (1989).
Any element of a crime may be proved by circumstantial evidence.
See, e.g., Servis v.
Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988).
Such evidence "is as
competent and is entitled to as much weight as direct
evidence," provided the evidence as a
whole "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
Commonwealth need only exclude reasonable hypotheses of
innocence that flow from the
evidence, not those that spring from the imagination of the
defendant." Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
Whether a hypothesis of
innocence is reasonable is a question of fact, Cantrell v.
Commonwealth, 7 Va. App. 269, 290,
373 S.E.2d 328, 339 (1988), and, therefore, is binding on appeal
unless plainly wrong, Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
See Commonwealth v.
Hudson, 265 Va. 505, 512-17, 578 S.E.2d 781, 785-88 (2003).
Here, the only reasonable hypothesis flowing from the evidence
in the record, viewed in
the light most favorable to the Commonwealth, was that appellant
simultaneously possessed the
cocaine and firearm. After Officer McFarland took the firearm
from appellant’s person, he
handcuffed appellant’s hands behind his back. Appellant then
remained handcuffed and in
Officer McFarland’s custody until Corporal Morgan searched
appellant in McFarland’s presence
at the jail a little over an hour later. Officer McFarland did
not see appellant make any attempt to
reach his front pocket during the intervening time and opined
that appellant would have been
unable to reach his front pockets while handcuffed even if he
had tried. McFarland testified
further that Corporal Morgan did not have anything in her hands
prior to reaching into
appellant’s pocket and extracting the bag of cocaine.
McFarland also testified that he was
"disgusted with" himself for not finding the cocaine
during his earlier search of appellant,
thereby acknowledging his own belief that the cocaine must have
been present at the earlier time.
Thus, despite McFarland’s admission that he "[could not] say for a fact" that appellant
simultaneously possessed the cocaine and firearm, the only
reasonable hypothesis flowing from
the evidence, viewed in the light most favorable to the
Commonwealth, was that appellant had
the cocaine in his pants pocket when Officer McFarland seized
the firearm from beneath
The trial court expressly or implicitly rejected as unreasonable
that the handcuffed appellant intentionally acquired the cocaine
after McFarland seized the
weapon or that Corporal Morgan planted the cocaine on appellant
and concluded the only
reasonable hypothesis was the one consistent with appellant’s
guilt. We hold the court’s
rejection of appellant’s alternative hypotheses of innocence
was not plainly wrong, and we
affirm his conviction for simultaneously possessing a firearm
For these reasons, we hold the trial court’s denial of
appellant’s motion to suppress on
Fourth and Fifth Amendment grounds was not error and that the
evidence was sufficient to prove
appellant simultaneously possessed both cocaine and a firearm.
Thus, we affirm the challenged
Code ? 17.1-413, this opinion is not designated for publication.
without deciding, contrary to the trial court’s holding, that Officer
McFarland lacked reasonable articulable suspicion to believe
appellant might be armed and
dangerous. The offense Officer McFarland was investigating
involved drug possession, not drug
distribution, cf. Harris v. Commonwealth, 9 Va. App. 355, 358,
388 S.E.2d 280, 282 (1990) ("A
reasonable suspicion of possession and distribution of
narcotics is indicative of dangerousness
authorizing a search for weapons." (emphasis added)), and
Officer McFarland articulated no
other basis for believing appellant might be armed and
dangerous, see Harrell v. Commonwealth,
30 Va. App. 398, 404-06, 517 S.E.2d 256, 258-60 (1999)
(invalidating weapons frisk where
officer was concerned for his safety but articulated no basis
for that concern and had back-up
officer to keep watch on driver and passenger while he entered
car to examine inspection