NOTICE: The opinions posted here are subject to formal
revision. If you find a typographical error or other formal error, please notify
the Virginia Court of Appeals.





Present: Judges Elder, Clements and Felton

Argued at Chesapeake, Virginia

Record No. 3183-02-1






DECEMBER 9, 2003


Dean W. Sword, Jr., Judge

S. Jane Chittom, Appellate Defender (Public Defender Commission,

on briefs), for appellant.

Alice T. Armstrong, Assistant Attorney General (Jerry W.

Attorney General, on brief), for appellee.

Ronlondo Lavar Moody was convicted in a bench trial of (1)
possession of cocaine with

intent to distribute, in violation of Code ? 18.2-248 and (2)
possession of heroin with intent to

distribute, in violation of Code ? 18.2-248. On appeal, Moody
contends that the trial court erred

in admitting the evidence and denying his motion to suppress.
Finding no error, we affirm.


On April 5, 2002, at approximately 11:40 a.m., Portsmouth Police
Officer L.H.

McDonald, Jr. was on foot patrol in the Fairwood Homes section
of Portsmouth, a known high

crime area. He observed Ronlondo Moody standing in the street
leaning into a car window,

apparently handing something to the driver of the car. As
McDonald approached, a group of

three or four men about forty feet from Moody began yelling at
him drawing his attention to

Officer McDonald. When Moody turned around and faced him,
Officer McDonald noticed that

Moody had a plastic bag in his right hand. Officer McDonald did
not see the contents of the

plastic bag but observed Moody putting the bag in the waistband
of his shorts. Moody then

started walking away from the officer.

Officer McDonald caught up to Moody and placed him under arrest.
Officer McDonald

reached into Moody’s shorts and pulled out the plastic bag,
which contained 55 capsules of

heroin weighing approximately 3.9 grams. Officer McDonald also
found a small bag containing

3.8 grams of cocaine inside Moody’s right pants pocket.

On September 18, 2002, eight days before his trial, Moody filed
a motion to suppress all

evidence seized incident to or used as the basis of his arrest
on the grounds that the arrest lacked

probable cause.

Moody however, never requested a hearing on the motion to
suppress before trial. At the

start of Moody’s trial on September 26, 2002, the trial court
asked if there were "[a]ny motions

that we need to deal with before we begin trial of the
case." Moody answered "Your Honor, we

don’t have any pretrial motions, just a motion to separate
once the witnesses have been sworn."

The first objection by Moody to the validity of his arrest came
as the Commonwealth offered the

items seized from him into evidence. Moody argued that the
officer lacked probable cause to

make the arrest and that evidence recovered incident to that
arrest should be suppressed.

The trial court ruled that because there had been no hearing on
a motion to suppress

pursuant to Code ? 19.2-266.2, Moody’s objection came too
late. The court found that Moody

failed to comply with Code ? 19.2-266.2 requiring suppression
motions be heard at least three

days before trial. The court noted in passing that it would not
likely have sustained the motion

for suppression had it been timely made, and found no reason to
hear the motion. Moody

insisted that the trial court rule on the motion. The court
refused to do so.[2]

The trial court admitted the evidence, and subsequently
convicted Moody of possession

of cocaine with intent to distribute and possession of heroin
with intent to distribute. On

November 26, 2002, it sentenced Moody to five years in prison on
each charge, suspending five

years on the heroin charge.


Moody argues that the trial court erred in admitting the
evidence seized by the police

when it denied his motion to suppress because the officer did
not have probable cause to arrest

Moody. The Commonwealth contends that because Moody failed to
request a pretrial hearing on

his motion to suppress as required by Code ? 19.2-266.2, he
waived his right to challenge his

arrest. Because the record reflects that the trial court found
that Moody’s motion to suppress was

untimely and refused to hear it, we agree with the Commonwealth’s

"We utilize an abuse of discretion standard when reviewing
the trial judge’s denial of

appellant’s motion to consider the suppression motion after
the statutory deadline." Upchurch v.

Commonwealth, 31 Va. App. 48, 52, 261 S.E.2d 290, 292 (1999).
Code ? 19.2-266.2 governs

this statutory deadline and provides, in part, that:

Defense motions or objections seeking (i) suppression of

on the grounds such evidence was obtained in violation of the

provisions of the Fourth Amendment . . . to the Constitution of

United States or Article I . . . Section 10 of the Constitution

Virginia proscribing illegal searches and seizures . . . shall

raised by motion or objection, in writing, before trial. The

or objections shall be filed and notice given to opposing

not later than seven days before trial. A hearing on all such

motions or objections shall be held not later than three days

to trial, unless such period is waived by the accused, as set by

trial judge. The court may, however, for good cause shown and in

the interest of justice, permit the motions or objections to be

at a later time.

(Emphasis added).

"Generally, if the argument is not presented to the trial
court in this manner, then

appellant has not preserved it for appeal." Johnson v.
Commonwealth, 37 Va. App. 634, 644-45,

561 S.E.2d 1, 6 (2002) (citing Rule 5A:18; Upchurch, 31 Va. App.
at 51-53, 521 S.E.2d at

291-92 (discussing Code ? 19.2-266.2)). Allowing a defendant to
disregard, without good cause,

the requirements of Code ? 19.2-266.2, would prejudice the
Commonwealth, by excluding its

right to appeal evidence excluded as a result of a suppression
hearing.[3] See Upchurch, 31

Va. App. at 53, 521 S.E.2d at 292 ("The justification for
the requirement of a pretrial suppression

motion is readily apparent in light of the Commonwealth’s
limited right to appeal an adverse

suppression ruling.").

The parties agree that Moody timely filed a pretrial motion to
suppress on September 18,

2002. However, Moody never sought to have the motion heard as
required by Code

? 19.2-266.2. "By filing his pretrial motion to suppress
the [evidence], [Moody] acknowledged

his awareness of an alleged violation of his constitutional
rights before [trial]." Terry v.

Commonwealth, 30 Va. App. 192, 196, 516 S.E.2d 233, 235 (1999).
Prior to the start of the trial,

the court asked Moody if there were "[a]ny motions that we
need to deal with before we begin

trial of the case?" Moody’s counsel answered "we don’t
have any pretrial motions," except for

the motion to separate the witnesses.

Because Moody failed to meet the statutory requirements of Code
? 19.2-266.2, we find

no abuse of discretion by the trial court in refusing to hear
Moody’s untimely motion to suppress,

and find that he thereby waived his right to contest the
introduction of the contested evidence at


Accordingly, we affirm the judgment of the trial court.




[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.


[2]When Moody’s
counsel insisted that the trial court rule on her motion to suppress, the

court ruled that the motion could not be heard at that point in
the case, stating:

Not without leave of Court, unless you complied with the Statute

and the Rules. And as everybody knows, it takes away the

Commonwealth’s right to appeal, and I’m not granting it in

middle of trial. But for whatever purposes, . . . I wouldn’t

that motion even . . . if we were dealing with a motion to


[3]Pursuant to
Code ? 19.2-398, the Commonwealth may not appeal an erroneous

suppression ruling after the jury is impaneled and sworn in a
jury trial or evidence is received or

the first witness is sworn in a non-jury trial.