Home / Fulltext Opinions / Virginia Court of Appeals / MCNAIR v. COMMONWEALTH



APRIL 27, 1999

Record No. 2717-97-2





Oliver A. Pollard, Jr., Judge

Present: Judges Benton, Willis and Lemons

Argued at Richmond, Virginia


Mary Katherine Martin, Senior Assistant Public
Defender (Office of the Public Defender, on brief), for

Jeffrey S. Shapiro, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.

Jeffery McNair was convicted in a bench trial
for possessing cocaine in violation of Code Sect. 18.2-250.
On appeal, he contends that the trial court erred (1) in refusing
to suppress evidence seized by the police during a warrantless
search of his residence after he reported a robbery, and (2) in
refusing to strike the evidence on the ground that it was
insufficient to prove the offense. Finding no error, we affirm
the conviction.


Officer William Hannum responded to a report
that a robbery was in progress at McNair’s apartment. McNair, who
was "very upset," told Officer Hannum that he had just
been robbed and that he believed the robbers were still inside
his apartment. Officer Hannum remained with McNair until two
other police officers arrived. Officer Hannum and several other
officers then searched McNair’s apartment, "mainly looking
for anyone who might have done the robbery . . . or any other
individuals that might need . . . assistance." During their
search of the two-level apartment, which "was in somewhat of
a state of disarray, of clutter," the officers entered
McNair’s second floor bedroom. Finding no one in the apartment,
the officers returned to the first floor living room and
discussed the robbery with McNair.

Detective Willie Wells arrived while Hannum and
two other officers were talking to McNair in the living room
area. At that time, an emergency crew was removing a victim. The
detective asked Hannum whether he or the other officers had
looked for clues. Without speaking to McNair about the robbery,
the detective then went upstairs "specifically looking for
evidence that the robbers might have dropped or left
behind." In McNair’s bedroom, which was in disarray, the
detective noticed a glass test tube lying in plain view on the
floor in the doorway to a closet. The test tube was intact,
contained a white substance, and was wet on the inside. The
detective testified that he recognized the tube as a type that
"is commonly used to cook up small amounts of crack
cocaine." When the detective questioned McNair about the
test tube, McNair said that the robbers must have dropped it when
they were in his bedroom. The white substance in the test tube
proved to be cocaine.

The trial court convicted McNair of possession
of the cocaine.


McNair contends that the test tube was
discovered by the police during an unlawful search and that the
trial court erred in refusing to suppress the test tube and
cocaine as evidence. Conceding that exigent circumstances existed
when the officers initially arrived at his apartment, McNair
argues that the exigency ceased to exist when the officers
determined that the robbers were no longer present and no one
needed emergency assistance and that the detective’s subsequent
warrantless search of the apartment violated the Fourth
Amendment. Without conceding that the exigent circumstances had
ended when the detective searched the bedroom, the Commonwealth
argues that McNair consented to the search. Because we find that
the detective’s search was made with McNair’s consent, we affirm
the trial court’s refusal to suppress the test tube and cocaine
as evidence. We do not address the question of continuing

When we review a trial court’s denial of a
motion to suppress, "[w]e view the evidence in a light most
favorable to . . . the prevailing party below, and we
grant all reasonable inferences fairly deducible from that
evidence." Commonwealth v. Grimstead, 12 Va. App.
1066, 1067, 407 S.E.2d 47, 48 (1991). In our analysis, "we
are bound by the trial court’s findings of historical fact unless
‘plainly wrong’ or without evidence to support them." McGee
v. Commonwealth
, 25 Va. App. 193, 198, 487 S.E.2d 259, 261
(1997) (en banc) (citing Ornelas v. United
, 517 U.S. 690, 699 (1996)).

"[T]he fourth amendment proscribes all
unreasonable searches and seizures and ‘"searches conducted
outside the judicial process, without prior approval of a judge
or magistrate, are per se unreasonable under the
Fourth Amendment – subject only to a few specifically
established and well-delineated exceptions."’" Cantrell
v. Commonwealth
, 7 Va. App. 269, 282, 373 S.E.2d 328, 334
(1988) (citations omitted). However, searches made by the police
with the consent of a person authorized to give consent "do
not implicate the fourth amendment." Iglesias v.
, 7 Va. App. 93, 99, 372 S.E.2d 170, 173 (1988); see
also Payne v. Commonwealth, 14 Va. App. 86, 88, 414
S.E.2d 869, 869-70 (1992). The Commonwealth must prove that,
given the totality of the circumstances, the consent was freely
and voluntarily given. See Hairston v. Commonwealth,
216 Va. 387, 388, 219 S.E.2d 668, 669 (1975); Commonwealth v.
, 28 Va. App. 374, 378, 504 S.E.2d 877, 879 (1998). Once
consent is given, the search remains lawful (1) as long as the
consenting individual cooperates with the police, and (2) if the
police do not exceed the scope of the consent. See Grinton
v. Commonwealth
, 14 Va. App. 846, 850-51, 419 S.E.2d 860, 862
(1992). While conducting a consensual search, the police may
lawfully seize an item that they discover in plain view if they
"have probable cause to believe that the item in question is
evidence of a crime or contraband." Conway v.
, 12 Va. App. 711, 721, 407 S.E.2d 310, 316
(1991) (en banc).

The officers responded to a report that a
robbery was in progress at McNair’s residence. McNair met the
responding officers and informed them that the robbers could
still be in his apartment. When an initial search of the
residence disclosed no suspects, McNair voluntarily assisted the
officers by answering questions while standing in the living room
of his apartment. At no point did he attempt to restrict or
terminate the officers’ investigation.

When Detective Wells arrived, he asked Officer
Hannum whether the officers had searched for clues to the
robbery. The detective then went upstairs. McNair did not object.

From this evidence, the trial court reasonably
inferred that McNair (1) consented to the officers’ presence in
his apartment for the purpose of investigating the robbery, (2)
observed the detective go upstairs, and (3) knew that the
detective was searching for clues. His failure to withdraw his
consent is evidence that he consented to the detective’s search. See
Lawrence v. Commonwealth, 17 Va. App. 140, 146, 435 S.E.2d
591, 594-95 (1993), aff’d, 247 Va. 339, 443 S.E.2d 160
(1994); see also Grinton, 14 Va. App. at
851, 419 S.E.2d at 863 ("[t]he scope of a search may be
further defined during the course of the search by the passive
acquiescence of the person whose property is being

McNair argues that the Supreme Court’s ruling
in Thompson v. Louisiana, 469 U.S. 17 (1984), is
controlling. We disagree. Thompson does not address the
situation at bar, because the police had McNair’s consent to
search for evidence of criminal activity. Indeed, the Court in Thompson
specifically explained that it "express[ed] no opinion as to
whether the search at issue . . . might [have] be[en] justified
as consensual." Id. at 23. Therefore, Thompson
does not control our decision.

Once valid consent is given, the police may
conduct a reasonable search of a residence until the consent is
unequivocally withdrawn. Any items discovered in plain view may
be seized by the searching officers and may be used as evidence
at trial. The trial court, therefore, correctly denied McNair’s
motion to suppress.


McNair next contends that the evidence was
insufficient to prove that he possessed the cocaine. He argues
that the evidence contained no direct proof of possession by him
and that the circumstantial evidence did not exclude the
reasonable hypothesis that the robbers left the test tube in his
closet. We disagree.

"To establish possession of a controlled
substance, it generally is necessary to show that the defendant
was aware of the presence and character of the particular
substance and was intentionally and consciously in possession of
it." Gillis v. Commonwealth, 215 Va. 298, 301, 208
S.E.2d 768, 771 (1974). However, constructive possession may be
proved through evidence demonstrating "that the accused was
aware of both the presence and character of the substance and
that it was subject to his or her dominion and control." Wymer
v. Commonwealth
, 12 Va. App. 294, 300, 403 S.E.2d 702, 706
(1991). Circumstantial evidence is sufficient to prove guilt
beyond a reasonable doubt so long as "all necessary
circumstances proved . . . [are] consistent with guilt and
inconsistent with innocence and . . . exclude every reasonable
hypothesis of innocence." Bishop v. Commonwealth, 227
Va. 164, 169, 313 S.E.2d 390, 393 (1984). The Commonwealth
"need not affirmatively disprove all theories which might
negate the conclusion that the defendant . . . [possessed the
cocaine], but the conviction will be sustained if the evidence
excludes every reasonable hypothesis of innocence." Higginbotham
v. Commonwealth
, 216 Va. 349, 353, 218 S.E.2d 534, 537

When an appellant challenges the sufficiency of
the evidence, we view the evidence "in the light most
favorable to the Commonwealth and give it all reasonable
inferences fairly deducible therefrom." Id. at 352,
218 S.E.2d at 537. The test tube containing the cocaine was found
at the door to McNair’s closet. The detective found moisture on
the inside of the test tube, a circumstance consistent with
cooking crack cocaine. The detective, who had participated in
executing more than one hundred search warrants, testified that
in his experience, he had "never located [a test tube] on a
person on the street before." Rather, such items were
normally "found in homes during search warrants." This
testimony supports the trial court’s finding that McNair’s
suggestion that the robbers had left the test tube was
unreasonable. Because the evidence supported no other plausible
explanation as to how the test tube came to be in McNair’s
closet, the trial court reasonably inferred that the test tube
and cocaine belonged to McNair.

Because the trial court did not err in denying
McNair’s motion to suppress and his motion to strike, we affirm
the judgment of the trial court.


Benton, J., dissenting.

I disagree with the conclusions that Jeffrey
McNair consented to Detective Wells’ search of his bedroom and
that the evidence was sufficient to prove that McNair possessed
the cocaine.


"The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated." U.S. Const.
amend. IV. "In a long line of cases, [the United States
Supreme] Court has stressed that ‘searches conducted outside the
judicial process, without prior approval by judge or magistrate,
are per se unreasonable under the Fourth Amendment
— subject only to a few specifically established and well
delineated exceptions.’" Thompson v. Louisiana, 469
U.S. 17, 19-20 (1984). "The landmark case of Mincey v.
, 437 U.S. 385 (1978) established that no ‘crime scene
exception’ to the warrant requirement exists." Hunter v.
, 8 Va. App. 81, 84, 378 S.E.2d 634, 635 (1989). See
also Thompson, 469 U.S. at 21 (reaffirming the Mincey
holding that creating a crime scene exception for a warrantless
search "’is inconsistent with the Fourth and Fourteenth

In Thompson, the record established that
the petitioner shot her husband and then attempted to kill
herself by taking a large quantity of pills. Before she lost
consciousness, however, the petitioner called her daughter, who
then called the police. The responding officers searched
petitioner’s residence, looking for additional victims or
suspects. See 469 U.S. at 18. This search uncovered no
evidence. Later, two homicide investigators arrived and searched
the residence for two hours for the purpose of finding evidence.
During this search, the investigators found items which were
later admitted into evidence against the petitioner at trial. See
id. at 18-19. The Supreme Court, in a per curiam opinion,
reversed the conviction and disagreed with the government’s
position that the petitioner, by making the call for assistance,
had a "diminished expectation of privacy." Id.
at 22. Specifically, the Court stated that the
"[p]etitioner’s call for help can hardly be seen as an
invitation . . . that would have converted her home into the sort
of public place for which no warrant to search would be
necessary." Id.

In this case, the evidence proved that when the
officers initially arrived at McNair’s apartment, they entered
and searched the apartment to look for possible suspects and
victims. At that time, McNair believed the robbers were still in
the residence. McNair’s suppression argument would lack merit had
the cocaine been recovered during this initial search. See
Thompson, 469 U.S. at 22. However, the cocaine was not
found during the initial search. Instead, the detective found it
later during a search made specifically for the purpose of
finding evidence. Because the search for victims or suspects had
earlier ended, no exigent circumstances then existed. See id.
at 21-22.

When McNair informed the initial responding
officers that the robbers might still be in his apartment, he did
no more than consent to those officers entering his apartment for
the purpose of removing the robbers and securing the premises. To
assume that McNair further consented to having his residence
searched a second time for clues, after the search for the
robbers had terminated, would grant the government power above
and beyond that which is constitutionally permitted.

We should emphasize that . . .
a protective sweep, aimed at protecting the
arresting officers, if justified by the
circumstances, is nevertheless not a full search
of the premises, but may extend only to a cursory
inspection of those spaces where a person may be
found. The sweep lasts no longer than is
necessary to dispel the reasonable suspicion of
danger and in any event no longer than it takes
to complete the arrest and depart the premises.

Maryland v. Buie, 494 U.S. 325, 335-36
(1990) (footnote omitted).

When the officers made the initial warrantless
search of the residence for victims and the robbers, that
warrantless search was a protective activity that was
"’strictly circumscribed by the exigencies which justif[ied] its initiation.’" Mincey, 437 U.S. at 393. See
also Arizona v. Hicks, 480 U.S. 321, 325 (1987)
(noting that the officers "taking action, unrelated to the
objectives of the authorized intrusion, which exposed to view
concealed portions of the apartment or its contents, did produce
a new invasion of respondent’s privacy unjustified by the exigent
circumstance that validated the entry"). The officers found
no robbery suspect and had arranged for an ambulance to remove
from the apartment a person who needed assistance. Thus, the
police had assuaged their safety concerns during their initial
search and before the detective arrived. As in Thompson,
the following circumstance is applicable:

Petitioner’s attempt to get . .
. assistance does not evidence a diminished
expectation of privacy on [his] part. To be sure,
this action would have justified the authorities
in seizing evidence under the plain-view doctrine
while they were in petitioner’s house to offer .
. . assistance. In addition, the same doctrine
may justify seizure of evidence obtained in the
limited "victim-or-suspect" search
discussed in Mincey. However, the evidence
at issue here was not discovered in plain view .
. . during the "victim-or-suspect"
search that had been completed by the time [the
detective] arrived.

Id. at 22. The exigency had ended
because "[a]ll the persons in [McNair’s] apartment had been
located before the investigating [detective] arrived there and
began [his] search." Mincey, 437 U.S. at 393.

The Commonwealth attempts to justify the search
based on consent. However, the principle "is well settled
that the burden is on the Commonwealth to establish an exception
to the warrant requirement." Walls v. Commonwealth, 2
Va. App. 639, 645, 347 S.E.2d 175, 178 (1986). "’Consent to
a search . . . must be unequivocal, specific and intelligently
given . . . and it is not lightly to be inferred.’" Elliotte
v. Commonwealth
, 7 Va. App. 234, 239, 372 S.E.2d 416, 419
(1988) (citation omitted). Thus, whenever the Commonwealth
alleges that a search was consensual, "[t]he [Commonwealth] . . . bears the burden of establishing consent and this burden is
heavier where the alleged consent is based on an
implication." Walls, 2 Va. App. at 645, 347 S.E.2d at
178. The Commonwealth’s "burden . . . is not satisfied by
showing a mere submission to a claim of lawful authority." Florida
v. Royer
, 460 U.S. 491, 497 (1983). See also Bumper
v. North Carolina
, 391 U.S. 543, 548-49 (1968).

The undisputed evidence proved the detective
did not ask for or receive McNair’s consent to search the
apartment for evidence. The detective asked the officers who had
first searched the apartment whether they had looked for
"clues to the robbery scene." The detective testified
that he "didn’t directly speak with [McNair] in regards to
the robbery." Clearly, this evidence established that the
detective’s search was unlawful because it was based on neither
lawfully obtained consent nor a search warrant. See Thompson,
469 U.S. at 22-23. It was an unreasonable intrusion upon McNair’s
privacy interest.

Furthermore, no evidence proved that McNair was
aware that the detective intended to search the apartment.
Although the evidence proved the detective asked Officer Hannum
whether the residence had been searched, the record fails to
indicate that McNair heard the question or even was aware that
the detective went upstairs. Thus, the evidence fails to prove
either McNair’s knowledge of or acquiescence in the detective’s
search. Additionally, acquiescence, without more, is insufficient
to prove consent. See Crosby v. Commonwealth, 6 Va.
App. 193, 199, 367 S.E.2d 730, 734 (1988). Consent could only be
found in this case by assuming facts not proved by the evidence.
Such an assumption impermissibly eases the Commonwealth’s heavy
burden of proving consent.

Because the trial judge refused to suppress the
cocaine discovered by the police in McNair’s apartment during a
warrantless search conducted without consent or exigency, I would
reverse the trial judge’s decision. Thus, I dissent from the
refusal to suppress the evidence.


I would also reverse the trial judge’s decision
on the sufficiency issue. The presence of cocaine in McNair’s
closet does not ipso facto prove McNair possessed
the cocaine. See Code Sect. 18.2-250(A). "To
convict a defendant of possession of an illegal narcotic drug,
the Commonwealth must show that the defendant was aware of the
presence and character of the drug and was intentionally and
consciously in possession of it." Hairston v.
, 5 Va. App. 183, 186, 360 S.E.2d 893, 895
(1987). The Commonwealth’s evidence failed to prove acts or
conduct from which the trial judge could infer beyond a
reasonable doubt that McNair knowingly and intentionally
possessed the cocaine found in the test tube on the second floor
of his residence. See id.

McNair contacted the police after a robbery
occurred in his residence. On the second floor, where the robber
or robbers had been, the police observed that McNair’s bedroom
was in disarray. According to the detective, this evidence was
consistent with one or more persons searching for something. When
asked about the test tube, McNair told the police that the
robbers must have left it in the apartment. Although the
detective testified that he had found test tubes similar to the
one found in McNair’s closet when executing search warrants for
drug distribution, no evidence negated the hypothesis that the
robbers left the test tube as they searched the room. The police
found no smoking devices in the residence or on McNair and found
no other drug paraphernalia related to cocaine.

"Suspicious circumstances, including
proximity to a controlled drug, are insufficient to support a
conviction." Behrens v. Commonwealth, 3 Va. App. 131,
135, 348 S.E.2d 430, 432 (1986). Although the test tube
containing cocaine was found in McNair’s bedroom, McNair was not
in that bedroom when the police arrived; he was outside. No
evidence proved McNair was in the bedroom at any time after the
robbers left and before the police discovered the test tube.
McNair denied knowledge of the test tube and told the police that
the test tube must have been dropped by the robbers. No testimony
explained when the test tube was last used. From this evidence,
it is just as likely the cocaine was last used by the robbers as
by McNair.

Thus, I cannot agree that the circumstantial
evidence excluded the reasonable hypothesis, proffered by McNair
at trial, that the robbers left the test tube behind. The
Commonwealth assumes that the robbers were in a hurry and,
therefore, could not have left the test tube behind. The
detective’s testimony concerning the likelihood of a test tube
being found on one’s person is cited in support of this theory.
However, the detective’s testimony fails to exclude the
reasonable hypothesis that the robbers were in the apartment with
McNair’s consent prior to the robbery. Such a hypothesis is
supported by evidence that McNair reported to the police that he
had been robbed. No evidence proved that the robbers had gained
forceful entry into the residence. The evidence also proved that
another person was in the apartment and apparently injured during
the robbery. Because the evidence did not exclude the presence of
the robbers in the apartment before the robbery occurred, the
evidence does not exclude the hypothesis that the robbers were
present long enough to use and possess the cocaine to the
exclusion of McNair. Because such a reasonable hypothesis has not
been eliminated by the Commonwealth, this conviction cannot
stand. See Drew v. Commonwealth, 230 Va. 471, 338
S.E.2d 844 (1986); Garland v. Commonwealth, 225 Va. 182,
300 S.E.2d 783 (1983); Burchette v. Commonwealth, 15 Va.
App. 432, 425 S.E.2d 81 (1992); Behrens, supra.

In this case, where the element of knowledge is
based on circumstantial evidence, "’all necessary
circumstances proved must be consistent with guilt and
inconsistent with innocence and exclude every reasonable
hypothesis of innocence.’" Garland, 225 Va. at 184,
300 S.E.2d at 784 (citation omitted). In the absence of such
proof, I would hold that the evidence is insufficient to
establish guilt beyond a reasonable doubt, and I would reverse
the conviction.