                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, AtLee and Senior Judge Haley
UNPUBLISHED


              Argued at Richmond, Virginia


              CHRISTOPHER WAYNE BUTLER
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0572-14-2                                  JUDGE RICHARD Y. ATLEE, JR.
                                                                                  APRIL 21, 2015
              COMMONWEALTH OF VIRGINIA


                                     FROM THE CIRCUIT COURT OF POWHATAN COUNTY
                                           Thomas V. Warren, Judge Designate

                               Susan E. Allen (The Law Office of Susan E. Allen, on brief), for
                               appellant.

                               Christopher P. Schandevel, Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                         On February 8, 2013, the Circuit Court of the County of Powhatan convicted

              Christopher Wayne Butler (hereinafter “appellant”) of felony possession of a controlled

              substance, felony possession of ammunition after conviction of a felony, and driving on a

              revoked license. The trial court sentenced appellant to concurrent one-year sentences for the

              felonies and 60 days in jail for driving on a revoked license.

                         Appellant contends that the trial court erred: (1) when it denied appellant’s motion to

              suppress evidence and statements “when it found that the search of Ms. Dervin’s vehicle an[d]

              all statements made by Mr. Butler were not a violation under the Fourth Amendment of the U.S.

              Constitution and Article 1, Sec. 10 of the Virginia Constitution;” and (2) “when it denied

              Mr. Butler’s motions to strike and found that the Commonwealth proved its case beyond a

              reasonable doubt as to the possession of the morphine when it found that Mr. Butler was in

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
possession of the morphine found in the center console of Ms. Dervin’s vehicle.” Thus,

appellant first challenges the constitutionality of the traffic stop and subsequent search, and

second challenges the sufficiency of the evidence tying appellant to the controlled substances

that led to his convictions. For the reasons that follow, we disagree and affirm the judgment of

the trial court.

                                     I. Relevant Facts

          On the evening of September 5, 2012, Powhatan County Deputy Crawford saw appellant

driving a vehicle on Route 522 in Powhatan County. Appellant subsequently pulled into a gas

station, and Deputy Crawford watched appellant enter the station’s convenience store. Deputy

Crawford knew appellant’s license had been revoked for driving while under the influence, and

therefore he was prohibited from driving. He waited outside the convenience store, intending to

stop appellant and issue a summons when he resumed driving. While waiting, Deputy Crawford

notified other officers in the area via radio that he had just seen appellant driving on a revoked

license. When appellant left the store, he did not return to his vehicle, but instead got into the

front passenger seat in another vehicle. The vehicle belonged to appellant’s cousin, whom

appellant had called for a ride. The driver, Jessica Dervin, was the girlfriend of appellant’s

cousin.

          Deputy Baltimore, also in the area, notified the other officers on the radio that he

witnessed appellant put a duffel bag into the back seat and then enter the vehicle. When the

vehicle left the gas station, Deputy Nice, who was parked across from the gas station, followed

appellant and Ms. Dervin. He conducted a check on the car’s plates, and when the result came

back, Deputy Nice activated his lights to stop the vehicle. Ms. Dervin drove approximately 150

yards, then turned into the driveway of the home of her and her boyfriend. Deputy Nice

approached the vehicle and explained that he only stopped her because another deputy was on

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his way to issue her passenger, appellant, a ticket. Deputy Nice permitted Ms. Dervin to go

inside after approximately three minutes.

       Deputy Nice walked to the passenger side to speak with appellant. During the course of a

friendly conversation, Deputy Nice asked if appellant was staying clean because he knew of

appellant’s prior drug use. Appellant replied “I don’t do that anymore. You can search me if

you want to.” Feb. 8, 2013 Tr. at 64. Deputy Nice asked appellant to exit the vehicle, searched

appellant’s person, the floorboard underneath the passenger seat, and the center console. In the

console, Deputy Nice found a prescription bottle for Adderall with appellant’s name on it. In

addition to Adderall pills, there were four round purple pills. Deputy Nice asked appellant what

type of pills they were, and appellant stated they were morphine. Appellant acknowledged to

Deputy Nice that he did not have a prescription for morphine. Ms. Dervin testified at trial that

appellant could have placed the pill bottle in the center console without her noticing. Appellant

also told the deputies that the duffel bag in the back seat belonged to him and offered to let them

search it. Another officer at the scene did so, finding five shotgun shells in the bag. A few

minutes after the initial stop, Deputy Crawford arrived and issued appellant a ticket for driving

with a revoked license.

                            II. Alleged Fourth Amendment Violations

       Appellant argues that the trial court erred in denying his motion to suppress appellant’s

statements and evidence obtained because appellant “was seized and following [sic] an unlawful

unconstitutional, unreasonable traffic stop seizure.” Appellant’s Brief at 6. Appellant appears to

believe that because no reasonable person in Ms. Dervin’s or appellant’s position would have

“felt free to leave,” id. at 10, “any statements that were perceived by the deputies as consent were

not freely and voluntarily given,” id.




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                                      A. Standard of Review

       When reviewing a denial of a motion to suppress, “we 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) (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)). The appellant

bears the burden of showing that the denial of his suppression motion, when the evidence is

considered in the light most favorable to the Commonwealth, was reversible error. Whitfield v.

Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464 (2003) (citing Murphy v.

Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002)).

                                  B. Validity of the Traffic Stop

       Appellant alleges several reasons the traffic stop was an improper investigatory stop

under Terry v. Ohio, 392 U.S. 1 (1968). First, appellant argues that because the driver of the

stopped vehicle, Ms. Dervin, committed no traffic infraction, the stop was unconstitutional.

Appellant claims that “[w]ith the exception of driving on a suspended license that occurred

previously . . . there was absolutely no reason or suspicion that Mr. Butler was committing any

illegal act when Ms. Dervin and he were illegally seized . . . .” Appellant’s Brief at 9.

       Appellant fails to recognize or acknowledge that the deputies already possessed probable

cause to arrest appellant, rendering any challenge under Terry unnecessary. There are “two types

of seizures of the person protected by the Fourth Amendment - arrest and investigatory stop.”

Baldwin v. Commonwealth, 243 Va. 191, 195, 413 S.E.2d 645, 647 (1992) (citing Terry, 392

U.S. 1). An officer may arrest an individual “when he has probable cause to believe that the

person seized has committed or is committing a criminal offense.” Id. (citing Dunaway v. New

York, 442 U.S. 200, 207-09 (1979)). In order to conduct a legal investigatory stop, the police

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officer must “‘have a reasonable suspicion, based on objective facts, that the individual is

involved in criminal activity.’” Whitfield, 265 Va. at 361, 576 S.E.2d at 465 (quoting Brown v.

Texas, 443 U.S. 47, 51 (1979)).

       We need not address whether Deputy Nice possessed a reasonable suspicion to justify an

investigatory stop, because he plainly already possessed the higher standard of probable cause to

arrest appellant. White v. Commonwealth, 24 Va. App. 234, 239, 481 S.E.2d 486, 488 (1997).

“Probable cause exists when the facts and circumstances within the officer’s knowledge, and of

which he has reasonably trustworthy information, alone are sufficient to warrant a person of

reasonable caution to believe that an offense has been or is being committed.” Taylor v.

Commonwealth, 222 Va. 816, 820, 284 S.E.2d 833, 836 (1981). It is well established that “a law

enforcement officer may lawfully arrest [an individual], without a warrant, for a misdemeanor

committed in his presence.” Fierst v. Commonwealth, 210 Va. 757, 760, 173 S.E.2d 807, 810

(1970). To the extent appellant contends that the stop was unlawful because Deputy Crawford

witnessed appellant committing a misdemeanor, but Deputy Nice initiated the traffic stop, that

argument is without merit. The law is clear that “‘so long as the officer who orders an arrest or

search has knowledge of facts establishing probable cause, it is not necessary for the officers

actually making the arrest or conducting the search to be personally aware of those facts.’”1


         1
            In Virginia, by statute, “officers may arrest without a warrant any person who
commits any crime in the presence of the officer . . . .” Code § 19.2-81. Under this statute, “a
warrantless arrest for a misdemeanor committed outside the presence of the arresting officer is
not valid where the information upon which the arrest is based is conveyed to the arresting
officer by the witnessing officer.” White, 24 Va. App. at 239, 481 S.E.2d at 488 (citing Penn v.
Commonwealth, 13 Va. App. 399, 404, 412 S.E.2d 189, 192 (1991)). Nevertheless, when such
an arrest “‘does not violate any constitutional rights, the defendant is not entitled to have
evidence seized pursuant to that arrest excluded.’” Id. at 239, 481 S.E.2d at 488-89 (quoting
Penn, 13 Va. App. at 406, 412 S.E.2d at 193). A “radio message from [the witnessing officer],
which was based on [the witnessing officer’s] personal observations, [i]s sufficient to give [the
arresting officer] probable cause to believe [the defendant] was guilty” of the misdemeanor. Id.
at 239, 481 S.E.2d at 489 (first, second, fourth, and fifth alterations in original) (citing Penn, 13
Va. App. at 408, 412 S.E.2d at 194).
                                                 -5-
White, 24 Va. App. at 240, 481 S.E.2d at 489 (quoting United States v. Laughman, 618 F.2d

1067, 1072 (4th Cir. 1980)). Deputies Crawford and Nice both knew appellant’s license had

been revoked. Deputy Crawford personally witnessed appellant driving and notified the other

officers in the area, including Deputy Nice. Accordingly, because Deputy Nice possessed

probable cause to arrest appellant, his stop of Ms. Dervin’s vehicle presents no Fourth

Amendment violation.

                       C. Time Elapsed between Misdemeanor and Arrest

       Appellant appears to allege that some constitutional infirmity exists because Deputy

Crawford did not seek an arrest warrant or issue a summons immediately upon observing

appellant driving on a suspended license. The Court does not see, and appellant fails to provide,

any justification for this argument. To the contrary, it is clear “‘[l]aw enforcement officers are

under no constitutional duty to call a halt to [a] criminal investigation [or make an arrest] the

moment they have the minimum evidence to establish probable cause.’” Kentucky v. King, 131

S. Ct. 1849, 1860-61 (2011) (quoting Hoffa v. United States, 385 U.S. 293, 310 (1966)).

                                       D. Consent to Search

       Appellant also alleges that the mere fact that appellant was in custody vitiates his

expressed consent to search. The question of whether “consent to a search was in fact voluntary

or was the product of duress or coercion, express or implied, is a question of fact to be

determined from the totality of all the circumstances.” Deer v. Commonwealth, 17 Va. App.

730, 735, 441 S.E.2d 33, 36 (1994) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227

(1973)). The trial court’s determination as to voluntariness “must be accepted on appeal unless

clearly erroneous.” Limonja v. Commonwealth, 8 Va. App. 532, 540, 383 S.E.2d 476, 481

(1989) (en banc) (citing Stamper v. Commonwealth, 220 Va. 260, 268, 257 S.E.2d 808, 814

(1979)). Moreover, “[t]he fact that a defendant is in custody at the time the consent is given does

                                                -6-
not of itself invalidate the consent.” Jones v. Commonwealth, 32 Va. App. 30, 39-40, 526

S.E.2d 281, 285 (2000) (quoting Commonwealth v. Rice, 28 Va. App. 374, 378, 504 S.E.2d 877,

879 (1998)).

       The evidence at trial showed that appellant invited Deputy Nice to search him and his

duffel bag without Deputy Nice even asking to search. At no point did appellant withdraw

consent or attempt to stop or limit the scope of the search. The trial court’s finding that appellant

provided voluntary consent is not clearly erroneous. Inasmuch as appellant argues that the

deputies needed Ms. Dervin’s consent to search the vehicle, the argument fails because appellant

cannot assert another person’s Fourth Amendment rights on his behalf. See Sullivan v.

Commonwealth, 210 Va. 205, 208, 169 S.E.2d 580, 582 (1969) (holding that only the individual

“against whom the search was directed, as distinguished from one who claims prejudice only

through the use of evidence gathered as a consequence of a search or seizure directed at someone

else,” may assert a claim of unlawful search and seizure (noting Alderman v. United States, 394

U.S. 165, 173 (1969))).

       For the foregoing reasons, we find that no Fourth Amendment violation occurred, and

accordingly, the trial court did not err in denying appellant’s motion to suppress.

                     III. Sufficiency of Evidence of Constructive Possession

       Appellant’s second assignment of error claims that the Commonwealth failed to present

sufficient evidence to support a finding that appellant constructively possessed the morphine

pills, and thus the trial court erred in denying appellant’s motion to strike.

                                       A. Standard of Review

       “A motion to strike challenges whether the evidence is sufficient to submit the case to the

jury.” Lawlor v. Commonwealth, 285 Va. 187, 223, 738 S.E.2d 847, 868 (2013) (citing

Culpeper Nat’l Bank v. Morris, 168 Va. 379, 384, 191 S.E. 764, 766 (1937)). “Whether the

                                                 -7-
evidence adduced is sufficient to prove each of those elements is a factual finding, which will not

be set aside on appeal unless it is plainly wrong.” Id. at 223-24, 738 S.E.2d at 868 (citing

George v. Commonwealth, 242 Va. 264, 278, 411 S.E.2d 12, 20 (1991)). “In reviewing that

factual finding, we consider the evidence in the light most favorable to the Commonwealth and

give it the benefit of all reasonable inferences fairly deducible therefrom.” Id. at 224, 738 S.E.2d

at 868.

                                             B. Analysis

          Because the morphine pills were found in the vehicle, not directly on appellant’s person,

the Commonwealth relied on a theory of constructive possession. To demonstrate that a

defendant constructively possessed contraband, the prosecution must show that “the defendant

was aware of both the presence and character of the [item] and that it was subject to his

dominion and control.” Wright v. Commonwealth, 53 Va. App. 266, 273-74, 670 S.E.2d 772,

775 (2009) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)).

Awareness can be shown through “‘evidence of acts, declarations or conduct of the accused from

which the inference may be fairly drawn that he knew of the existence of narcotics at the place

where they were found.’” Hardy v. Commonwealth, 17 Va. App. 677, 682, 440 S.E.2d 434, 437

(1994) (quoting Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814 (1975)).

“In resolving this issue, the court must consider ‘the totality of the circumstances disclosed by

the evidence.’” Glasco v. Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150, 155 (1998)

(quoting Womack v. Commonwealth, 220 Va. 5, 8, 255 S.E.2d 351, 353 (1979)).

          Particularly when viewed in the light most favorable to the Commonwealth, as we must

because the Commonwealth prevailed below, the evidence presented at trial was sufficient to

establish that appellant constructively possessed the morphine pills. Accordingly, the trial court

did not err in denying appellant’s motion to strike. First, the prescription bottle containing the

                                                 -8-
morphine pills had appellant’s name on it. Further, when Officer Nice inquired as to what the

round purple pills were, appellant readily told him they were morphine, and he acknowledged

that he did not have a prescription for morphine. Taken together, these facts are sufficient to

support a finding that appellant was aware of the presence and character of the morphine pills.

The evidence also supports a finding that the pills were subject to appellant’s dominion and

control. The bottle was in the center console, directly beside appellant’s seat in the vehicle.

Ms. Dervin testified that appellant could have put them in the console without her knowledge. In

sum, the evidence supports a finding that appellant constructively possessed the morphine pills;

therefore, the trial court did not err in denying appellant’s motion to strike the evidence.

                                          IV. Conclusion

       For the foregoing reasons, we find the trial court did not err in denying appellant’s

motion to suppress or motion to strike. Accordingly, we affirm the ruling of the trial court.

                                                                                           Affirmed.




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