                  COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Frank and Agee
Argued by teleconference


TANYIN BERLIN HOLLEY
                                          MEMORANDUM OPINION * BY
v.   Record No. 0304-01-1                  JUDGE G. STEVEN AGEE
                                             DECEMBER 27, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                  John C. Morrison, Jr., Judge

          David H. Moyer for appellant.

          Steven A. Witmer, Assistant Attorney General
          (Randolph A. Beales, Attorney General, on
          brief), for appellee.


     Tanyin Berlin Holley ("the appellant" or "Holley") was

convicted in the Norfolk Circuit Court, sitting without a jury,

of possession of cocaine with intent to distribute, in violation

of Code § 18.2-248.    He was sentenced to serve a term of four

years imprisonment and to pay a fine of $250.    Holley appeals

his conviction averring that the trial court erred in (1)

denying his motion to suppress the Commonwealth's evidence

alleged to have been gathered in an illegal search in violation

of the Fourth Amendment to the United States Constitution; and

(2) finding the evidence sufficient to prove possession.    For




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
the following reasons, we affirm the actions of the trial court

and Holley's conviction.

                            I.    BACKROUND

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, only those facts necessary to a disposition of this

appeal are recited.

     On January 7, 2000, Officer Delp of the Norfolk Police

Department responded to a report of domestic violence at 1216

Hillside Avenue.   After arriving at the scene and investigating

the situation, Officer Delp arrested the appellant on a domestic

violence charge, which is not the subject of this appeal.

Incident to the arrest, the appellant was searched and $1,029

cash was discovered in his jacket pocket.      The search also

uncovered two identical keys to the appellant's vehicle.

     After reading the appellant the Miranda warnings, the

officer started a conversation with the appellant asking where

he worked.    The appellant responded that "he didn't work

anywhere; he hadn't worked for awhile."       The officer then asked

whether the appellant had ever been previously arrested.      The

appellant informed the officer that he had previously been

arrested on a charge of possession of cocaine with intent to

distribute.   When questioned about the large sum of money in his

possession, the appellant replied that some of the money was his


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mother's and he "just had the other money."   The appellant had

no explanation as to the source of the money.

     After placing the appellant in his police car, Officer Delp

asked the appellant's girlfriend, the complainant of the

domestic violence charge, whether the appellant was dealing

drugs.   She responded that the appellant had informed her, only

two weeks prior, that "he was dealing narcotics again."    She

further informed the officer that "if he had any narcotics, it

would be in his car."    At trial, the girlfriend denied making

these statements, but Officer Delp, testifying as a rebuttal

witness, affirmed that she did make the statements.

     After locating the vehicle outside the apartment, Officer

Delp asked the appellant if he owned it, and the appellant

admitted it was his.    The officer then asked whether anyone

other than the appellant drove the vehicle.   The appellant

replied, "Hell no.   No one drives my car but me."   His

girlfriend had previously informed the officer that "she was not

allowed to go in [the] car."    At trial, Officer Delp testified

that the girlfriend also said Holley "wouldn't allow anyone else

to drive the vehicle."

     Officer Delp then asked for permission to search the

vehicle for drugs and weapons.    The appellant responded, "Hell,

no, you're not searching my vehicle."




                               - 3 -
        The officer then alerted the narcotics unit, and Officer

Joseph and his canine, "Ace," arrived on the scene.      After

performing a "circle spin" ritual and circling the appellant's

vehicle, Ace alerted to the scent of narcotics at the driver's

door.       Officer Joseph then opened the door for Ace who moved to

the passenger area and began scratching at a black knapsack, in

which the officers found crack cocaine.       An envelope addressed

to the appellant was also found in the knapsack with the

cocaine.      No other items were recovered from the vehicle.

                        II.   THE WARRANTLESS SEARCH

        The appellant's first contention on appeal is that the

trial court erred in failing to grant his motion to suppress

evidence gathered in a warrantless search of his vehicle.        He

argues the police lacked probable cause to search his vehicle. 1

For the following reasons, we affirm the decision of the trial

court.




        1
       In his brief, the appellant presented us with the
additional question of whether the trial court erred in denying
his motion to suppress when the Commonwealth failed to establish
that exigent circumstances prevented the police officers from
obtaining a search warrant prior to searching the vehicle.
However, during oral argument, he conceded, pursuant to
Maryland v. Dyson, 527 U.S. 465 (1999), that exigent
circumstances are not required for the search of an automobile
where probable cause to search exists. We agree and find this
assignment of error to be without merit.

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                        A.   STANDARD OF REVIEW

     "In reviewing a trial court's denial of a motion to

suppress, 'the burden is upon the [appellant] to show that the

ruling, when the evidence is considered most favorably to the

Commonwealth, constituted reversible error.'"      McGee v.

Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)

(en banc) (quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265

S.E.2d 729, 731, cert. denied, 449 U.S. 1017 (1980)).      "Ultimate

questions of reasonable suspicion and probable cause to make a

warrantless search" involve issues of both law and fact,

reviewable de novo on appeal.     Ornelas v. United States, 517

U.S. 690, 699 (1996).

     "In performing such analysis, 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, 25 Va. App. at 198, 487

S.E.2d at 261 (citation omitted).      We have also recognized that

great deference should be afforded to the "peculiar fact finding

capability of the trial court" since it is "not limited to the

stark, written record," but "has before it the living witnesses

and can observe their demeanors and inflections."      Satchell v.

Commonwealth, 20 Va. App. 641, 648, 460 S.E.2d 253, 256 (1995).




                               - 5 -
             B.    PROBABLE CAUSE FOR THE WARRANTLESS SEARCH

     "Searches conducted without prior judicial approval are per

se unreasonable under the Fourth Amendment, subject to

exceptions allowed when exigencies require warrantless

searches."        McCary v. Commonwealth, 228 Va. 219, 227, 321 S.E.2d

637, 641 (1984) (citations omitted).       A recognized exception to

this general rule covers searches of most automobiles.         "The

police may search an automobile [without a warrant] . . . where

they have probable cause to believe contraband or evidence is

contained."        California v. Acevedo, 500 U.S. 565, 579-80 (1991).

Therefore, the warrantless search of the appellant's vehicle was

permissible if probable cause existed.       We find that the police

officers acted upon probable cause.

     When we review whether probable cause existed at the time

of a warrantless search, we look to "'what the totality of

circumstances meant to police officers trained in analyzing the

observed conduct for purposes of crime control.'"        Powell v.

Commonwealth, 27 Va. App. 173, 176-77, 497 S.E.2d 899, 900

(1998) (quoting Hollis v. Commonwealth, 216 Va. 874, 877, 223

S.E.2d 887, 889 (1976)).       "[T]he probable-cause determination

must be based on objective facts that could justify the issuance

of a warrant by a magistrate."        United States v. Ross, 456 U.S.

798, 808 (1982).




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     "'Probable cause exists where "the facts and circumstances

within [the arresting officers'] knowledge and of which they had

reasonably trustworthy information [are] sufficient in

themselves to warrant a man of reasonable caution in the belief

that" an offense has been or is being committed.'"    Jefferson v.

Commonwealth, 27 Va. App. 1, 12, 497 S.E.2d 474, 479 (1998)

(citations omitted).   The arresting officer is permitted to act

based on probabilities, and is not required to rely upon "hard

certainties."   Carson v. Commonwealth, 12 Va. App. 497, 502, 404

S.E.2d 919, 922, aff'd on reh'g en banc, 13 Va. App. 280, 410

S.E.2d 412 (1991), aff'd, 244 Va. 293, 421 S.E.2d 415 (1992).

     Here, Officer Delp found a large amount of cash on the

appellant who informed the officer that he was unemployed and

could not explain the origin of the money.   The appellant

admitted that he had been arrested for drug dealing in the past.

The appellant's girlfriend then informed the officer that the

appellant had recently admitted he had resumed drug dealing and

there might be drugs in his vehicle.   These factors, along with

the subsequent positive alert by the trained police narcotics

canine, satisfies the probable cause requirement.    See Brown v.

Commonwealth, 15 Va. App. 1, 421 S.E.2d 877 (1992) (an

informant's tip of illegal drug activity and a trained canine's

alert to the presence of narcotics found to be sufficient to

establish probable cause); see also Alvarez v. Commonwealth, 24


                             - 7 -
Va. App. 768, 485 S.E.2d 646 (1997).     Based on the totality of

the circumstances, the amalgamation of reasonably trustworthy

factors met or exceeded the baseline to sustain a finding of

probable cause to search the appellant's vehicle.

                    III.     SUFFIENCY OF THE EVIDENCE

     The appellant also argues the trial court erred in finding

the evidence sufficient to prove he in fact possessed the drugs

found in his vehicle.    For the following reasons, we affirm the

decision of the trial court.

                        A.   STANDARD OF REVIEW

     When considering the sufficiency of the evidence on appeal

in a criminal case, this Court views the evidence in the light

most favorable to the Commonwealth, granting to it all

reasonable inferences fairly deducible therefrom.        See

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975).   On review, this Court does not substitute its own

judgment for that of the trier of fact.     See Cable v.

Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992).

Witness credibility, the weight accorded the testimony and the

inferences to be drawn from proven facts are matters to be

determined by the fact finder.     See Long v. Commonwealth, 8 Va.

App. 194, 199, 379 S.E.2d 473, 476 (1989).        The trial court's

judgment will not be set aside unless it appears that the

judgment is plainly wrong or without supporting evidence.        See


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Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987).

                  B.   THE EVIDENCE IS SUFFICIENT

     "In order to convict a person of illegal possession of an

illicit drug, the Commonwealth must prove beyond a reasonable

doubt that the accused was aware of the presence and character

of the drug and that the accused consciously possessed it."

Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871

(1998).

          [P]roof of actual possession, [however,] is
          not required; proof of constructive
          possession will suffice. Constructive
          possession may be established when there are
          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.

Id. at 426, 497 S.E.2d at 872.   "Mere proximity to the

controlled substance, however, is insufficient to establish

possession.   Nevertheless, the possession need not be

exclusive."   Eckhart v. Commonwealth, 222 Va. 447, 450, 281

S.E.2d 853, 855 (1981).

     "Proof of constructive possession necessarily rests on

circumstantial evidence; thus, all necessary circumstances

proved must be consistent with guilt and inconsistent with

innocence and exclude every reasonable hypothesis of innocence."



                             - 9 -
Burchette v. Commonwealth, 15 Va. App. 432, 434, 425 S.E.2d 81,

83 (1992) (citations omitted).   "However, the 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).   "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).    We conclude the

evidence sufficiently proves beyond a reasonable doubt that the

defendant possessed the contraband.

     The evidence in this case established that the appellant

possessed the drugs found in the search of the vehicle.      The

cocaine was found inside a knapsack along with an envelope

addressed to the appellant, who was the sole owner of the

vehicle, and had in his possession, at the time of the search,

two keys to the vehicle.   No indicia of ownership or use of the

knapsack by anyone other than the appellant was found in the

vehicle or elsewhere.

     The appellant verified his dominion and control over his

vehicle when he stated, "No one drives the car but me."      This




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statement was collaborated by his girlfriend's statement that

"he wouldn't allow anyone else to drive the vehicle." 2

       The appellant contends our holding in Burchette, 15 Va.

App. 432, 425 S.E.2d 81, negates a finding of sufficient

evidence in this case.      We disagree and find Burchette

significantly distinguishable.

       In Burchette, the defendant's personal identification was

scattered about the vehicle and was not enclosed in a separate

container with the drugs.      In this case, by contrast, the

appellant's personal paper(s), and nothing else, was found with

the cocaine inside the knapsack.

       An additional distinguishing factor is the differing proof

of control of the vehicle involved in Burchette and the case at

bar.       In Burchette, only the defendant's title to the vehicle

and personal items within the car established his dominion and

control.      Not only is that evidence present in this case, but

       2
       At trial, however, Holley's girlfriend testified that the
appellant (1) did not have a driver's license; (2) was not the
only one who drove the subject vehicle; (3) had several friends
who drove the vehicle, and (4) had not driven the vehicle over
the two days prior to his arrest. The trial court was not bound
to credit this testimony. See Carter v. Commonwealth, 223 Va.
528, 532, 290 S.E.2d 865, 867 (1982) (the trial court determines
the credibility of the witnesses and the weight of their
testimony). In addition, on appeal, we must "discard the
evidence of the accused in conflict with that of the
Commonwealth, and regard as true all [of] the credible evidence
favorable to the Commonwealth and all fair inferences that may
be drawn" from that credible evidence. Watkins v. Commonwealth,
26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998).


                                 - 11 -
there is also the appellant's statement that he alone operated

the vehicle, which was corroborated by his girlfriend.      The

totality of the evidence establishes the appellant's exclusive

dominion and control.

     The Commonwealth's evidence was competent and sufficient to

prove beyond a reasonable doubt that the appellant was in

possession of the cocaine.   From the evidence presented as to

the appellant's ownership, control and dominion over the

vehicle, along with his personal property found with the

cocaine, the trial court could conclude beyond a reasonable

doubt that the defendant constructively possessed the drugs with

the intent to distribute.    "Although none of [the]

circumstances, standing alone, would have sufficiently proved

that defendant possessed the drugs, the facts combined to

support the finding that the narcotics discovered were subject

to defendant's informed 'dominion and control.'"       Hetmeyer v.

Commonwealth, 19 Va. App. 103, 111-12, 448 S.E.2d 894, 899-900

(1994).

     For these reasons, we uphold the decisions of the trial

court and affirm the appellant's conviction.

                                                             Affirmed.




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