                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Richmond, Virginia


AKEEM JEAN WILSON
                                            MEMORANDUM OPINION * BY
v.   Record No. 0433-02-2          CHIEF JUDGE JOHANNA L. FITZPATRICK
                                              DECEMBER 10, 2002
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF HENRICO COUNTY
                     L. A. Harris, Jr., Judge
          (David R. Lett, on brief), for appellant.
          Appellant submitting on brief.

          Donald E. Jeffrey, III, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Akeem Jean Wilson (appellant) was convicted of possession

with intent to distribute more than five pounds of marijuana in

violation of Code § 18.2-248.1.    Appellant contends that his

consent to search the car and the motel room was involuntary.    We

hold that appellant is procedurally barred from raising this issue

pursuant to Code § 19.2-266.2 and Rule 5A:18.

                            I.   BACKGROUND

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to that evidence all

reasonable inferences fairly deducible therefrom.     See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
       On July 25, 2001, Investigator W.R. Williams (Williams)

responded to a tip that an older model brown Honda with a car seat

was located in the parking lot of the Comfort Inn Motel and

contained a substantial amount of marijuana.   Williams drove

through the parking lot, found an older model black Honda with a

car seat and appellant sitting in the driver's seat.    Williams and

Investigator Layman, both dressed in plain clothes, but with their

badges displayed, approached the Honda on foot and asked appellant

if they could speak to him.   Appellant stepped out of the car and

gave his identification to the officers, which they returned to

him.   He said he was staying at the motel, but was in the parking

lot listening to music and waiting for a female friend.    Appellant

allowed the officers to pat him down for weapons but refused a

search of the car because the car "belonged to his friend Chris."

The officers told him he was free to leave, but the car was not.

Appellant remained in the area.
       The officers called for a canine unit to screen the car for

drugs and took appellant's identification to make sure there were

no outstanding warrants.   During the five or six minutes Williams

waited for the license check, he walked past the Honda and

"smell[ed] a strong odor of marijuana coming from the trunk area

of the vehicle."   The officers then placed appellant in handcuffs,

told him that he was not under arrest but was being detained

because they believed there was marijuana in the car.    The canine

"alerted" on the car, and Williams told appellant they would get a

search warrant for the car and asked him if they could search his

motel room.   He consented to the search of the motel room, and the

officers recovered approximately $9,000 and ten grams of

                                - 2 -
marijuana.       The officers returned to appellant and again asked him

for permission to search the car.          Williams said, "I also again

explained to [appellant] that he could give me consent to search

the vehicle, and after he paused, hesitated, and he said, sure.           I

asked him again, can I search your vehicle?         And he said, yes."

The trunk of the car contained forty-five pounds of marijuana.

        Appellant filed no pretrial motions contesting the validity

of his consent to search the car or the motel room.         He also made

no objection at any time during the Commonwealth's case to the

admissibility of the drugs or the search of the car or the motel

room.       The motion to strike made at the close of Commonwealth's

case was limited to the sufficiency of the evidence on the
                       1
conspiracy charge.         Only during closing arguments did appellant

address the issue of consent in any manner.

               The only quirk, as I call it, a small matter
               in the case would be whether, in fact, if
               [sic] the search was consensual. The only
               thing we talked about on the stand, [sic]
               the officer told him discreetly but then
               kept [sic] driver's license. To some, [sic]
               to some extent, not free to leave [sic].
               How far that goes as far as the search is
               concerned and what money is found, and then
               eventual consent to search the car [sic].

                    I would suggest because he kept his
               license, that this was not a consensual
               search.

        Appellant was found guilty of possession with the intent to

distribute more than five pounds of marijuana.

                                 II.    Analysis

        Code § 19.2-266.2 provides in pertinent part:

        1
            Appellant was found not guilty of conspiracy to sell


                                       - 3 -
             Defense motions or objections seeking (i)
             suppression of evidence on the grounds such
             evidence was obtained in violation of the
             provisions of the Fourth, Fifth or Sixth
             Amendments to the Constitution of the United
             States or Article I, Section 8, 10 or 11 of
             the Constitution of Virginia proscibing
             illegal searches and seizures and protecting
             rights against self-incrimination, . . .
             shall be raised by motion or objection, in
             writing, before trial. . . . The court may,
             however, for good cause shown and in the
             interest of justice, permit the motions or
             objections to be raised at a later time.

     In the instant case, appellant's closing argument is

essentially a motion to suppress the evidence.    "[T]he plain

language of Code § 19.2-266.2 requires that a defendant seeking

to suppress evidence based on a violation of his Fourth

Amendment rights must file a suppression motion no later than

seven days before trial, absent 'good cause shown and in the

interest of justice.'"     Upchurch v. Commonwealth, 31 Va. App.

48, 51, 521 S.E.2d 290, 291-92 (1999).     See also Schmitt v.

Commonwealth, 262 Va. 127, 146, 547 S.E.2d 186, 199 (2001) (tape

recording admitted into evidence because appellant failed to

comply with statutory requirements of Code § 19.2-266.2); Johnson

v. Commonwealth, 37 Va. App. 634, 644-45, 561 S.E.2d 1, 6 (2002)

(constitutionality of a code section not properly before Court

because appellant failed to comply with Code § 19.2-266.2);

Morrison v. Commonwealth, 37 Va. App. 273, 279, 557 S.E.2d 724,

727 (2002) (whether statutes were unconstitutionally vague not

properly before the Court because appellant failed to comply with


marijuana.

                                 - 4 -
Code § 19.2-266.2).   There is no dispute that appellant failed to

file a timely pretrial motion addressing the validity of his

consent to search his motel room and car.   The trial court did

not find any good cause or ends of justice exception for

appellant's failure to follow the mandated procedure.     As we

stated in Upchurch, the Commonwealth would be prejudiced by

allowing a defendant to disregard, without good cause, the

dictates of Code § 19.2-266.2.    This procedure is directly

related to the provisions of Code § 19.2-398, the Commonwealth's

right to appeal evidence excluded as a result of a suppression

hearing.    See 31 Va. App. at 52, 521 S.E.2d at 292.    Thus, we

hold appellant's failure to comply with the statutory

requirements of Code § 19.2-266.2 bars his raising the issue on

appeal.

     Additionally, a ruling of a trial court will not be reversed

unless an objection is stated "together with the grounds therefor

at the time of the ruling, except for good cause shown or to

enable the Court of Appeals to attain the ends of justice."       Rule

5A:18.    Appellant failed to object to the admission of any of the

evidence regarding the initial stop, the search of his motel

room, the detention, the search of the car, the anonymous tip or

the marijuana.   All the evidence was admitted without objection

by appellant.

                 An accused may not wait until the
            Commonwealth has rested its case before
            challenging the admissibility of . . .
            evidence. This must, of necessity, be the
            rule because whether such evidence is
            admissible is a question involving inquiry
            by the trial court before the evidence is
            presented to the [trier of fact]. If no

                                 - 5 -
          objection is raised until the Commonwealth
          has rested, the necessity and opportunity
          for such inquiry do not arise.
               [T]he defendant, by failing to act in a
          timely manner to prevent the admission of the
          . . . evidence, waived all objection thereto.
          Such evidence was, therefore, properly before
          the [trier of fact] for its consideration.

Poole v. Commonwealth, 211 Va. 258, 260, 176 S.E.2d 821, 823

(1970) (citations omitted).   See also McCary v. Commonwealth, 36

Va. App. 27, 40, 548 S.E.2d 239, 245 (2001) (certificate of

analysis on fourth bag of cocaine admitted because appellant

failed to object to its admission at the time).   Appellant's

failure to object to the admission of evidence or make an

appropriate motion to strike waived his objections.
     Thus, we affirm the trial court's ruling.

                                                          Affirmed.




                               - 6 -
