                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Malveaux and Senior Judge Annunziata
              Argued by teleconference
UNPUBLISHED




              COMMONWEALTH OF VIRGINIA
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0555-18-1                                  JUDGE ROBERT J. HUMPHREYS
                                                                                 AUGUST 21, 2018
              LORENZO EUGENE GHOLSON


                             FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                                               Gary A. Mills, Judge

                               Brittany A. Dunn-Pirio, Assistant Attorney General (Mark R.
                               Herring, Attorney General, on briefs), for appellant.

                               Artisha Todd Gregg (Rice, Paige, Pandya & Gregg, on brief), for
                               appellee.


                     The Commonwealth of Virginia (“the Commonwealth”) appeals the March 28, 2018

              order of the Circuit Court of the City of Newport News (“circuit court”) granting Lorenzo

              Eugene Gholson’s (“Gholson”) motion to suppress statements made, and evidence seized, on

              October 30, 2015. The Commonwealth argues that the circuit court erred in suppressing the

              evidence because there was sufficient probable cause to arrest Gholson for possession with intent

              to distribute drugs seized from the residence at 1606 Ivy Avenue in the City of Newport News.

                                                      I. BACKGROUND

                     On October 30, 2015, the City of Newport News Police Department executed a valid

              search warrant on 1606 Ivy Avenue in the city of Newport News. Gholson’s brother, Robert,

              had sold marijuana to an informant at this address within the preceding forty-eight hours. Prior

              to executing the warrant, police performed surveillance of the location for approximately thirty


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
to forty-five minutes. During this time, police observed an individual matching Gholson’s

description enter and leave the house several times. When police exited the vehicle to serve the

warrant and began walking towards the house, Gholson was across the street. Upon seeing

police, Gholson began moving rapidly towards the house. Police intercepted and detained

Gholson outside the house, and once the property was secure, brought Gholson inside. Police

located cocaine, heroin, and marijuana inside the residence. Police also found two letters

addressed to Gholson, one from a health care provider, which was undated, and one from a law

firm, dated in June, 2015. Police asked Gholson about a moped inside the house, which he

indicated was “ours.” Gholson also asked a detective who was standing on a pair of shoes to

“step off my shoes.” When subsequently asked whether the shoes were his, Gholson replied that

he didn’t know whose they were. Significantly, the record before us is largely silent with respect

to where in the home the drugs, marijuana, mail, shoes or moped were located.

       Police arrested Gholson for possession with intent to distribute marijuana, cocaine, and

heroin in violation of Code § 18.2-248 and § 18.2-248.1 based on his constructive possession of

all the narcotics in the house. In a search incident to arrest, they found a sizable amount of

currency on his person. Gholson and Robert were then placed in the back of a police car which

was equipped with recording equipment. In speaking to Robert, Gholson made incriminating

statements indicating he was aware of drugs in the house.

       At the suppression hearing, police testified that they had a history of encountering

Gholson at the house, having served previous search warrants on the house in 2011 and 2012,

finding Gholson present on both occasions. Police also testified that Gholson’s car was

frequently seen parked outside the house in 2014 and 2015. Cynthia Banks, whose daughter has

an eight-month-old child with Gholson, testified that Gholson has been living with her since

2014. The circuit court found that Gholson’s detention while the search was ongoing was

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proper, but that police lacked probable cause to arrest Gholson, and granted his motion to

suppress the money recovered from his person and his statements made in the police vehicle.

The circuit court explained that Gholson could have moved out of the house and that the mail,

moped, and shoes did not indicate he lived at the residence, noting the absence of items crucial in

similar cases, such as a birth certificate or government identification.

                                          II. ANALYSIS

                                      A. Standard of Review

       “In an appeal by the Commonwealth of an order of the trial court suppressing evidence, the

evidence must be viewed in the light most favorable to the defendant and findings of fact are

entitled to a presumption of correctness unless they are plainly wrong or without evidence to

support them.” Commonwealth v. Peterson, 15 Va. App. 486, 487, 424 S.E.2d 722, 723 (1992)

(citing Code § 8.01-680; Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48

(1991)).

               A defendant’s claim that evidence was seized in violation of the
               Fourth Amendment presents a mixed question of law and fact that
               we review de novo on appeal. In making such a determination, we
               give deference to the factual findings of the trial court and
               independently determine whether the manner in which the
               evidence was obtained meets the requirements of the Fourth
               Amendment.

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

omitted).

              B. Whether There Was Sufficient Probable Cause to Arrest Gholson

       “[P]robable 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”

by the person arrested. Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E.2d 833, 836

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(1981). “In determining whether a police officer had probable cause to arrest a defendant, a trial

court must consider the totality of the facts and circumstances presented and what those facts and

circumstances reasonably meant to a trained police officer.” Jones v. Commonwealth, 279 Va.

52, 59, 688 S.E.2d 269, 273 (2010).

       The Commonwealth argues that the circuit court erred by limiting its probable cause

analysis to the question of Gholson’s residency. They argue that the totality of the circumstances

includes additional factors which establish constructive possession. First, that on October 30,

2015, police observed a man matching Gholson’s description enter and exit the residence several

times in the forty-five-minute span before the warrant was executed. Second, that Gholson ran

towards the house when police exited their vehicles, which, the Commonwealth argues, shows

that Gholson was attempting to conceal something within the house. Third, that Gholson’s

statements regarding the shoes and moped constituted him “assert[ing] a possessory interest in at

least two items in the house” and that it would therefore be reasonable to infer that Gholson

possessed other items in the house. Finally, the Commonwealth points to Gholson’s relationship

with the other occupants of the house, his mother and his brother, as a factor for consideration.

       At oral argument, the Commonwealth characterized the probable cause standard as “a

low bar.” While probable cause is certainly a lesser standard than the burden of proof required

for a conviction, it nevertheless requires “a reasonable ground for belief” that a suspect is

involved in criminal activity (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)). In

this case, the key question is whether the evidence in the light most favorable to Gholson, as the

party who prevailed in the circuit court, established probable cause that Gholson exercised

dominion and control over the controlled substances found in his mother’s home.

       Of course, possession need not be exclusive, and may be constructive rather than

physical. See Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d 799, 805-06 (1970). To

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establish constructive possession, “the Commonwealth must point to evidence of acts,

statements, or conduct of the accused or other facts or circumstances which tend to show that the

defendant was aware of both the presence and character of the substance and that it was subject

to his dominion and control.” Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740

(1984) (citing Susan Eckhart v. Commonwealth, 222 Va. 447, 450, 281 S.E.2d 853, 855 (1981))

(emphasis added). “Although mere proximity to drugs is insufficient to establish possession, it is

a circumstance which may be probative in determining whether an accused possessed such

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

Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882 (1992) (en banc)).

       Gholson’s proximity to the home where the search was to be conducted, standing alone,

is insufficient to establish that he exercised dominion and control over the contents of the home.

In Drew v. Commonwealth, 230 Va. 471, 338 S.E.2d 844 (1986), Drew, like Gholson, was in the

street near the dwelling when the warrant was executed. Drew was convicted of possession of

cocaine with intent to distribute. Id. at 472, 338 S.E.2d at 844. Our Supreme Court reversed,

finding this proximity to the dwelling insufficient where the Commonwealth had presented “no

evidence of statements or conduct which tend to show that Drew was aware of the presence of

cocaine in the dwelling.” Id. at 473, 338 S.E.2d at 845. Of important note, our Supreme Court

granted that the evidence showed Drew resided at the house, but that even his residency plus his

proximity was insufficient to prove constructive possession. Id. at 474, 338 S.E.2d at 846.

       Even in combination with his presence near the home, without more than appears in the

record before us, the additional fact that items attributable to Gholson were in the residence is

still insufficient to establish constructive possession of the drugs in this case. In Garland v.

Commonwealth, 225 Va. 182, 300 S.E.2d 783 (1983), our Supreme Court reversed a

constructive possession conviction based on the presence of clothing of Garland’s size (including

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shoes), an expired driver’s license, and, most notably, a lease for the residence, current at the

time of arrest, naming Garland as co-lessee. Id. at 183, 300 S.E.2d at 784. Our Supreme Court

found that “[t]he most that could be reasonably inferred from the lease was that Garland had

occupied the premises at some time.” Id. at 184, 300 S.E.2d at 785. However, in Shurbaji v.

Commonwealth, 18 Va. App. 415, 444 S.E.2d 549 (1994), we upheld a constructive possession

conviction where narcotics, clothing, utility bills, the defendant’s passport and wallet were all

found in close proximity in the master bedroom of the residence, which the defendant’s sister

testified the defendant often stayed in. See also Birdsong v. Commonwealth, 37 Va. App. 603,

609, 560 S.E.2d 468, 471 (2002) (relying upon evidence showing that appellant alone used the

room where drugs were found). The deciding factors in such cases, are an evaluation of whether

in combination, the location and proximity of the personal items to the location of the drugs

establishes a reasonable inference that a suspect has exercised dominion and control over them.

       In the present case, the record fails to reflect a number of facts that would suggest a

reasonable belief that Gholson exercised dominion and control over any drugs present in his

mother’s home at the time of his arrest such as whether that Gholson was present in the home

during the drug transaction that served as the basis for the search warrant; whether other drug

transactions occurred during the surveillance period during which Gholson made frequent trips in

and out of the home; or where in the home Gholson’s personal items were located in proximity

to where the drugs were found. Indeed, in the light most favorable to Gholson, we are bound by

the fact that he did not live in the home at the time of the search and had not done so since 2014.

Although a reasonable inference can be drawn that he was a frequent visitor and even that it was

a reasonable suspicion that Gholson was likely aware that drugs were present in the home, such

inference or suspicion is not sufficient to establish that Gholson constructively possessed the

entirety of the contents of his mother’s home including any controlled substances on the

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premises. As the appellant in this case, it is the Commonwealth’s responsibility to provide us

with a record sufficient to overcome the presumption of regularity and permit us to discern error

on the part of the circuit court. The dearth of specifics provided by the Commonwealth in this

record of the suppression hearing prevents us, as it apparently prevented the circuit court, from

determining any linkage beyond a presumption of guilt by familial association between Gholson

and the narcotics found in his mother’s home.

        At the beginning of the suppression hearing in this case, Gholson’s counsel asserted that

the parties have stipulated to “what the facts are that will make things a little bit shorter so that

[the circuit court] can decide what would be suppressed or not suppressed based on where things

are found.” The prosecutor did not challenge or dispute the representation and presented no

evidence regarding details of where the items the Commonwealth relies on to establish that

Gholson exercised dominion and control over the drugs—except that they were all found within

the home where Gholson visited, and which contained items attributable to him. The only

mention of the location of the narcotics came during testimony, when the Commonwealth asked

a police detective whether the audio statements made by Gholson after his arrest indicate that he

knew drugs were on the kitchen table. While any inference from this post-arrest statement

comes too late to establish probable cause for his arrest, we note that the presence of drugs in a

common area, such as a kitchen, does not indicate that Gholson exercised dominion and control

over them. If the drugs were found atop Gholson’s mail on the kitchen table, the

Commonwealth’s argument that the probable cause standard is met would be more meritorious,

but the record before us provides no basis for distinguishing Drew and Garland.

        Neither do the additional factors the Commonwealth lists on brief change the calculus.

Gholson’s claimed ownership of the shoes and the moped, suffer from the same locus infirmities

in the record as Gholson’s mail and the articles found in Garland. Inferring dominion and

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control over all the property in the house from the articles the Commonwealth relies on here

without more context than this record provides would contradict both case law and common

sense. The Commonwealth characterizes Gholson running towards the house as suspicious

conduct, apparently under the theory that it shows Gholson was aware of what was occurring in

the house and rushed to warn the occupants. Aside from the obvious fact that awareness of the

presence of drugs does not equate to an exercise of dominion and control, a consequence of the

Commonwealth’s argument is that Gholson must have been rushing to create the (legally

insufficient) proximity to drugs he allegedly knew were present inside the residence. Finally, the

Commonwealth turns to Gholson’s familial relationship with his mother and brother as evidence

supporting probable cause. No published authority is cited by the Commonwealth in support of

its implied proposition that probable cause flows from visiting the sins of the mother and the

brother on the son, and we decline to recognize a concept of “probable cause by association” as

sufficient for an arrest.

                                       III. CONCLUSION

        While there is suspicion aplenty suggesting that Gholson was aware of the criminal

activities of his mother and brother, the record before us is devoid of sufficient evidence to

establish probable cause that Gholson ever possessed the drugs found in the home of his mother

and brother, therefore we cannot say that the circuit court’s decision to suppress the evidence

was plainly wrong, and the judgment of that court is therefore affirmed.

                                                                                          Affirmed.




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