                                       COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Haley and Alston
Argued at Alexandria, Virginia


VAN I. WOMACK
                                                                   MEMORANDUM OPINION * BY
v.         Record No. 2538-07-4                                   JUDGE ROBERT J. HUMPHREYS
                                                                          JUNE 9, 2009
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                                      John E. Kloch, Judge

                     Kevin T. Gaynor, Assistant Public Defender (Office of the Public
                     Defender, on brief), for appellant.

                     Erin M. Kulpa, Assistant Attorney General (Robert F. McDonnell,
                     Attorney General, on brief), for appellee.


           Van I. Womack (“Womack”) appeals his conviction for possession of cocaine with the

intent to distribute, in violation of Code § 18.2-248. Womack argues that the trial court erred by

refusing to suppress the cocaine discovered on his person during a search.

           In denying Womack’s motion, the trial court gave three separate reasons for doing so,

stating:

                     I think first of all any motion to suppress has to be made seven
                     days prior to trial, to give the Commonwealth some right of appeal.
                     That was not done.

                     Second of all, the evidence has already been admitted, so it is not
                     timely.

                     Thirdly, as counsel points out, I believe there is probable cause that
                     this individual possessed marijuana, a crime that was at the very



           *
               Pursuant to Code § 17.1-413, this opinion is not designated for publication.
               least a misdemeanor occurring in the officer’s presence, so he has
               probable cause to search.

               For all those reasons, the motion will be denied.

On appeal, Womack argues exclusively that the trial court erred in admitting the cocaine because

the officers did not have probable cause to search him. Womack does not argue that the trial

court erred by admitting the cocaine on the grounds that Womack failed to timely file a motion

to suppress seven days before trial or that Womack’s objection was untimely given that the

evidence had already been admitted.

       “[I]n ‘situations in which there is one or more alternative holdings on an issue,’ the

appellant’s ‘failure to address one of the holdings results in a waiver of any claim of error with

respect to the court’s decision on that issue.’” Johnson v. Commonwealth, 45 Va. App. 113,

116, 609 S.E.2d 58, 60 (2005) (quoting United States v. Hatchett, 245 F.3d 625, 644-45 (7th Cir.

2001)). “[O]therwise, ‘an appellant could avoid the adverse effect of a separate and independent

basis for the judgment by ignoring it and leaving it unchallenged.’” Id. at 116-17, 609 S.E.2d at

60 (quoting San Antonio Press v. Custom Bilt Machinery, 852 S.W.2d 64, 65 (Tex. App. 1993)).

       Womack’s appeal addresses only one of the three alternative reasons that the trial court

gave in denying Womack’s motion to suppress. So long as one of the two alternatives “would

legally constitute a freestanding basis in support of the trial court’s decision,” we are unable to

address the merits of Womack’s claim. Id. at 117, 609 S.E.2d at 60.

       The trial court’s first independent basis for overruling Womack’s motion to suppress is

that the motion was not timely because Womack was required to file that motion seven days

before trial. Code § 19.2-266.2 provides in pertinent part that:

               Defense motions or objections seeking (i) suppression of evidence
               on the grounds such evidence was obtained in violation of the
               provisions of the Fourth . . . Amendment[] to the Constitution of
               the United States . . . shall be raised by motion or objection, in
               writing, before trial. The motions or objections shall be filed and
                                                -2-
               notice given to opposing counsel not later than seven days 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. 1

       In Upchurch V. Commonwealth, 31 Va. App. 48, 521 S.E.2d 290 (1999), this Court

addressed a situation almost identical to the situation in this case. In that case, Upchurch

attempted to make a mid-trial motion to suppress during testimony being given by a police

officer. After listening to the officer’s testimony, Upchurch argued that the officer did not have

probable cause to arrest him. “The sole reason given by Upchurch for failure to file a pretrial

suppression motion was that he was unaware of the potential Fourth Amendment issue until [the

officer] testified.” Id. at 51-52, 521 S.E.2d at 292. Pursuant to Code § 19.2-266.2, the trial court

refused to consider Upchurch’s mid-trial motion. We affirmed, holding,

               If the defendant does not exercise due diligence to discover
               relevant facts before trial and has not been misled by the
               Commonwealth or its witnesses or otherwise prevented by the
               Commonwealth from discovering relevant facts, ignorance of a
               witness’ testimony, especially a witness who reasonably could be


       1
         In Commonwealth v. Ramey, 19 Va. App. 300, 450 S.E.2d 775 (1994), we explained
the public policy behind Code § 19.2-266.2:

               In order to protect a criminal defendant from being twice put in
               jeopardy for the same offense, the Commonwealth is prohibited
               from appealing a judgment in a criminal prosecution. However,
               this prohibition, if applied without exception, would deny review
               of erroneous trial court decisions suppressing evidence found to
               have been obtained in violation of the United States Constitution.
               These decisions involve significant constitutional protection and
               often determine the outcome of a criminal proceeding. Appellate
               review serves to enhance the uniformity and legitimacy of such
               decisions. Providing appellate review of these decisions, therefore,
               serves a “legitimate” governmental objective. Furthermore,
               because of its interlocutory nature, it does so while still preserving
               a criminal defendant’s protection against being twice placed in
               jeopardy.

Id. at 303, 450 S.E.2d at 776-77 (citations omitted).
                                                -3-
               expected to testify, does not constitute good cause for excusing the
               defendant from the requirements of Code § 19.2-266.2.

Id. at 52, 521 S.E.2d at 292. Specifically, we noted, “Counsel did not interview the officer prior

to trial. Counsel does not maintain that he was misled in any way by representations of the

Commonwealth. Additionally, the information discovered by counsel in [the officer’s]

testimony was also available from the defendant.” Id. (emphasis added).

        Here, Womack admittedly failed to file a motion to suppress prior to trial. When he

ultimately made the motion, Womack claimed that he was not aware of the potential Fourth

Amendment issue until after Investigator Kochis testified. Womack does not now, and did not at

trial, argue that he was “misled by the Commonwealth or its witnesses or otherwise prevented by

the Commonwealth from discovering relevant facts.” Id. Thus, the trial court could have

properly denied Womack’s objection on that ground alone. Because Code § 19.2-266.2 provided

the trial court with “a freestanding basis” for denying Womack’s motion, we need not, and will

not address the merits of Womack’s claim. 2 Johnson, 45 Va. App. at 117, 609 S.E.2d at 60.

        For the foregoing reasons, we hold that Womack failed to preserve his claim that Officer

Kochis’s search violated his Fourth Amendment rights. Therefore, we affirm the decision of the

trial court.

                                                                                         Affirmed.




        2
         Likewise, because we hold that Johnson’s violation of Code § 19.2-266.2 was sufficient
to warrant the denial of his motion to suppress, we need not address the trial court’s additional
independent basis for denying Womack’s motion.
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