                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Frank, Humphreys and Chafin
UNPUBLISHED


              Argued at Chesapeake, Virginia


              JAMES LAMONT BALLARD
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0917-13-1                                    JUDGE ROBERT P. FRANK
                                                                                  APRIL 1, 2014
              COMMONWEALTH OF VIRGINIA


                             FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                                          Randolph T. West, Judge Designate

                               Jessica E.B. Crossett, Assistant Public Defender (Robert Moody, IV,
                               Deputy Public Defender, on brief), for appellant.

                               Aaron J. Campbell, Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief), for appellee.


                     James Lamont Ballard, appellant, was convicted in a bench trial of one count of possession

              of cocaine, in violation of Code § 18.2-250 and one count of possession of marijuana, in violation of

              Code § 18.2-250.1. On appeal, he contends the trial court erred in denying his motion to suppress,

              challenging the court’s finding that the police officer had probable cause to search his person. He

              also asserts the trial court erred in sentencing him for a second or subsequent offense of possession

              of marijuana when the summons only charged him with a first offense. For the reasons stated, we

              affirm the convictions but remand for resentencing on the charge of possession of marijuana, first

              offense.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                            BACKGROUND

        The facts are not in controversy.

        On July 12, 2012, Newport News Police Detectives Norris and Kingsley stopped a vehicle

for failing to come to a complete stop at a red light before making a turn.1 Appellant was the driver

of the vehicle, and there was one passenger in the front seat. Detective Norris requested a narcotics

detection dog, and Detective Huling arrived with his narcotics K-9 within a few minutes.

        While both occupants remained seated in the vehicle, the dog circled the vehicle and

signaled a positive alert at the bottom seal of the driver’s door. Huling testified that a positive alert

by his dog does not necessarily mean narcotics are present in the vehicle at that time. He explained

that there could be a residual odor, and there is no way to know whether the dog alerts to an odor at

nose level or higher up in the vehicle. The dog simply alerts to odor emanating from the vehicle.

        Because of the alert, both occupants were removed from the vehicle and detained before

police searched the vehicle. The dog was not instructed to sniff appellant once he was removed

from the vehicle. Norris advised both occupants of their rights pursuant to Miranda v. Arizona,

384 U.S. 436 (1966), and asked whether there were any narcotics in the vehicle. Both appellant

and his passenger responded in the negative. When asked if there was anything in the vehicle the

officer needed to know about, appellant said there was not. When asked if there was any marijuana

in the vehicle, both stated there was not. When asked if they had smoked marijuana, both appellant

and the passenger said they had smoked earlier. Appellant indicated he had smoked marijuana “just

a little bit ago.”

        While Detective Norris was speaking with the occupants, Kingsley searched the vehicle and

discovered one item he suspected to be a marijuana seed. This item was located underneath and


        1
         Appellant does not contest the validity of the stop, the detention of the occupants of the
vehicle, or the search of the vehicle.

                                                   -2-
toward the front of the driver’s seat and was not visible to Kinglsey until he moved the seat forward.

No other contraband or drug-related items were found in the vehicle.

       Norris proceeded to search appellant by reaching into his front left pocket. After Norris

placed his hands on appellant and as he was searching appellant’s pocket, appellant told Norris he

had a small amount of marijuana in his pocket. Norris retrieved marijuana and cocaine from that

pocket. Appellant did not consent to the search of his person nor was the search authorized by a

search warrant.

       The trial court denied appellant’s motion to suppress, finding the discovery of the marijuana

seed and appellant’s statement that both he and the passenger recently smoked marijuana

established probable cause to search appellant.

       Appellant entered conditional pleas of guilty pursuant to Code § 19.2-254. After accepting

the pleas, the trial court found appellant guilty of both charges. The court sentenced appellant to

twelve months in jail, with nine months suspended, on the marijuana conviction.

       This appeal follows.

                                             ANALYSIS

       We first determine whether the police had probable cause to search appellant’s person.

       “On appeal from a denial of a suppression motion, we must review the evidence in the

light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.”

Slayton v. Commonwealth, 41 Va. App. 101, 103, 582 S.E.2d 448, 449 (2003).

                  An appellant’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 [violated] the Fourth Amendment.”

Wilson v. Commonwealth, 45 Va. App. 193, 202-03, 609 S.E.2d 612, 616 (2005) (alteration in

original) (quoting Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002)).
                                                  -3-
       On appeal, “we defer to the trial court’s findings of ‘historical fact’ and give ‘due weight

to the inferences drawn from those facts by resident judges and local law enforcement officers.’”

Barkley v. Commonwealth, 39 Va. App. 682, 690, 576 S.E.2d 234, 238 (2003) (quoting Davis v.

Commonwealth, 37 Va. App. 421, 429, 559 S.E.2d 374, 378 (2002)). “While ‘the

Commonwealth has the burden of proving the legitimacy of a warrantless search and seizure,’

the defendant must show that the trial court’s denial of his suppression motion, when the

evidence is considered in the light most favorable to the prosecution, was reversible error.”

Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464 (2003) (quoting Simmons

v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989) (en banc)).

       Probable cause is established by facts and circumstances which would lead a prudent

person to believe that the suspect had committed or was committing an offense. Beck v. Ohio,

379 U.S. 89, 91 (1964).

               The legal standard of probable cause, as the term suggests, relates
               to probabilities that are based upon the factual and practical
               considerations in everyday life as perceived by reasonable and
               prudent persons. The presence or absence of probable cause is not
               to be examined from the perspective of a legal technician. Rather,
               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 than an offense has been or is being committed.
               Draper v. United States, 358 U.S. 307, 313 (1959). In order to
               ascertain whether probable cause exists, courts will focus upon
               “what the totality of the circumstances meant to police officers
               trained in analyzing the observed conduct for purposes of crime
               control.” Hollis v. Commonwealth, 216 Va. 874, 877, 223 S.E.2d
               887, 889 (1976).

Taylor v. Commonwealth, 222 Va. 816, 820-21, 284 S.E.2d 833, 836 (1981) (other citation

omitted); see also Maryland v. Pringle, 540 U.S. 366, 371 (2003) (“The probable-cause standard

is incapable of precise definition or quantification into percentages because it deals with

probabilities and depends on the totality of the circumstances.”).


                                                -4-
       In claiming that the police lacked probable cause to search his person, appellant premises

his entire argument on Whitehead v. Commonwealth, 278 Va. 300, 683 S.E.2d 299 (2009).

There, after a valid traffic stop, a narcotics dog alerted to drugs in a vehicle occupied by

Whitehead and three others. The officer searched the vehicle and found no contraband. No one

challenged whether probable cause existed to search the vehicle. Id. at 306, 683 S.E.2d at 301.

       After finding no drugs in the vehicle, police searched each occupant. They found no

contraband on the first three occupants searched. A search of Whitehead, the fourth to be

searched, revealed heroin. Id. at 304, 683 S.E.2d at 300. The issue before the Supreme Court of

Virginia was whether there was probable cause to search Whitehead. The Supreme Court

rejected the Commonwealth’s argument that the dog’s alert, coupled with no drugs being found

on the first three occupants, created probable cause to search Whitehead through the process of

elimination. The Court explained that the positive alert by the dog, and the subsequent fruitless

searches of the vehicle and three of its occupants created only a “strong suspicion” that

contraband was present on Whitehead’s person. Id. at 314, 683 S.E.2d at 306. Thus, Whitehead

makes clear that an alert by a drug dog, without any individualized suspicion, is insufficient to

show probable cause.

       Unlike Whitehead, here there was individualized suspicion that appellant possessed

drugs. The dog alerted to the driver’s door, where appellant had been sitting. Further, a single

marijuana seed was found under the driver’s seat.2 Appellant admitted smoking marijuana “just

a little bit ago.” Thus, appellant admitted committing a misdemeanor.3 By its own terms,

Whitehead distinguished itself from the instant case. In finding no probable cause to search in


       2
         Appellant does not challenge that a marijuana seed is contraband pursuant to the
definition of marijuana contained in Code § 54.1-3401.
       3
         Code § 18.2-250.1 prohibits the possession of marijuana and provides a penalty of up to
thirty days in jail and/or a $500 fine.
                                              -5-
Whitehead, the Court stated, “There is also no evidence indicating Whitehead individually was

committing, had committed or was about to commit a criminal offense.” Id. at 314, 683 S.E.2d

at 306. The facts in this case show otherwise. The dog’s alert, the discovery of a seed of

marijuana under appellant’s seat, and appellant’s statement that he recently smoked marijuana

created a “fair probability” that appellant committed a crime and that police would find evidence

of a crime on appellant’s person. Thus, we find the trial court properly found the officers had

probable cause to search appellant’s person.

       Appellant next contends the trial court erred in sentencing him to a term that exceeds the

statutory maximum for first offense possession of marijuana pursuant to Code § 18.2-250.1.

Appellant notes that while he did not raise this objection at trial, a miscarriage of justice occurred

and Rule 5A:18 does not bar our review of this issue. The Commonwealth concedes error and

further concedes the “ends of justice” exception to Rule 5A:18 allows us to address this

assignment of error.4

       Under Virginia law, a sentencing order is void ab initio if “‘the character of the judgment

was not such as the [C]ourt had the power to render.’” Rawls v. Commonwealth, 278 Va. 213,

221, 683 S.E.2d 544, 549 (2009) (quoting Anthony v. Kasey, 83 Va. 338, 340, 5 S.E. 176, 177

(1887) (alteration in original)). In Rawls, the parties mistakenly believed that amendments to a

criminal statute were in effect “and consequently the jury was incorrectly instructed that it could

impose a specific term of imprisonment of not more than 40 years for the murder conviction.”

Id. at 215, 683 S.E.2d at 546. The statutory maximum actually was twenty years of




       4
        “Generally speaking, ‘we are not bound by concessions of law by the parties.’”
Doulgerakis v. Commonwealth, 61 Va. App. 417, 419, 737 S.E.2d 40, 41 (2013) (quoting Epps
v. Commonwealth, 47 Va. App. 687, 703, 626 S.E.2d 912, 919 (2006) (en banc)). Here,
however, we agree with the Commonwealth.

                                                -6-
incarceration. Id. The Rawls Court concluded that a sentence imposed in violation of a

prescribed statutory range of punishment is void ab initio. Id.

       “An order that is void ab initio is a ‘complete nullity’ that may be ‘impeached directly or

collaterally by all persons, anywhere, at any time, or in any manner.’” Collins v. Shepherd, 274

Va. 390, 402, 649 S.E.2d 672, 678 (2007) (quoting Singh v. Mooney, 261 Va. 48, 52, 541 S.E.2d

549, 551 (2001)). Because the sentencing order in this case is void ab initio, Rule 5A:18 does

not bar review of the sentencing.

       We conclude the trial court erred in imposing a sentence that exceeded the amount

prescribed by statute. ‘“Because the error could have affected only the sentence and because the

sentence was imposed by a trial court sitting without a jury, we may set aside that part of the

final judgment’ without remand for retrial.” Gordon v. Commonwealth, 61 Va. App. 682, 686,

739 S.E.2d 276, 278 (2013) (quoting Woodward v. Commonwealth, 16 Va. App. 672, 676, 432

S.E.2d 510, 513 (1993)). Thus, because this Court can only speculate as to the sentence the trial

court might impose for first offense possession of marijuana, using the correct statutory

sentencing range, we remand to the trial court for resentencing.

                                         CONCLUSION

       Finding the police had probable cause to search appellant’s person, we affirm his

convictions. We vacate the sentencing order, insofar as it pertains to the sentence imposed on

the possession of marijuana conviction, and remand for resentencing consistent with the penalty

range of Code § 18.2-250.1, first offense.

                                                                          Affirmed and remanded.




                                               -7-
