United States District Court, E.D. Virginia, Alexandria Division
ANTHONY J. TRENGA, District Judge.
Leon McNeil, a Virginia inmate proceeding pro has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction of possession of heroin following a bench trial in the Circuit Court for the City of Portsmouth. On May 21, 2014, respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief and exhibits. Petitioner was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K, and he has filed no reply. For the reasons that follow, respondent's Motion to Dismiss will be granted, and the petition will be dismissed, with prejudice.
On December 20, 2012, petitioner was convicted of possession of heroin. The facts underlying the conviction were described by the Court of Appeals of Virginia as follow:
On November 19, 2011, Nathan Jones saw an individual remove equipment from a car parked outside Lowe's and place it in a vehicle occupied by appellant. The individual, later identified as Michael Hoerl, entered the driver's side of appellant's vehicle, and the two of them drove away. Jones followed the vehicle, noted the license plate number, and notified the police.
Based on a police dispatch that two individuals had taken items from a car in the Lowe's parking lot, officers responded and stopped a vehicle matching Jones's description. A lot of tools' were visible in the back seat of the car. The officers detained Hoerl and appellant until Jones arrived at the scene. Upon Jones identifying them as the two men he had seen at the time of the larceny, police arrested them. Pursuant to the arrest, the officers searched appellant and discovered heroin in his pocket.
McNeil V. Commonwealth, R. No. 2336-12-1 (Va.App. Aug. 6, 2013), slip op. at 1-2; Resp. Ex. B. Petitioner received a sentence of three (3) years in prison with all three (3) years suspended, contingent upon his successful completion of the Portsmouth Circuit Court Drug Program. Resp. Ex. A.
Petitioner appealed his conviction to the Court of Appeals of Virginia, arguing that the trial court erred in denying his motion to suppress evidence obtained in violation of the Fourth Amendment. Resp. Ex. B. The Virginia court rejected that position on the following holding:
Noting that [the informant] Jones did not see him actively participating in the theft, appellant attacks the search on the ground that his arrest was not supported by probable cause. In determining whether probable cause existed, the test of constitutional validity is whether at the moment of arrest the arresting officer had knowledge of sufficient facts and circumstances to warrant a reasonable man in believing that an offense has been committed.' DePriest v. Commonwealth , 4 Va.App. 577, 583-84, 359 S.E.2d 540, 543 (1987)...
"[T]he probable-cause standard does not require that the officer's belief be more likely true than false." United States v. Humphries , 372 F.3d 653, 660 (4th Cir. 2004). "Probable cause relies on a flexible, common-sense standard' and does not demand any showing that such a belief be corrector more likely true than false.'" Slayton v. Commonwealth , 41 Va.App. 101, 106, 582 S.E.2d 448, 450 (2003) (quoting Texas v. Brown , 460 U.S. 730, 742 (1983)). "[I]t requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." Illinois v. Gates , 462 U.S. 213, 245 n. 13 (1983). Probable cause deals with probabilities that are not "technical" but are "the factual and practical considerations in every day life on which reasonable and prudent men, not legal technicians, act." Garza v. Commonwealth , 228 Va. 559, 564, 323 S.E.2d 127, 129 (1984).
Here, the officers had received information that two men were involved in a theft. The undisputed evidence at the suppression hearing was that appellant sat in a car while Hoerl loaded it v^th stolen equipment. The two of then left the parking lot together, and when they were stopped a short time later, a large number of tools were in plain view in the back of the car. Under such circumstances, the police could reasonably conclude that it was "likely" that appellant was aware of the stolen goods and jointly possessed them. "Constructive possession may be established by 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 the character of the substance and that it was subject to his dominion and control." Logan v. Commonwealth , 19 Va.App. 437, 444, 452 S.E.2d 364, 368-69 (1994)(en banc)...
Accordingly, as the evidence supported a rational belief that appellant possessed recently stolen goods, the arrest was lawfiil, and the trial court properly denied appellant's motion to suppress.
McNeil v. Commonwealth, supra, slip op. at 2-3; Resp. Ex. B.
Petitioner sought further review of the foregoing result by the Supreme Court of Virginia, but his petition for appeal was refused. McNeil v. Commonwealth, R. ...