FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Mary Jane Hall, Judge
Daymen Robinson for appellant.
Susan Baumgartner, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Judges Decker, AtLee and Senior Judge Frank Argued at Norfolk, Virginia
MARLA GRAFF DECKER JUDGE.
Lashant L. White appeals his convictions for possession of heroin with intent to distribute, third or subsequent offense, in violation of Code § 18.2-248 and possession of marijuana in violation of Code § 18.2-250.1. On appeal, he contends that the searches of his person and bag were unreasonable under the Fourth Amendment of the United States Constitution. As a result, he argues that the trial court erred in denying his motion to suppress the evidence found during those searches. We hold that the evidence, viewed under the proper standard, supports the determination that the initial encounter and search of the appellant's person were reasonable. We further conclude, however, that the search of the bag was unreasonable and the admission of evidence found in the bag was not harmless. Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion if the Commonwealth be so advised.
At about 11:00 p.m. on October 18, 2013, Investigator Leldon Sapp of the Norfolk Police Department received an anonymous telephone complaint of possible drug activity at a particular motel in the city. Sapp and Investigator Glenn Gardiola, along with a third officer, Investigator McCarthy, drove to the motel, arriving sometime before midnight. All three officers were in plain clothes and wore vests marked "Police." Sapp and Gardiola were eighteen-year veterans of the department. Both worked for the vice and narcotics division. Sapp had been employed in that capacity for four years, and Gardiola for nine years. Neither investigator found the report of drug activity at the motel surprising, as it was "a known drug motel and vice motel." Both officers had made prior drug arrests at the motel, and Gardiola knew that subjects in previous narcotics operations had named the motel as "their area of choice . . . [for] meeting and making these transactions."
The investigators arrived at the motel and saw the appellant standing outside. As they watched, a sedan pulled into the motel's parking lot and stopped beside him. The appellant spoke to the vehicle's driver and put his head and arms through the window. The investigators pulled their unmarked car up to the rear of the sedan and got out. As the appellant turned from the sedan toward the officers, he was holding money in one hand and a cell phone in the other hand. The officers did not see an exchange, but the encounter "looked to [Sapp] as if it was a drug transaction."
Investigator McCarthy approached the sedan and spoke to the driver through the passenger's side window. At the same time, Gardiola and Sapp interacted with the appellant on the driver's side of the sedan. While the appellant stood beside the driver's window, Gardiola positioned himself at the car's left rear. The appellant then walked closer to Gardiola and stood about an arm's length away "while [they] started [a] conversation." Gardiola asked the appellant "for permission to speak to him, " and the appellant "granted [Gardiola] permission." Sapp approached and stood next to Gardiola, although only Gardiola interacted with the appellant at that time. Gardiola told the appellant that they were "investigating suspected drug activity" at the motel and asked him for identification. Upon receiving the appellant's Virginia ID card, Gardiola wrote down the identifying information and returned the ID to the appellant. Gardiola "ran [the information] through dispatch" and learned that the appellant, who was forty-one years old, "was in the system but did not have any outstanding warrants."
Investigator Sapp then asked the appellant for consent to search his person, and the appellant agreed. Neither Gardiola nor Sapp drew his weapon, raised his voice, or threatened the appellant in any way. Instead, each used a "[v]ery conversational" and "calm tone of voice." Having received the appellant's consent to search, Investigator Sapp started to pat him down. When Sapp reached the appellant's left ankle, he felt what he described as "kind of a powdery substance." Based on "[his] training and experience, " Sapp believed it "was either cocaine or heroin." He indicated that it was "not unusual" to find contraband in people's socks and that he had found drugs secreted there during searches of at least ten previous suspects. Although he had also found items in people's socks that were not drugs, those items felt hard rather than "soft" and "powdery." As Sapp attempted to remove the powdery item from the appellant's sock, the appellant used his hand to interfere with those efforts, "fighting" to keep Sapp from retrieving the item and "attempt[ing] to flee the scene." The investigator testified, based on these facts, that he believed the appellant's sock contained drugs.
Gardiola and Sapp subdued the appellant and handcuffed him. Sapp retrieved the item, which was a baggie containing four smaller baggies of suspected heroin and marijuana. Additional items recovered in a search of the appellant's person were $644 in cash and a second cell phone. After the search, the appellant was detained outside the motel.
Once in custody, the appellant asked the officers to go to a particular room in the motel and tell "his girlfriend Tanya." Sapp went to the room and told Tanya what had happened. He then asked her for permission to search the motel room. She agreed and permitted him to search. Sapp did not check to see who had rented the room. He merely "assumed" that Tanya was "the lessee" because she "seemed to have control" of it. Sapp saw a bag on a bed in the room. Before he opened the bag, Tanya told him that the bag belonged to the appellant. Inside the bag, which Sapp described as a "gray plastic bag, " he found a "digital scale, " a box of plastic sandwich bags, and a Ziploc bag containing about 200 empty capsules.
The appellant moved to suppress the evidence found on his person and in the bag in the motel room. After hearing evidence and argument, the trial court took the matter under advisement and later denied the motion.
At the appellant's subsequent bench trial, Investigator Sapp testified as an expert. He said that, considering only the items recovered from the appellant's person, revealed by testing to include four grams of heroin packaged in three bags of different weights, the evidence was inconsistent with possession for personal use. Sapp also observed that the appellant had different denominations of money in different pants pockets and that this, along with his possession of two cell phones rather than one, was indicative of distribution of drugs.
Sapp testified separately about the bag recovered from the motel room, stating that the items inside were paraphernalia used for distribution. He said that the digital scale found in the bag would be used to weigh the drugs and that the sandwich bags and capsules would be used to "break down stuff . . . and double [one's] money." Finally, Sapp explained that users of drugs typically have "some[thing] . . . on them . . . to use [the drugs] with" and that a "big time user is going to use it through syringes." No such items were found on the appellant or in the bag.
The trial court found the evidence sufficient to convict the appellant of possession of heroin with intent to distribute, third or subsequent offense. The court stated that it had considered "the combination . . . of all the various factors" in concluding "that the drugs that were recovered and the various other indicia of distribution . . . indicated that the amount of heroin [the appellant] had on his person that day" proved an intent to distribute. The court also convicted him of possession of marijuana. It subsequently sentenced the appellant to twenty years, with ten years suspended, for the heroin conviction and thirty days, with thirty days suspended, for the marijuana conviction.
The appellant challenges the trial court's denial of his motion to suppress evidence obtained in the searches of his person and bag. The Fourth Amendment protects people from unreasonable searches and seizures. E.g., Jones v. Commonwealth, 279 Va. 521, 527, 690 S.E.2d 95, 99 (2010). Whether a warrantless search or seizure violated the Fourth Amendment presents a mixed question of law and fact. Id. The appellate court views the evidence in the light most favorable to the prevailing party, granting to the evidence all reasonable inferences fairly deducible from it. Riner v. Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004). We are "bound by the trial court's findings of historical fact unless 'plainly wrong'" and "give due weight to the inferences drawn from those facts" by the trial judge and law enforcement. McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, ...