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Curley v. Commonwealth

Supreme Court of Virginia

July 26, 2018

TYSON KENNETH CURLEY
v.
COMMONWEALTH OF VIRGINIA

          FROM THE COURT OF APPEALS OF VIRGINIA

          OPINION

          ELIZABETH A. MCCLANAHAN JUDGE.

         Tyson Kenneth Curley appeals the decision of the Court of Appeals of Virginia rejecting his challenge to the trial court's denial of his motion to suppress and upholding his convictions for multiple drug and firearm related offenses. Curley argues that the trial court should have suppressed the evidence of his guilt because it was obtained during an unlawful search of his vehicle. We conclude that probable cause existed for the search and thus affirm his convictions.

         I.

         On appeal from a denial of a suppression motion, we view "the facts in the light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences. This standard requires us to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Evans v. Commonwealth, 290 Va. 277, 280, 776 S.E.2d 760, 761 (2015) (citations and internal quotation marks omitted).

         So viewed, the evidence presented at Curley's suppression hearing showed the following. Investigative Officer H. S. Wyatt of the Pittsylvania County Sheriff's Office conducted a traffic stop of a vehicle driven by Curley for failure to display a front Virginia license plate. Exiting his vehicle, Officer Wyatt observed Curley, the sole occupant of the vehicle, leaning over the passenger seat. As he approached, Officer Wyatt also saw a backpack in the front passenger seat of Curley's vehicle.

         When Officer Wyatt asked Curley for his driver's license, Curley said it was located inside the backpack. Curley then took approximately thirty seconds to retrieve it. During that time, Curley was "bent all the way" over the backpack "with his chest to the top of the bag," which blocked Officer Wyatt's view of the backpack's contents. As Curley handed over his driver's license, he appeared very nervous, his hand was shaking and he was breathing heavily. Due to Curley's movements, Officer Wyatt became concerned about the possibility of weapons in Curley's vehicle and instructed Curley to place his hands on the steering wheel.

         At that time, Investigative Officer J. L. Owens of the Pittsylvania County Sheriff's Office arrived to provide assistance to Officer Wyatt. After Officer Wyatt shared the details of his encounter with Curley, Officer Owens asked Curley to exit the vehicle for the officers' safety. Officer Owens then asked for consent to search Curley's vehicle, which Curley refused. When Officer Owens asked for consent to search Curley's person, Curley responded that he did not have anything illegal on him, but gave consent to be searched. During this encounter, Officer Owens observed that Curley appeared "overly nervous" and "fidgety."

         In searching Curley's person, Officer Owens recovered a digital scale from Curley's right rear pants pocket. Upon inspection, Officer Owens observed "a white residue on the part of the scale where it would actually be used to weigh items." Based on his training and experience as an expert in the field of narcotics investigations, Officer Owens believed the white powder on the scale was cocaine residue.[1] Officer Owens further concluded that Curley's possession of a digital scale with white residue on it was "very consistent" with drug distribution and inconsistent with personal use. He also concluded that the fact that Curley was not in possession of a smoking device was "very inconsistent" with personal use.

         Based on Curley's furtive movements, nervous demeanor and possession of a digital scale containing suspected cocaine residue, Officer Owens conducted a search of Curley's vehicle. During this search, Officer Owens found a bag under the driver's seat containing three individually wrapped "rocks" of cocaine. Near the front passenger seat, Officer Owens also found two glass jars, each containing small amounts of marijuana, and some plastic baggies. He also found a Glock 19 nine millimeter handgun in the same location. Officer Owens then later recovered $369 in cash consisting mostly of twenty dollar bills from inside Curley's sock during a second search of his person, which, according to Officer Owens, was consistent with cocaine distribution.

         Curley argued in support of his motion to suppress the contraband discovered during the warrantless search of his vehicle that the police lacked probable cause to conduct the search, thereby violating his Fourth Amendment rights. The trial court denied the motion, concluding that probable cause did exist. This ruling was expressly based on the above-described evidence of Curley's furtive movements, nervous demeanor and possession of the digital scale containing suspected cocaine residue.[2]

         Preserving the right to appeal this denial of his suppression motion, Curley entered a conditional guilty plea on the charges of possession with intent to distribute cocaine, possession of a firearm by a convicted felon, possession of a firearm while in possession of cocaine with intent to distribute, and possession of marijuana.[3] The trial court accepted the plea and subsequently entered an order of conviction on each of those charges.

         Curley appealed the adverse ruling on his suppression motion to the Court of Appeals. A judge of the Court of Appeals denied his petition for appeal in an unpublished per curiam order. Curley v. Commonwealth, Record No. 0632-16-3 (September 7, 2016). In the recitation of the facts presented as support for the denial of the petition on the issue of probable cause, the order mistakenly included the discovery of the cash on Curley's person-as that occurred after the search of his vehicle and thus should not have been considered. Curley's petition was then denied by an unpublished order of a three-judge panel of the Court of Appeals for the reasons stated ...


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