Commonwealth of Virginia v. Lorenzo Eugene Gholson ( 2018 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Malveaux and Senior Judge Annunziata
Argued by teleconference
UNPUBLISHED
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION* BY
v. Record No. 0555-18-1 JUDGE ROBERT J. HUMPHREYS
AUGUST 21, 2018
LORENZO EUGENE GHOLSON
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Gary A. Mills, Judge
Brittany A. Dunn-Pirio, Assistant Attorney General (Mark R.
Herring, Attorney General, on briefs), for appellant.
Artisha Todd Gregg (Rice, Paige, Pandya & Gregg, on brief), for
appellee.
The Commonwealth of Virginia (“the Commonwealth”) appeals the March 28, 2018
order of the Circuit Court of the City of Newport News (“circuit court”) granting Lorenzo
Eugene Gholson’s (“Gholson”) motion to suppress statements made, and evidence seized, on
October 30, 2015. The Commonwealth argues that the circuit court erred in suppressing the
evidence because there was sufficient probable cause to arrest Gholson for possession with intent
to distribute drugs seized from the residence at 1606 Ivy Avenue in the City of Newport News.
I. BACKGROUND
On October 30, 2015, the City of Newport News Police Department executed a valid
search warrant on 1606 Ivy Avenue in the city of Newport News. Gholson’s brother, Robert,
had sold marijuana to an informant at this address within the preceding forty-eight hours. Prior
to executing the warrant, police performed surveillance of the location for approximately thirty
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
to forty-five minutes. During this time, police observed an individual matching Gholson’s
description enter and leave the house several times. When police exited the vehicle to serve the
warrant and began walking towards the house, Gholson was across the street. Upon seeing
police, Gholson began moving rapidly towards the house. Police intercepted and detained
Gholson outside the house, and once the property was secure, brought Gholson inside. Police
located cocaine, heroin, and marijuana inside the residence. Police also found two letters
addressed to Gholson, one from a health care provider, which was undated, and one from a law
firm, dated in June, 2015. Police asked Gholson about a moped inside the house, which he
indicated was “ours.” Gholson also asked a detective who was standing on a pair of shoes to
“step off my shoes.” When subsequently asked whether the shoes were his, Gholson replied that
he didn’t know whose they were. Significantly, the record before us is largely silent with respect
to where in the home the drugs, marijuana, mail, shoes or moped were located.
Police arrested Gholson for possession with intent to distribute marijuana, cocaine, and
heroin in violation of Code § 18.2-248 and § 18.2-248.1 based on his constructive possession of
all the narcotics in the house. In a search incident to arrest, they found a sizable amount of
currency on his person. Gholson and Robert were then placed in the back of a police car which
was equipped with recording equipment. In speaking to Robert, Gholson made incriminating
statements indicating he was aware of drugs in the house.
At the suppression hearing, police testified that they had a history of encountering
Gholson at the house, having served previous search warrants on the house in 2011 and 2012,
finding Gholson present on both occasions. Police also testified that Gholson’s car was
frequently seen parked outside the house in 2014 and 2015. Cynthia Banks, whose daughter has
an eight-month-old child with Gholson, testified that Gholson has been living with her since
2014. The circuit court found that Gholson’s detention while the search was ongoing was
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proper, but that police lacked probable cause to arrest Gholson, and granted his motion to
suppress the money recovered from his person and his statements made in the police vehicle.
The circuit court explained that Gholson could have moved out of the house and that the mail,
moped, and shoes did not indicate he lived at the residence, noting the absence of items crucial in
similar cases, such as a birth certificate or government identification.
II. ANALYSIS
A. Standard of Review
“In an appeal by the Commonwealth of an order of the trial court suppressing evidence, the
evidence must be viewed in the light most favorable to the defendant and findings of fact are
entitled to a presumption of correctness unless they are plainly wrong or without evidence to
support them.” Commonwealth v. Peterson, 15 Va. App. 486, 487, 424 S.E.2d 722, 723 (1992)
(citing Code § 8.01-680; Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48
(1991)).
A defendant’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 meets the requirements of the Fourth
Amendment.
Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002) (internal citations
omitted).
B. Whether There Was Sufficient Probable Cause to Arrest Gholson
“[P]robable 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 that an offense has been or is being committed”
by the person arrested. Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E.2d 833, 836
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(1981). “In determining whether a police officer had probable cause to arrest a defendant, a trial
court must consider the totality of the facts and circumstances presented and what those facts and
circumstances reasonably meant to a trained police officer.” Jones v. Commonwealth, 279 Va.
52, 59, 688 S.E.2d 269, 273 (2010).
The Commonwealth argues that the circuit court erred by limiting its probable cause
analysis to the question of Gholson’s residency. They argue that the totality of the circumstances
includes additional factors which establish constructive possession. First, that on October 30,
2015, police observed a man matching Gholson’s description enter and exit the residence several
times in the forty-five-minute span before the warrant was executed. Second, that Gholson ran
towards the house when police exited their vehicles, which, the Commonwealth argues, shows
that Gholson was attempting to conceal something within the house. Third, that Gholson’s
statements regarding the shoes and moped constituted him “assert[ing] a possessory interest in at
least two items in the house” and that it would therefore be reasonable to infer that Gholson
possessed other items in the house. Finally, the Commonwealth points to Gholson’s relationship
with the other occupants of the house, his mother and his brother, as a factor for consideration.
At oral argument, the Commonwealth characterized the probable cause standard as “a
low bar.” While probable cause is certainly a lesser standard than the burden of proof required
for a conviction, it nevertheless requires “a reasonable ground for belief” that a suspect is
involved in criminal activity (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)). In
this case, the key question is whether the evidence in the light most favorable to Gholson, as the
party who prevailed in the circuit court, established probable cause that Gholson exercised
dominion and control over the controlled substances found in his mother’s home.
Of course, possession need not be exclusive, and may be constructive rather than
physical. See Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d 799, 805-06 (1970). To
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establish constructive possession, “the Commonwealth must point to 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 character of the substance and that it was subject
to his dominion and control.” Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740
(1984) (citing Susan Eckhart v. Commonwealth, 222 Va. 447, 450, 281 S.E.2d 853, 855 (1981))
(emphasis added). “Although mere proximity to drugs is insufficient to establish possession, it is
a circumstance which may be probative in determining whether an accused possessed such
drugs.” Glasco v. Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150, 155 (1998) (citing
Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882 (1992) (en banc)).
Gholson’s proximity to the home where the search was to be conducted, standing alone,
is insufficient to establish that he exercised dominion and control over the contents of the home.
In Drew v. Commonwealth, 230 Va. 471, 338 S.E.2d 844 (1986), Drew, like Gholson, was in the
street near the dwelling when the warrant was executed. Drew was convicted of possession of
cocaine with intent to distribute. Id. at 472, 338 S.E.2d at 844. Our Supreme Court reversed,
finding this proximity to the dwelling insufficient where the Commonwealth had presented “no
evidence of statements or conduct which tend to show that Drew was aware of the presence of
cocaine in the dwelling.” Id. at 473, 338 S.E.2d at 845. Of important note, our Supreme Court
granted that the evidence showed Drew resided at the house, but that even his residency plus his
proximity was insufficient to prove constructive possession. Id. at 474, 338 S.E.2d at 846.
Even in combination with his presence near the home, without more than appears in the
record before us, the additional fact that items attributable to Gholson were in the residence is
still insufficient to establish constructive possession of the drugs in this case. In Garland v.
Commonwealth, 225 Va. 182, 300 S.E.2d 783 (1983), our Supreme Court reversed a
constructive possession conviction based on the presence of clothing of Garland’s size (including
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shoes), an expired driver’s license, and, most notably, a lease for the residence, current at the
time of arrest, naming Garland as co-lessee. Id. at 183, 300 S.E.2d at 784. Our Supreme Court
found that “[t]he most that could be reasonably inferred from the lease was that Garland had
occupied the premises at some time.” Id. at 184, 300 S.E.2d at 785. However, in Shurbaji v.
Commonwealth, 18 Va. App. 415, 444 S.E.2d 549 (1994), we upheld a constructive possession
conviction where narcotics, clothing, utility bills, the defendant’s passport and wallet were all
found in close proximity in the master bedroom of the residence, which the defendant’s sister
testified the defendant often stayed in. See also Birdsong v. Commonwealth, 37 Va. App. 603,
609, 560 S.E.2d 468, 471 (2002) (relying upon evidence showing that appellant alone used the
room where drugs were found). The deciding factors in such cases, are an evaluation of whether
in combination, the location and proximity of the personal items to the location of the drugs
establishes a reasonable inference that a suspect has exercised dominion and control over them.
In the present case, the record fails to reflect a number of facts that would suggest a
reasonable belief that Gholson exercised dominion and control over any drugs present in his
mother’s home at the time of his arrest such as whether that Gholson was present in the home
during the drug transaction that served as the basis for the search warrant; whether other drug
transactions occurred during the surveillance period during which Gholson made frequent trips in
and out of the home; or where in the home Gholson’s personal items were located in proximity
to where the drugs were found. Indeed, in the light most favorable to Gholson, we are bound by
the fact that he did not live in the home at the time of the search and had not done so since 2014.
Although a reasonable inference can be drawn that he was a frequent visitor and even that it was
a reasonable suspicion that Gholson was likely aware that drugs were present in the home, such
inference or suspicion is not sufficient to establish that Gholson constructively possessed the
entirety of the contents of his mother’s home including any controlled substances on the
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premises. As the appellant in this case, it is the Commonwealth’s responsibility to provide us
with a record sufficient to overcome the presumption of regularity and permit us to discern error
on the part of the circuit court. The dearth of specifics provided by the Commonwealth in this
record of the suppression hearing prevents us, as it apparently prevented the circuit court, from
determining any linkage beyond a presumption of guilt by familial association between Gholson
and the narcotics found in his mother’s home.
At the beginning of the suppression hearing in this case, Gholson’s counsel asserted that
the parties have stipulated to “what the facts are that will make things a little bit shorter so that
[the circuit court] can decide what would be suppressed or not suppressed based on where things
are found.” The prosecutor did not challenge or dispute the representation and presented no
evidence regarding details of where the items the Commonwealth relies on to establish that
Gholson exercised dominion and control over the drugs—except that they were all found within
the home where Gholson visited, and which contained items attributable to him. The only
mention of the location of the narcotics came during testimony, when the Commonwealth asked
a police detective whether the audio statements made by Gholson after his arrest indicate that he
knew drugs were on the kitchen table. While any inference from this post-arrest statement
comes too late to establish probable cause for his arrest, we note that the presence of drugs in a
common area, such as a kitchen, does not indicate that Gholson exercised dominion and control
over them. If the drugs were found atop Gholson’s mail on the kitchen table, the
Commonwealth’s argument that the probable cause standard is met would be more meritorious,
but the record before us provides no basis for distinguishing Drew and Garland.
Neither do the additional factors the Commonwealth lists on brief change the calculus.
Gholson’s claimed ownership of the shoes and the moped, suffer from the same locus infirmities
in the record as Gholson’s mail and the articles found in Garland. Inferring dominion and
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control over all the property in the house from the articles the Commonwealth relies on here
without more context than this record provides would contradict both case law and common
sense. The Commonwealth characterizes Gholson running towards the house as suspicious
conduct, apparently under the theory that it shows Gholson was aware of what was occurring in
the house and rushed to warn the occupants. Aside from the obvious fact that awareness of the
presence of drugs does not equate to an exercise of dominion and control, a consequence of the
Commonwealth’s argument is that Gholson must have been rushing to create the (legally
insufficient) proximity to drugs he allegedly knew were present inside the residence. Finally, the
Commonwealth turns to Gholson’s familial relationship with his mother and brother as evidence
supporting probable cause. No published authority is cited by the Commonwealth in support of
its implied proposition that probable cause flows from visiting the sins of the mother and the
brother on the son, and we decline to recognize a concept of “probable cause by association” as
sufficient for an arrest.
III. CONCLUSION
While there is suspicion aplenty suggesting that Gholson was aware of the criminal
activities of his mother and brother, the record before us is devoid of sufficient evidence to
establish probable cause that Gholson ever possessed the drugs found in the home of his mother
and brother, therefore we cannot say that the circuit court’s decision to suppress the evidence
was plainly wrong, and the judgment of that court is therefore affirmed.
Affirmed.
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