Demetrius Lamone Larry v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Baker and Willis
Argued at Norfolk, Virginia
DEMETRIUS LAMONE LARRY
v. Record No. 2530-93-1 MEMORANDUM OPINION*
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA JUNE 6, 1995
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Morris B. Gutterman, Judge Designate
Bruce C. Sams (Sams & Hawkins, P.C., on brief),
for appellant.
Leah A. Darron, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Demetrius Lamone Larry (appellant) appeals from his bench
trial conviction by the Circuit Court of the City of Norfolk
(trial court) for possession of cocaine with intent to
distribute. Appellant contends that the trial court erroneously
refused to suppress cocaine found in appellant's motel room
during a warrantless search and that the evidence was
insufficient to establish an intent to distribute.
SUPPRESSION
Absent exigent circumstances, the threshold of one's home,
whether temporary or permanent, may not be crossed without a
warrant. See Payton v. New York, 445 U.S. 573, 590 (1990).
Whether the exclusionary rule should be applied to exclude
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*Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
evidence discovered as a result of a warrantless crossing must be
determined from an examination of the facts leading to the entry.
In making that determination at the trial level, the
Commonwealth has a heavy burden to justify the warrantless entry,
as all such entries are presumed to be unreasonable. Verez v.
Commonwealth, 230 Va. 405, 410, 337 S.E.2d 749, 752-53 (1985),
cert. denied, 497 U.S. 813 (1986). However, upon appeal from a
trial court's denial of a motion to suppress the discovered
evidence, the burden is upon the appellant to show that the
denial, when the evidence is considered in the light most
favorable to the Commonwealth, constituted reversible error.
Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731,
cert. denied, 449 U.S. 1017 (1980).
A warrantless search and seizure is not unlawful unless it
is unreasonable, Chevrolet Truck v. Commonwealth, 208 Va. 506,
508, 158 S.E.2d 755, 758 (1968), because the Fourth Amendment
does not forbid all searches and seizures, only those that are
unreasonable. Elkins v. United States, 364 U.S. 206, 222 (1960);
Verez, 230 Va. at 410, 337 S.E.2d at 752. In the matter before
this Court, the trial court rejected the testimony of appellant
and, obviously, believed the evidence of the officers. The
record discloses that in response to information received by a
tip, at approximately 5:00 a.m. on June 21, 1993, Officers
Sergeant and Maston of the Norfolk Police Department went to a
motel where appellant occupied a room. The officers had been
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given the room number and told that drugs were being sold from
that room.
Upon arrival at the room, appellant responded to the
officers' knock on the door. The officers informed appellant of
the purpose of their visit and asked appellant if they could
enter the premises. The officers testified at the suppression
hearing that appellant had given them permission to search the
room.
Once inside the room, one officer found a 9 millimeter
handgun in a nightstand. The other officer, seeing a pair of
pants and a shirt, asked appellant whether they belonged to him
to which appellant responded in the affirmative. Inside the
pants, the officer recovered a billfold belonging to appellant
and twenty-eight individual ziplock baggies containing cocaine.
The voluntariness of a consent to a search is a question of
fact to be determined by the trial court and will not be reversed
on appeal unless it is clearly erroneous. On the evidence
contained in this record, we cannot say that the trial court's
denial of appellant's motion to suppress was plainly wrong or
without evidence to support it. See McFadden v. Commonwealth,
225 Va. 103, 108, 300 S.E.2d 924, 926 (1983).
SUFFICIENCY
On appeal, when the sufficiency of the evidence is
challenged, we view the evidence in the light most favorable to
the Commonwealth, granting to it all reasonable inferences fairly
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deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349,
352, 218 S.E.2d 534, 537 (1975). Viewed in that light, the
record discloses that twenty-eight individual ziplock baggies
containing cocaine, packaged as if for distribution, were found
inside clothes belonging to appellant. In addition, a gun was
found in a nightstand in the motel room.
When the proof of intent to distribute
narcotics rests upon circumstantial evidence,
the quantity which the defendant possesses is
a circumstance to be considered. Indeed,
quantity, alone, may be sufficient to
establish such intent if it is greater than
the supply ordinarily possessed for one's
personal use.
Dukes v Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383
(1976). Moreover, the courts have long recognized that a gun is
an object associated with persons dealing narcotics.
For the reasons stated, the judgment of the trial court is
affirmed.
Affirmed.
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