Richard Tyrone Banks v. Commonwealth of Virginia ( 2009 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Kelsey and Senior Judge Willis
Argued at Chesapeake, Virginia
RICHARD TYRONE BANKS
MEMORANDUM OPINION * BY
v. Record No. 0443-08-1 JUDGE ROBERT J. HUMPHREYS
MARCH 31, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Johnny E. Morrison, Judge
William Roots, Jr., for appellant.
Josephine F. Whalen, Assistant Attorney General II (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Richard Tyrone Banks (“Banks”) appeals his conviction for possession of cocaine with
intent to distribute, in violation of Code § 18.2-248. Banks makes two arguments on appeal:
(1) the trial court erred in denying his motion to suppress because the police lacked the consent
necessary to search the residence where the drugs were found and (2) the evidence was
insufficient to prove Banks possessed the narcotics found in a footlocker at that residence. For
the following reasons, we disagree and affirm his conviction.
I. Motion to Suppress
When reviewing a trial court’s denial of a motion to suppress, “we are bound by the trial
court’s findings of historical fact unless ‘plainly wrong’ or without evidence to support them and
we give due weight to the inferences drawn from those facts by resident judges and local law
enforcement officers.” McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
(1997) (en banc) (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)). The burden is on
the defendant to show that the denial of his suppression motion, when the evidence is considered
in the light most favorable to the Commonwealth, was reversible error. McCain v.
Commonwealth, 261 Va. 483, 489-90, 545 S.E.2d 541, 545 (2001).
A. Initial Stop
On appeal, Banks argues that “[t]he discovery of narcotics at [his mother’s residence]
was a result of several illegal seizures and searches by the Portsmouth Police Department.”
First, Banks contends that his initial stop was invalid because it was “predicated upon an
informant’s information that was not sufficient to warrant the detention.” We disagree.
“‘The test of constitutional validity of a warrantless arrest 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.’” Byrd v. Commonwealth, 50
Va. App. 542, 551, 651 S.E.2d 414, 419 (2007) (quoting Russell v. Commonwealth, 33 Va. App.
604, 609, 535 S.E.2d 699, 702 (2000)). When an officer makes a warrantless arrest, he “‘may
rely upon information received through an informant, rather than upon direct observations, so
long as the informant’s statement is reasonably corroborated by other matters within the officer’s
knowledge.’” Illinois v. Gates, 462, U.S. 213, 242 (1983) (quoting Jones v. United States, 362
U.S. 257, 269 (1960)). Thus, the officer must have “reasonable grounds to believe the
informant’s statement is true.” McGuire v. Commonwealth, 31 Va. App. 584, 595, 525 S.E.2d
43, 48 (2000).
“When a confidential informant provides the basis for probable cause, there are two
considerations that are particularly relevant to our analysis: (1) the veracity or reliability of the
informant and (2) the informant’s basis of knowledge.” Byrd, 50 Va. App. at 551, 651 S.E.2d at
419 (citing Gates, 462 U.S. at 230). We view these elements, not independently, but as part of
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“the totality-of-the-circumstances analysis that traditionally has guided probable-cause
determinations: a deficiency in one may be compensated for, in determining the overall
reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.”
Gates, 462 U.S. at 233.
In this case, the trial court implicitly found the informant to be reliable by denying
Banks’s motion to suppress. Detective T. McAndrew (“McAndrew”) of the Portsmouth Police
Department testified that he received a tip from a confidential informant with personal
knowledge that Banks was in possession of crack cocaine. In a one-year time period, the same
informant provided McAndrew with accurate information on ten previous occasions. In each
instance, the informant’s tip led to the discovery of narcotics. Therefore, the evidence in the
record supports the trial court’s finding, and we will not disturb it on appeal.
Having found the informant to be reliable, we must next examine his basis of knowledge.
“The basis of an informant’s tip must be ‘something more substantial than a casual rumor
circulating in the underworld or an accusation based merely on an individual’s general
reputation.’” Byrd, 50 Va. App. at 552, 651 S.E.2d at 419 (quoting Spinelli v. United States, 393
U.S. 410, 416 (1969)). An informant may demonstrate his basis of knowledge “by claiming that
he personally observed the crime that he is reporting,” or “his tip may be ‘so detailed as to raise
an inference either of personal observation or of acquisition of the information in a reliable
way.’” Id. (quoting McGuire, 31 Va. App. at 595, 525 S.E.2d at 49).
Though he claimed to have personal knowledge, the informant did not specifically state
that he personally observed Banks in possession of crack cocaine. Nevertheless, the informant’s
tip was “so detailed as to raise an inference . . . of personal knowledge . . . .” Id. The informant
told McAndrew that Banks was in possession of crack cocaine and would be riding in the back
seat of a black Honda, Virginia tags “MANLVE.” He further stated that the vehicle would be in
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the Brighton section of the City of Portsmouth. These are precisely the circumstances in which
the detectives found Banks.
Once he received the tip, McAndrew proceeded to the Brighton section of Portsmouth.
Within fifteen minutes, McAndrew discovered a black Honda with the Virginia license plate
“MANLVE.” The vehicle was parked outside of a house, and Banks was in the back seat.
McAndrew observed Banks get out of the vehicle and enter the house. After a few minutes,
Banks left the residence and got back into the vehicle. McAndrew followed the vehicle as it left
the residence and executed a traffic stop. As the detectives approached the vehicle, they
observed “a digital scale laying in plain view next to Mr. Banks.” Because digital scales are
often used in the distribution of drugs, its presence next to Banks corroborated the informant’s
tip. See Bolden v. Commonwealth, 49 Va. App. 285, 640 S.E.2d 526 (2007), aff’d, 275 Va. 144,
654 S.E.2d 584 (2008). Therefore, McAndrew had “reasonable grounds to believe the
informant’s statement [was] true,” McGuire, 31 Va. App. at 595, 525 S.E.2d at 48, and was
justified in placing Banks under arrest.
B. Search of the Residence
Banks also argues that the trial court erred in denying his motion to suppress the drugs
found in his mother’s residence. He contends that the detectives lacked the consent necessary to
conduct a warrantless search of the premises. Banks further contends that even if his mother
consented to the search of her home, she could not consent to the search of the footlocker.
However, Banks’s argument overlooks the fact that he gave the detectives consent to search the
residence as well. “The [F]ourth [A]mendment ‘protects people and not places.’”
Commonwealth v. Ealy, 12 Va. App. 744, 750, 407 S.E.2d 681, 685 (1991) (quoting Katz v.
United States, 389 U.S. 347, 351 (1967)). “Searches made by law enforcement officers pursuant
to a valid consent to search do not implicate the Fourth Amendment.” Hughes v.
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Commonwealth, 31 Va. App. 447, 454, 524 S.E.2d 155, 159 (2000). Therefore, if Banks’s
consent was valid, the detectives’ search would not implicate his reasonable expectation of
privacy in his mother’s residence.
“Under settled Fourth Amendment principles, ‘a search authorized by consent is wholly
valid,’” Glenn v. Commonwealth, 49 Va. App. 413, 418, 642 S.E.2d 282, 283 (2007) (en banc)
(quoting Kyer v. Commonwealth, 45 Va. App. 473, 477, 612 S.E.2d 213, 215 (2005) (en banc)),
so long as it is “voluntary and uncoerced,” Barkley v. Commonwealth, 39 Va. App. 682, 696,
576 S.E.2d 234, 240 (2003). “The question of whether a particular ‘consent to search was in fact
voluntary or was the product of duress or coercion, express or implied, is a question of fact to be
determined from the totality of all the circumstances,’” and “the burden rests with the
Commonwealth to demonstrate the lack of duress.” Commonwealth v. Rice, 28 Va. App. 374,
378, 504 S.E.2d 877, 879 (1998) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227
(1973)). Furthermore, “custody alone is not enough in itself to demonstrate a coerced consent to
search.” Lowe v. Commonwealth, 218 Va. 670, 678, 239 S.E.2d 112, 117 (1977) (citing United
States v. Watson, 423 U.S. 411 (1976)).
During the motion to suppress, McAndrew testified that he asked Banks if the detectives
could search his mother’s residence. Banks responded, “[y]ou can search. I don’t have anything
there. My mama lives there.” Though Banks was in custody at the time he gave consent, the
record contains nothing to suggest that his consent was the product of duress or coercion. Thus,
Banks’s consent was valid, and the search of the residence did not implicate the Fourth
Amendment.
II. Sufficiency of the Evidence
Finally, Banks argues that the evidence presented by the Commonwealth was insufficient
to prove he possessed the drugs found in his mother’s residence. When considering a challenge
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that the evidence presented at trial is insufficient, we “presume the judgment of the trial court to
be correct” and reverse only if the trial court’s decision is “plainly wrong or without evidence to
support it.” Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002). We
do not “substitute our judgment for that of the trier of fact.” Wactor v. Commonwealth, 38
Va. App. 375, 380, 564 S.E.2d 160, 162 (2002). “Instead, the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979). “This familiar standard gives full play to the responsibility
of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Id.
“To be found guilty under Code § 18.2-248(A), a defendant must possess ‘the controlled
substance contemporaneously with his intention to distribute that substance.’” Harper v.
Commonwealth, 49 Va. App. 517, 521, 642 S.E.2d 779, 782 (2007) (quoting Craddock v.
Commonwealth, 40 Va. App. 539, 553, 580 S.E.2d 454, 461 (2003)). Banks argues that he
cannot be found guilty of possession with intent to distribute, because the Commonwealth did
not prove that he exclusively possessed the drugs in the footlocker. In support of his argument,
Banks points to the fact that seven other people had a key to the footlocker and that not all the
property found in the footlocker belonged to him. However, as we explained in Brown v.
Commonwealth, 15 Va. App. 1, 10, 421 S.E.2d 877, 883 (1992) (en banc) (quoting Castaneda v.
Commonwealth, 7 Va. App. 574, 583-84, 376 S.E.2d 82, 86-87 (1989)):
“Possession may be actual or constructive. Constructive
possession exists when an accused has dominion or control over
the drugs. Such possession may be proved by evidence of acts,
declarations or conduct of the accused from which the inference
may be fairly drawn that he knew of the existence of narcotics at
the place they were found.”
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Furthermore, the possession of narcotics “‘need not be exclusive’” and “‘may be shared with
another.’” Id. Thus, Banks could be convicted of the possession with intent to distribute
regardless of whether or not others had access to the footlocker.
The evidence at trial proved that Banks entered his mother’s residence for a few minutes
just prior to being stopped by the detectives. At the time he was detained, Banks had a digital
scale with him. After obtaining consent to search the residence, the detectives found cocaine in a
back bedroom stored inside a locked footlocker. Banks had the keys to the footlocker in his
pocket. In addition, the footlocker contained various items belonging to Banks including his
personal paperwork and mail. Also in the footlocker was the box for the digital scale found with
Banks. Moreover, the drugs recovered from Banks’s shoe were packaged in a similar manner to
the drugs found in the footlocker. Taken as a whole, we hold that the evidence is sufficient for a
rational finder of fact to find Banks guilty of possession with intent to distribute beyond a
reasonable doubt.
In conclusion, we hold that the trial court did not err in denying Banks’s motion to
suppress. We further hold that the evidence was sufficient to sustain his conviction for
possession of cocaine with intent to distribute. Therefore, we affirm the ruling of the trial court.
Affirmed.
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