COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Frank and Senior Judge Bray 

Argued at Chesapeake, Virginia 

ELMER MILTEER, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 0939-02-1 JUDGE RICHARD S. BRAY 

 JUNE 3, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY 

Westbrook J. Parker, Judge 

 J. Roger Griffin, Jr. (Chris A. Christie; 

Christie, Kantor, Griffin & Smith, P.C., on 

brief), for appellant. 

 John H. McLees, Senior Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 Elmer Milteer (defendant) was convicted in a bench trial for 

violations of Code §§ 59.1-41.3 and 59.1-41.4, proscribed conduct 

related to "Records, Tapes and Other Recorded Devices." As a 

result of the convictions, the court found defendant in violation 

of previously imposed probation and revoked suspension of the 

attendant sentence. 

 On appeal, defendant complains: (1) police arrested him 

without probable cause, (2) the trial court erroneously convicted 

him of violating both Code § 59.1-41.4 and "the unlawful 

possession of cassettes produced in violation of Chapter 3.1, 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
Title 59.1," and (3) the evidence was insufficient to support the 

convictions. Accordingly, defendant further contends the 

probation revocation also was in error. We affirm the trial 

court. 

I. 

 Defendant first maintains the trial court erroneously 

denied his motion to suppress evidence obtained incidental to an 

arrest without probable cause. Upon review of a denial of a 

motion to suppress, "[w]e view the evidence in a light most 

favorable to . . . the prevailing party below, and we grant all 

reasonable inferences fairly deducible from that evidence." 

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 

47, 48 (1991). "[W]e are bound by the trial court's findings of 

historical fact unless 'plainly wrong' or without evidence to 

support them." McGee v. Commonwealth, 25 Va. App. 193, 198, 487 

S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United 

States, 517 U.S. 690, 699 (1996)). "However, we consider de

novo whether those facts implicate the Fourth Amendment and, if 

so, whether the officers unlawfully infringed upon an area 

protected by the Fourth Amendment." Hughes v. Commonwealth, 31 

Va. App. 447, 454, 524 S.E.2d 155, 159 (2000) (en banc) (citing 

McGee, 25 Va. App. at 198, 487 S.E.2d at 261). 

 The instant record establishes that Norfolk Police 

Investigators Steve Stephens and Maurice Joseph, while 

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"screen[ing] packages" at a Federal Express facility, observed 

two parcels shipped from New York by "Marmadu Balde" to "Guy," 

407 Pretlow Street, Franklin, Virginia. The investigators 

recognized the articles as consistent with previously 

encountered shipments from "Marmadu Balde" that contained 

illegally manufactured compact discs and videotapes and secured 

a search warrant for each. Upon opening the boxes, they 

discovered one hundred thirteen (113) "counterfeit" compact 

discs and ninety (90) "counterfeit" videotapes. 

 To facilitate a "controlled delivery" of the packages, each 

was rewrapped and Investigator Joseph, posing as a Federal 

Express employee, proceeded to the designated address, a 

"business." Initially unable to deliver the items because the 

"person there . . . couldn't pay the shipping charges," Joseph 

returned a short time later and found defendant "standing 

outside" an automobile in the "parking lot" that served "the 

business." Joseph approached defendant, declared, "I have a 

delivery," and advised him that delivery charges totaled 

$101.40. Without inquiry or hesitation, defendant paid Joseph 

$102, accepted the parcels, placed them in the rear of the 

vehicle and, after "look[ing] around," drove away. 

 Police followed and stopped and arrested defendant within a 

few blocks. Related searches of defendant and the vehicle 

yielded an assortment of counterfeit videotapes and compact 

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discs, together with an "Underground Wholesale Price List" for 

like articles. Further investigation disclosed defendant was 

"involved in the business of selling goods . . . CDs etcetera" 

from "the back of his truck." 

 "As a general rule of constitutional law, an officer 

properly may make a warrantless arrest if he has probable cause 

to believe the arrestee has committed a crime, and the officer 

may search the individual incident to that lawful arrest." 

Lovelace v. Commonwealth, 27 Va. App. 575, 582, 500 S.E.2d 267, 

271 (1998) (citations omitted). "To establish probable cause, 

the Commonwealth must show 'a probability or substantial chance 

of criminal activity, not an actual showing' that a crime was 

committed." Ford v. City of Newport News, 23 Va. App. 137, 

143-44, 474 S.E.2d 848, 851 (1996) (citation omitted). "If an 

officer has reason to believe that a person is committing a 

felony in his presence by possessing contraband . . . , the 

officer has probable cause to arrest the individual without a 

warrant." Buck v. Commonwealth, 20 Va. App. 298, 304, 456 

S.E.2d 534, 536-37 (1995). In assessing probable cause, "courts 

will test what the totality of the circumstances meant to police 

officers trained in analyzing the observed conduct for purposes 

of crime control." Powell v. Commonwealth, 27 Va. App. 173, 

177, 497 S.E.2d 899, 900 (1998) (citation omitted). 

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 Here, at the instant of arrest, police investigation 

confirmed defendant possessed contraband, after personally 

paying related delivery charges, accepting the illicit articles 

in the parking area that served the delivery address, and 

driving away. Such evidence clearly invested police with the 

requisite probable cause to believe defendant knowingly 

possessed the unlawful recordings. 

II. 

 Defendant next contends the trial court erroneously 

convicted him for violations of both Code § 59.1-41.3 and Code 

§ 59.1-41.4. He maintains Code § 59.1-41.4 is merely a 

"regulatory" statute intended to "allow law enforcement agents 

to determine whether recorded materials were lawfully recorded," 

a "mechanism" to aid enforcement of Code § 59.1-41.3. Thus, 

defendant reasons that failure to comply with Code § 59.1-41.4 

constitutes criminal conduct only when read in conjunction with 

Code § 59.1-41.31 and, therefore, is not a separate offense. 

Defendant's argument ignores a plain reading of the relevant 

statutes. 

 Code § 59.1-41.2, in pertinent part, declares it "unlawful 

for any person" to "manufacture, distribute, transport or 

wholesale recordings, or cause to be manufactured, distributed, 

 1

 Defendant similarly argued before the trial court that 

Code § 59.1-43.3 simply "giv[es] teeth for [59.1-43].2." 

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transported or sold as wholesale, or possess for such purposes 

any article with the knowledge that the sounds are so 

transferred, without the consent of the owner."2

 Code § 59.1-41.3 makes it "unlawful for any person to . . . 

possess for the purpose of selling or renting any recorded 

device that has been produced, manufactured, distributed, or 

acquired in violation of any provision of this chapter." 

(Emphasis added.) 

 Code § 59.1-41.4 requires that "every recorded device sold, 

rented or transferred or possessed for the purpose of sale, 

rental or transfer by any manufacturer, distributor, or 

wholesale or retail merchant shall contain on its packaging the 

true name and address of the manufacturer." 

 Thus, when defendant at once possessed recordings 

proscribed by Code § 59.1-41.2 and packaged contrary to Code 

§ 59.1-41.4, he violated two distinct provisions of Chapter 3.1. 

Code § 59.1-41.3 imposes criminal liability upon the sale, 

rental or related possessing of a "recorded device . . . 

produced, manufactured, distributed or acquired in violation of 

any provision of this chapter." (Emphasis added.) Accordingly, 

defendant was culpable pursuant to Code § 59.1-41.3 for both 

offenses. 

 2

 The instant indictment specifically alleges conduct "in 

violation of Chapter 3.1 of Title 59.1 . . . ."

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III. 

 Lastly, defendant contends the Commonwealth failed to prove 

beyond a reasonable doubt that he "was aware [the tapes] . . . 

were in violation of the regulations for recorded materials." 

Relying upon testimony of the "subtle distinctions" between 

lawful and counterfeit packaging and recordings, defendant 

insists the evidence did not establish the requisite "knowledge 

that his business in any way violated the law." 

 However, defendant's argument before the trial court 

embraced only the contention that "the Commonwealth has . . . 

not proven the case that [he] had the intent to distribute or 

sell these items." An argument presented before the trial court 

does not preserve a different issue for appeal. See Floyd v. 

Commonwealth, 219 Va. 575, 584, 249 S.E.2d 171, 176 (1978); 

Redman v. Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269, 

272 (1997). Thus, because defendant only challenged below the 

sufficiency of the evidence to prove the intent element of the 

offense and not the knowledge component argued today, we decline 

to address the issue. See Rule 5A:18. Moreover, the evidence 

clearly established defendant, a vendor of "CDs etcetera," 

possessed numerous counterfeit recordings, all unlawfully 

labeled and packaged, together with a related "price list," and 

readily accepted the subject contraband, circumstances that 

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belie innocent possession and negate invocation of the "good 

cause" or "ends of justice" exceptions to Rule 5A:18. 

 Because we find no error in the instant convictions, we 

affirm the court's finding that defendant violated the terms of 

probation and revocation of the attendant suspended sentence. 

 Accordingly, we affirm the trial court. 

Affirmed.

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