COURT OF APPEALS OF VIRGINIA Present: Judges Fran k, Kelsey and Powell Argued at Chesapeake, Virginia
RAYMONT DANTE ARMSTEAD OPINION BY v. Record No. 1347-09-1 JUDGE D. ARTHUR KELSEY JULY 27, 2010 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Timothy S. Fisher, Judge Charles E. Haden for appellant. Leah A. Darron, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney Genera l, on brief), for appellee.
The trial court found Raymont Dante Armstead guilty of providing false information to a law enforcement officer, driving on a suspended operator’s license, posse ssion of cocaine with intent to distribute, and possession of marijuana. On appeal, Armstead contends the court should have suppressed most, if not all, of the incrimin ating evidence. He also claims the evidence was insufficient to support his drug convictions. Fi nding neither argument pe rsuasive, we affirm.

I. On appeal, we review the evidence in the “ light most favorable” to the Commonwealth. Commonwealth v. Hudson , 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This principle requires us to “discard the evidence of the accu sed in conflict with th at of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Parks v. Commonwealth , 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted).In addition, our examination of the record “is not limited to the evidence mentioned by a party in trial argument or by th e trial court in its ruling.” Bolden v. Commonwealth , 275 Va. 144, 147, 654 S.E.2d 584, 586 (2008). In determining whether there is evidence to sustain a conviction, an appellate court must consider “all the evidence” adm itted at trial that is contained in the record. Hamilton v. Commonwealth , 279 Va. 94, 103, 688 S.E.2d 168, 173 (2010) (quoting Bolden , 275 Va. at 147, 654 S.E.2d at 586). In July 2006, a Newport News police officer made a stop of a ve hicle suspected of violating a city noise ordinance. Armstead was alone in the vehicl e. The officer asked Armstead for his driver’s license and vehicle registration. Armstead said he currently held a Virginia driver’s license but had no type of documentary identification with him. He provided verbal information including a name, birth date, and soci al security number. The officer checked this information on his computer and concl uded the information was likely false. Armstead then informed the officer he was licensed in Washington D.C. The officer checked this information and determined the onl y driver’s license associated with the name given had expired. Believing Armstead again pr ovided false information, the officer informed him he was under arrest. It was impossible, however, to fill out the arrest paperwork without knowing Armstead’s true identity. “If there’s no I.D.,” the officer te stified, “there’s no way to verify his identity.” Before leaving the scene, the officer deci ded to search the vehicle. At trial, 1 the officer explained: Q: And just for the purpose of the record, why was it you that [sic] placed him under arrest?

1 “When affirming a trial court’s denial of a suppression motion, we consider facts presented both at the suppre ssion hearing and at trial.” Testa v. Commonwealth , 55 Va. App. 275, 279, 685 S.E.2d 213, 215 (2009).

- 2 -A: I believe he was giving me false information . . . someone giving me false information leads me to believe they have no intention of appearing in c ourt, and I didn’t feel like I could satisfactorily fill out the summons because I didn’t believe with the information at the time that the subject would appear in court. I elec ted to take him in front of a magistrate. Q: Were you ultimately able to determine who he was?
A: Yes. Q: How did you do that? A: Searched the vehicle incident to arrest and located a wallet with Virginia identification. While in the vehicle, the officer observed th e remains of a marijuana cigar in an open ashtray and two clear plastic bags containing 5.675 grams of crack co caine in the center console. Another officer later seized the drugs a nd placed them in evidence retention bags. After being advised of his Miranda rights, Armstead invoked hi s right to counsel. The officer then placed Armstead in a police vehicle fo r transport to the local jail. A female walked up to the scene claiming the vehicle belonged to her. Based on her statements, the officers arrested her. Watching from the police vehicl e, Armstead shouted: “It’s mine, it’s mine, everything in the car is mine.” The officer test ified Armstead “continued constantly to scream that from the back of the marked police unit.” Prior to trial, Armstead file d a written motion to suppress. At the suppression hearing, the prosecutor argued the officer had a right to se arch the vehicle incident to Armstead’s arrest under settled law, citing among other cases, New York v. Belton , 453 U.S. 454 (1981). The prosecutor focused on the probabl e cause justifying Armstead’s arrest. Armstead’s counsel argued the arrest was pretextual and a mere ruse to search the vehicle.

- 3 -Judge, the argument is that the information he gave came back as a valid identity in Washington, D.C. and that merely we have a fishing expedition. The officer ha s some desire to search the vehicle and uses that pretext that in itially said this or that, and “I just suspect that maybe he’s not who he says he is, so I’m not going to give him a summons,” kind of on a whim, the argument is he’s finding any excuse to search the vehicle, and the search should be declared invalid. The trial court denied the motion to suppress, finding the officer had probable cause to arrest Armstead. Correctly applying then-curre nt law, the court concluded a valid arrest ipso facto authorized the vehicle search. “The issue really is not what happens after the arrest,” the court explained, “the issue is the ability to arre st. Clearly, once the arre st is made, somebody can search the car.” At trial, Armstead testified he never shouted that everything in the vehicle belonged to him. He denied any knowledge of the cocaine and said the car belonged to the woman, his fiancée. She testified the car was hers, but said nothing about the drugs. On cross-examination, Armstead and his fiancée admitted they were convicted felons. Sitting as factfinder, the tria l court rejected Armstead’s testimony and found him guilty of providing false identity information to a law enforcement officer in violation of Code § 18.2-186.3, driving on a suspended or revoked oper ator’s license (second or subsequent offense) in violation of Code § 46.2-301, possession of cocaine with intent to distribute under Code § 18.2-248, and possession of marijuana in violation of Code § 18.2-250.1. The court entered final conviction and se ntencing orders on May 1, 2009. Armstead filed a notice of appeal and, on Ju ly 13, 2009, moved the court to authorize bail pending appeal. At the bail heari ng, Armstead’s counsel argued fo r the first time the search of the vehicle violated the rule recently adopted by Arizona v. Gant , 129 S. Ct. 1710 (2009). The trial court denied the requ est for bail pending appeal.

- 4 -II. A. M OTION TO S UPPRESS — A RIZONA v. G ANT On appeal, Armstead argues the trial court violated the rule recently announced in Arizona v. Gant , 129 S. Ct. 1710 (2009), when it refused to grant the motion to suppress. He contends we should apply Gant retroactively and doing so would necessarily require the application of the exclusionary ru le to his case. We do not addr ess the exclusionary rule issue 2 because “the best and narrowest ground available” for decision, Kirby v. Commonwealth , 50 Va. App. 691, 698 n.2, 653 S.E.2d 600, 603 n.2 (2007) (citation omitted), is the first premise of Armstead’s argument — that the trial c ourt’s decision is inconsistent with Gant

. 3 We do not believe it is. Prior to Gant , many courts (including Virginia’s appellate courts) understood New York v. Belton , 453 U.S. 454 (1981), to permit wholly suspicio nless searches of vehicles after a valid arrest of a recent occupant. See Glasco v. Commonwealth , 257 Va. 433, 513 S.E.2d 137 (1999); Cason v. Commonwealth , 32 Va. App. 728, 530 S.E.2d 920 (2000); White v. Commonwealth , 24 Va. App. 446, 482 S.E.2d 876 (1997). Gant rejected this broad view of Belton and limited vehicular searches incident to a rrest to situations where (i) an unsecured arrestee is within reach of the passenger compartment of th e vehicle, or (ii) it is “ reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Gant , 129 S. Ct. at 1719 (citation omitted)

2 See generally United States v. Davis , 598 F.3d 1259, 1263 (11th Cir. 2010); United States v. McCane , 573 F.3d 1037, 1045 (10th Cir. 2009); State v. Riley , 225 P.3d 462, 465-66 (Wash. 2010). Cf. Smith v. Commonwealth , 55 Va. App. 30, 51, 683 S.E.2d 316, 327 (2009) (commenting in dicta on the absence of any mention in Gant of the good-faith exception but failing to note that Gant affirmed the Arizona Supr eme Court’s application of Belton and that no litigant in Gant raised the issue of good-faith immunity).
3 The Commonwealth contends Armstead failed to preserve the Gant issue for appeal under Rule 5A:18. We assume without decidi ng the issue has been properly preserved.

- 5 -(emphasis added). In this respect, Gant addressed only the “circumsta nces unique to the vehicle context” arising out of a “search incident to a lawful arrest” of a recent occupant. Id. 4 Here, the officer testified he believed Ar mstead “was giving me false information” concerning his identity and the stat us of his driver’s license. The officer’s belief was justified. Armstead initially claimed to possess a valid Vi rginia license and provi ded verbal information including a name, birth date, and social security number — which proved to be false. Armstead then, claiming the same identity, said he had a valid D.C. license. That, too, proved to be inaccurate. Throughout the encounter, Armstead insisted he had no documentation of his identity. These circumstances established probabl e cause to arrest Armstead for violating Code § 18.2-186.3, which prohibits the use of false identity information to avoid summons, arrest, or prosecution, or to impede a criminal investigation. 5 The power to arrest Armstead for provid ing false identity information under Code §18.2-186.3 authorized the officer to search the ve hicle because it was “reasonable to believe” the vehicle “might” contain evidence of that crime, Gant , 129 S. Ct. at 1719 (citation omitted), specifically Armstead’s true iden tity and his driving status. See State v. Gordon , 821 P.2d 442, 443-44 (Or. Ct. App. 1991) (“Evidence of defendant ’s identity was relevant to the crime of giving false information to an officer. Accord ingly, the search of defendant’s vehicle for

4 Gant left untouched a variety of “[o]ther established exceptions to the warrant requirement” which authorize vehicle searches “ under additional circumstances when safety or evidentiary concerns demand.” Gant , 129 S. Ct. at 1721. Among the most prominent other exceptions is the so-called automobile exception: “If there is probable cause to believe a vehicle contains evidence of criminal activity, United States v. Ross , 456 U.S. 798, 820-821 (1982), authorizes a search of any area of the vehicle in which the evidence might be found.” Gant , 129 S. Ct. at 1721; see also Wyoming v. Houghton , 526 U.S. 295, 301 (1999). This authority to search need not be incident to arrest or in any way related to a recent occupant.
5 See Code § 19.2-74(A) (providing, in certain misdemeanor cases, that “the arresting officer shall take the name and address of such person” and release the person, when appropriate, only after he verifies in writing “h is written promise to appear” in court at the specified time and place).

- 6 -evidence of identification was prope r as a search incident to arre st.”). The belief that such information might be in the vehicle is particular ly reasonable where, as in Virginia, a vehicle operator must always have with him a drive r’s license and vehicl e registration card. See Code § 46.2-104.
Gant fully supports this reasoni ng by citing with approval State v. Fesler , 685 P.2d 1014, 1017 (Or. Ct. App. 1984), as an example of a case correctly applying the narrow view of Belton

. See Gant , 129 S. Ct. at 1721 n.8. Like our case, Fesler involved a driver arrested for driving without a valid license who gave false identification information to an officer. Fesler held a search of the driver’s vehicle, while the driver was locked in the back of the police cruiser, was valid because the “officer had probable cause to arrest defendant and charge him with driving while suspended and giving a false name.” Fesler , 685 P.2d at 1017. The vehicle search related “to the offense for which defendant was arrested in two ways: it would further serve to identify defendant and, because defendant’s knowledge he was suspended may be a pertinent consideration in such cases, it would further tend to show defendant’s consciousness of guilt if the wallet had been hidden.” Id. 6 It makes no difference that the officer who arrested Armstead did not sequence his thinking in the order of these cascading legal prin ciples. The offense establishing probable cause need not “be ‘closely related’ to, and based on the same conduct as,” the offense identified by the officer at the time of the defendant’s arrest. Devenpeck v. Alford , 543 U.S. 146, 153 (2004); see also Jordan v. Commonwealth , 207 Va. 591, 596, 151 S.E.2d 390, 394 (1966). “Subjective

6 See also In re Arturo D. , 38 P.3d 433, 451 (Cal. 2002) (holding that because the officer “was preparing to issue a traffic citation and ther efore needed to learn the true identity of the person to be cited,” it was reasonable under the Fourth Amendment to search areas within a vehicle where identifying documentati on might be expected to be found); accord United States v. Colclough , 549 F.2d 937, 940 (4th Cir. 1977) (holding a vehi cle search “in an effort to secure evidence of the defendants’ identity” was valid).

- 7 -intentions play no role in ordinary, proba ble-cause Fourth Amendment analysis.” Whren v. United States , 517 U.S. 806, 813 (1996); see Robinson v. Commonwealth , 273 Va. 26, 37, 639 S.E.2d 217, 223 (2007) (holding an officer’s “sub jective motivation is irrelevant” (citation omitted)). An officer’s “action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s stat e of mind, ‘as long as the circumstances, viewed objectively , justify [the] action.’” Brigham City v. Stuart , 547 U.S. 398, 404 (2006) (emphasis in original and citations omitted). 7 In short, the officer had probable cause to arrest Armstead for providing false identity information in violation of Code § 18.2-186.3. It was “reasonable to believe” that Armstead’s vehicle “might” contain evidence of that crime. See Gant , 129 S. Ct. at 1719 (citation omitted). During the officer’s valid search for evidence of Armstead’s identit y, he also discovered marijuana in the open ashtray and cocaine in the center console. Under these circumstances, we hold the trial court’s denial of Armstead’s motion to suppress is not inconsistent with Gant

. B. S UFFICIENCY OF THE E VIDENCE Under settled principles, we review a trial co urt’s factfinding “with th e highest degree of appellate deference.” Thomas v. Commonwealth , 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006). An appellate court does not “ask itself whether it believes that the evidence at the trial

7 Thus, faced with a suppression motion, a court should not limit itself “to what the stopping officer says or to eviden ce of his subjective rationale,” Raab v. Commonwealth , 50 Va. App. 577, 583 n.2, 652 S.E.2d 144, 148 n.2 (2007) ( en banc ) (citation omitted), but should look instead to what a reasonable, objective officer could have concluded from the totality of the circumstances. “Just as a subjective belief by th e arresting officer woul d not establish probable cause where none existed, a subjec tive belief by the arresting officer cannot destroy probable cause where it exists.” United States v. Anderson , 923 F.2d 450, 457 (6th Cir. 1991); cf. Jones v. Commonwealth , 279 Va. 665, 673, 691 S.E.2d 801, 805 (2010) ( holding an “officer’s subjective characterization of observed conduc t is not relevant to a court’ s analysis concerning whether there is a reasonable suspicion because the Court’s review of whether there was reasonable suspicion involves application of an objective rather than a subjective standard” (citation omitted)).

- 8 -established guilt beyond a reasonable doubt.” Williams v. Commonwealth , 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009) (quoting Jackson v. Virginia , 443 U.S. 307, 318-19 (1979)) (emphasis in original). “Rather, the relevant question is whether ‘ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Id. (citation omitted and emphasis in original). In this case, Armstead contends no rati onal factfinder could c onclude the evidence proved he possessed either the cocaine or the ma rijuana found in the vehicle. We disagree. Constructive possession of drugs can be s hown by “acts, statements, or conduct of the accused or other facts or circumstances which te nd to show that the accused was aware of both the presence and character of the substance and th at it was subject to hi s dominion and control.” Haskins v. Commonwealth , 44 Va. App. 1, 6, 602 S.E.2d 402, 404 (2004) (citation omitted). As has been often said, “in drug cases no less than a ny other, it ‘is axiomatic that any fact that can be proved by direct evidence may be proved by circumstantial evidence.’” Id. (quoting Etherton
v. Doe , 268 Va. 209, 212-13, 597 S.E.2d 87, 89 (2004)). Under such circumstances, the “Court must consider the totality of the circ umstances established by the evidence.” Williams v. Commonwealth , 42 Va. App. 723, 735, 594 S.E.2d 305, 311 (2004) (citation omitted). Consequently, “occupancy of a vehicle . . . where illicit drugs are found is a circumstance that may be considered” with other ev idence to show constructive possession. Burchette v. Commonwealth , 15 Va. App. 432, 435, 425 S.E.2d 81, 83 (1992). “Furthermore, proof that a person is in close proximity to c ontraband is a relevant fact” that may also be taken into account by the factfinder. Id. ; see also Dodd v. Commonwealth , 50 Va. App. 301, 308, 649 S.E.2d 222, 225 (2007). “While no single piece of evidence may be sufficient, the ‘combined force of many concurrent and related circumstances, each insuffi cient in itself, may lead a reasonable mind

- 9 -irresistibly to a conclusion.’” Harper v. Commonwealth , 49 Va. App. 517, 521-22, 642 S.E.2d 779, 781 (2007) (citation omitted). Here, the cocaine and marijuana were found in the front passenger compartment of a vehicle occupied solely by Armstead. See , e.g. , Brown v. Commonwealth , 5 Va. App. 489, 493, 364 S.E.2d 773, 775 (1988) (“[defendant] was within arm’s reach of the cocaine” (emphasis in original)). The marijuana cigar was in plain view in an open ashtray. See Brown v. Commonwealth , 15 Va. App. 1, 9-10, 421 S.E.2d 877, 883 (1992) ( en banc ) (taking into account the open visibility of th e drugs found “on the dashboard in plain view”). 8 While seated in the police vehicle, Armstead emphatically shouted that everything in the vehicle belonged to him. The timing and emphasis of his shouting, a factfind er could reasonably infer, suggests Armstead was motivated by a desire (albeit both spontaneous and short-lived) to exculpate his fiancée from any inference the drugs belonged to her. Even though Armstead denied his earlier statem ents to the officer that the contents found within the car belonged to him, the trial court, sitting as factfi nder, was at liberty to discount Armstead’s self-serving statements as littl e more than lying to “conceal his guilt,” Coleman v. Commonwealth , 52 Va. App. 19, 25, 660 S.E.2d 687, 690 (2008) (citation omitted), and could treat such prevarications as “affirmative evidence of guilt,” id. (quoting Wright v. West , 505 U.S. 277, 296 (1992)). This principle naturally follows from the broader observation that “whenever a witness testifies, his or her credibility becomes an issue.” Hughes v. Commonwealth , 39 Va. App. 448, 462, 573 S.E.2d 324, 330 (2002) (citation omitted).

8 See also Eckhart v. Commonwealth , 222 Va. 447, 451, 281 S.E.2d 853, 855 (1981) (taking into account that the drugs were “visible” to the defendant); Womack v. Commonwealth , 220 Va. 5, 8, 255 S.E.2d 351, 353 (1979) (finding constructive possession, in part, based upon the “visibility of the drugs”); Haskins , 44 Va. App. at 9-10, 602 S.E.2d at 406 (noting the bag of cocaine “was in plain view”).

- 10 -- 11 - For these reasons, ample eviden ce supports the rationality of Armstead’s convictions for possessing both the marijuana and cocaine found in the vehicle. 9

III. Because the trial court did not err by de nying Armstead’s motion to suppress or by finding him guilty as charged, we affirm his convictions. Affirmed and remanded. 10

9 Because Armstead does not challenge the intent -to-distribute element of the offense, we do not address the sufficiency of the evidence on this issue.
10 The final sentencing order appear s to contain a clerical error. It states the trial court convicted Armstead of distribution of cocaine. See App. 82. The indictment, arraignment, arguments at trial, and convicti on order all identify the charge as possession of cocaine with intent to distribute. We remand the case to th e trial court to address and, if appropriate, to remedy this apparent clerical error. See Code § 8.01-428(B).