COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys 

Argued at Richmond, Virginia 

AKEEM JEAN WILSON 

 MEMORANDUM OPINION* BY 

v. Record No. 0433-02-2 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 DECEMBER 10, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

L. A. Harris, Jr., Judge 

 (David R. Lett, on brief), for appellant. 

 Appellant submitting on brief. 

 Donald E. Jeffrey, III, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 Akeem Jean Wilson (appellant) was convicted of possession 

with intent to distribute more than five pounds of marijuana in 

violation of Code § 18.2-248.1. Appellant contends that his 

consent to search the car and the motel room was involuntary. We 

hold that appellant is procedurally barred from raising this issue 

pursuant to Code § 19.2-266.2 and Rule 5A:18. 

I. BACKGROUND 

 Under familiar principles of appellate review, we examine 

the evidence in the light most favorable to the Commonwealth, 

the prevailing party below, granting to that evidence all 

reasonable inferences fairly deducible therefrom. See Juares v. 

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

 

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

designated for publication.
 On July 25, 2001, Investigator W.R. Williams (Williams) 

responded to a tip that an older model brown Honda with a car seat 

was located in the parking lot of the Comfort Inn Motel and 

contained a substantial amount of marijuana. Williams drove 

through the parking lot, found an older model black Honda with a 

car seat and appellant sitting in the driver's seat. Williams and 

Investigator Layman, both dressed in plain clothes, but with their 

badges displayed, approached the Honda on foot and asked appellant 

if they could speak to him. Appellant stepped out of the car and 

gave his identification to the officers, which they returned to 

him. He said he was staying at the motel, but was in the parking 

lot listening to music and waiting for a female friend. Appellant 

allowed the officers to pat him down for weapons but refused a 

search of the car because the car "belonged to his friend Chris." 

The officers told him he was free to leave, but the car was not. 

Appellant remained in the area. 

 The officers called for a canine unit to screen the car for 

drugs and took appellant's identification to make sure there were 

no outstanding warrants. During the five or six minutes Williams 

waited for the license check, he walked past the Honda and 

"smell[ed] a strong odor of marijuana coming from the trunk area 

of the vehicle." The officers then placed appellant in handcuffs, 

told him that he was not under arrest but was being detained 

because they believed there was marijuana in the car. The canine 

"alerted" on the car, and Williams told appellant they would get a 

search warrant for the car and asked him if they could search his 

motel room. He consented to the search of the motel room, and the 

officers recovered approximately $9,000 and ten grams of 

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marijuana. The officers returned to appellant and again asked him 

for permission to search the car. Williams said, "I also again 

explained to [appellant] that he could give me consent to search 

the vehicle, and after he paused, hesitated, and he said, sure. I 

asked him again, can I search your vehicle? And he said, yes." 

The trunk of the car contained forty-five pounds of marijuana. 

 Appellant filed no pretrial motions contesting the validity 

of his consent to search the car or the motel room. He also made 

no objection at any time during the Commonwealth's case to the 

admissibility of the drugs or the search of the car or the motel 

room. The motion to strike made at the close of Commonwealth's 

case was limited to the sufficiency of the evidence on the 

conspiracy charge.1

 Only during closing arguments did appellant 

address the issue of consent in any manner. 

The only quirk, as I call it, a small matter 

in the case would be whether, in fact, if 

[sic] the search was consensual. The only 

thing we talked about on the stand, [sic] 

the officer told him discreetly but then 

kept [sic] driver's license. To some, [sic] 

to some extent, not free to leave [sic]. 

How far that goes as far as the search is 

concerned and what money is found, and then 

eventual consent to search the car [sic]. 

 I would suggest because he kept his 

license, that this was not a consensual 

search. 

 Appellant was found guilty of possession with the intent to 

distribute more than five pounds of marijuana. 

II. Analysis 

 Code § 19.2-266.2 provides in pertinent part: 

 1

 Appellant was found not guilty of conspiracy to sell 

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Defense motions or objections seeking (i) 

suppression of evidence on the grounds such 

evidence was obtained in violation of the 

provisions of the Fourth, Fifth or Sixth 

Amendments to the Constitution of the United 

States or Article I, Section 8, 10 or 11 of 

the Constitution of Virginia proscibing 

illegal searches and seizures and protecting 

rights against self-incrimination, . . . 

shall be raised by motion or objection, in 

writing, before trial. . . . The court may, 

however, for good cause shown and in the 

interest of justice, permit the motions or 

objections to be raised at a later time. 

 In the instant case, appellant's closing argument is 

essentially a motion to suppress the evidence. "[T]he plain 

language of Code § 19.2-266.2 requires that a defendant seeking 

to suppress evidence based on a violation of his Fourth 

Amendment rights must file a suppression motion no later than 

seven days before trial, absent 'good cause shown and in the 

interest of justice.'" Upchurch v. Commonwealth, 31 Va. App. 

48, 51, 521 S.E.2d 290, 291-92 (1999). See also Schmitt v. 

Commonwealth, 262 Va. 127, 146, 547 S.E.2d 186, 199 (2001) (tape 

recording admitted into evidence because appellant failed to 

comply with statutory requirements of Code § 19.2-266.2); Johnson 

v. Commonwealth, 37 Va. App. 634, 644-45, 561 S.E.2d 1, 6 (2002) 

(constitutionality of a code section not properly before Court 

because appellant failed to comply with Code § 19.2-266.2); 

Morrison v. Commonwealth, 37 Va. App. 273, 279, 557 S.E.2d 724, 

727 (2002) (whether statutes were unconstitutionally vague not 

properly before the Court because appellant failed to comply with 

 

marijuana. 

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Code § 19.2-266.2). There is no dispute that appellant failed to 

file a timely pretrial motion addressing the validity of his 

consent to search his motel room and car. The trial court did 

not find any good cause or ends of justice exception for 

appellant's failure to follow the mandated procedure. As we 

stated in Upchurch, the Commonwealth would be prejudiced by 

allowing a defendant to disregard, without good cause, the 

dictates of Code § 19.2-266.2. This procedure is directly 

related to the provisions of Code § 19.2-398, the Commonwealth's 

right to appeal evidence excluded as a result of a suppression 

hearing. See 31 Va. App. at 52, 521 S.E.2d at 292. Thus, we 

hold appellant's failure to comply with the statutory 

requirements of Code § 19.2-266.2 bars his raising the issue on 

appeal. 

 Additionally, a ruling of a trial court will not be reversed 

unless an objection is stated "together with the grounds therefor 

at the time of the ruling, except for good cause shown or to 

enable the Court of Appeals to attain the ends of justice." Rule 

5A:18. Appellant failed to object to the admission of any of the 

evidence regarding the initial stop, the search of his motel 

room, the detention, the search of the car, the anonymous tip or 

the marijuana. All the evidence was admitted without objection 

by appellant. 

 An accused may not wait until the 

Commonwealth has rested its case before 

challenging the admissibility of . . . 

evidence. This must, of necessity, be the 

rule because whether such evidence is 

admissible is a question involving inquiry 

by the trial court before the evidence is 

presented to the [trier of fact]. If no 

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objection is raised until the Commonwealth 

has rested, the necessity and opportunity 

for such inquiry do not arise. 

[T]he defendant, by failing to act in a 

timely manner to prevent the admission of the 

. . . evidence, waived all objection thereto. 

Such evidence was, therefore, properly before 

the [trier of fact] for its consideration. 

Poole v. Commonwealth, 211 Va. 258, 260, 176 S.E.2d 821, 823 

(1970) (citations omitted). See also McCary v. Commonwealth, 36 

Va. App. 27, 40, 548 S.E.2d 239, 245 (2001) (certificate of 

analysis on fourth bag of cocaine admitted because appellant 

failed to object to its admission at the time). Appellant's 

failure to object to the admission of evidence or make an 

appropriate motion to strike waived his objections. 

 Thus, we affirm the trial court's ruling. 

 Affirmed. 

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