COURT OF APPEALS OF VIRGINIA
Present: Judges Clements, Haley and Senior Judge Overton Argued at Richmond, Virginia

GERARD VERNON MORTON MEMORANDUM OPINION * BY v. Record No. 2938-04-2 J UDGE JAMES W. HALEY, JR. MAY 16, 2006 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF HENRICO COUNTY Catherine C. Hammond, Judge James Edward Sheffield for appellant. Stephen R. McCullough, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Gerard Morton appeals from his convicti ons by jury of possession with intent to distribute cocaine and possession of a firearm while in possession of a controlled substance. Appellant asserts the trial cour t erred in denying his motions to suppress both evidence seized pursuant to an “anticipatory” search warrant and statements made to police before receiving his Miranda rights. We affirm appellant’s convictions.
I. In determining whether or not the trial court erred in denying Morton’s motions to suppress, “we consider the evidence and all reason able inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial.” Jackson v. Commonwealth , 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004) (citing Bass v. Commonwealth , 259 Va. 470, 475, 525 S.E.2d 921, 923-24 (2000)).

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - Also, “‘[t]he jury’s verdict will not be dist urbed on appeal unless it is plainly wrong or without evidence to support it.’” Fritter v. Commonwealth , 45 Va. App. 345, 351, 610 S.E.2d 887, 890 (2005) (quoting Clark v. Commonwealth , 30 Va. App. 406, 409-10, 517 S.E.2d 260, 261 (1999)).
II. On May 20, 2003, Inspector Don Maxwell of the Henrico County Police received information from informant Mitchell Fowler conc erning appellant’s involvement in the sale of narcotics. With this information, Maxwell obt ained a search warrant for the premises at 2701 Cushing Drive in Henrico County. The record reflect s that appellant resided at that address, with the sole other occupant being his mother. The affi davit, authored by Maxwell, stated in pertinent part: On Monday May 19, 2003 your affiant had the . . . Informant contact Morton by telephone, at 270 1 Cushing Drive, and set up a deal for Tuesday May 20, 2003 in which the . . . Informant will meet Morton at 2701 Cushing Drive and purchase 1⁄2 kilogram of cocaine for $15,000.00. . . . After Morton accepts payment for the cocaine and delivers the cocaine to the . . . Informant, the search warrant will be executed to recove r the monies used to purchase the cocaine as well as other ev idence in the Conspiracy to Distribute Cocaine. This search warrant will only be executed on the residence if the following occurs: The Confidential and Reliable Informant enters 2701 Cushing Drive and makes the exchange of money for cocaine or . . . enters 2701 Cushing Drive to make the exchange and is at risk from persons located within 2701 Cushing Drive. If none of these events occurs the search warrant will not be executed and will be returned to the issuing magistrate. 1 The warrant specified the things to be searched as items associated w ith the dist ribution of narcotics “including but not limited to: baggies , scales, ledgers, monies, photographs, electronic monitoring devices or other paraphernalia.”

1 Both parties agree that such language rende rs this an “anticipatory” search warrant.- 3 - Inspector Maxwell, accompanied by other He nrico police officers, executed this warrant later the same day. As specified in the warrant , the informant, Fowler, contacted appellant on May 19 and arranged to purchase on e-half kilo of cocaine from a ppellant the following day. On May 20 and after Maxwell gave him $15,000 in poli ce funds, Fowler proceeded to appellant’s residence at 2701 Cushing Drive, entered the sa me, and emerged “[n]o more than ten minutes” later with one-half kilo of co caine. Fowler testified that on ce inside, “we sat down, um, counted the money, and Gerard put the coke on the table, and we exchanged the coke for the money.” After leaving that address, Fowler met with Maxwell and gave him the cocaine from the sale. Pursuant to the search warrant, police en tered the residence at 1:05 p.m. and secured the premises. Maxwell arrived and entere d the residence at 1:20 p.m. Upon his arrival, Maxwell began talking w ith appellant, who had been placed in handcuffs by other officers prior to Maxwell’s arrival. Maxwell described the interaction as follows: When we first went in, [appellan t] immediately was cooperative. He was talking to us, and it came to a point where, um, I was, I guess we were just in conversation, and I wanted to advise him of his Miranda before we went into anything else with the house. And then, like I said, we were in there for 27 minutes when I advised him of Miranda. Maxwell continued: After, after we talked, I told him that he was going to be charged with the distribution of cocaine. . . . I told him that time was of an issue. If he wanted to cooperate , now was the time to do it because we knew that somebody was expecting that money and whether, it was up to him whether he wanted to cooperate. And we talked for, like I said, probably 20 minutes , him asking questions, me answering questions, and he wa s cooperative the whole time. Appellant’s cooperation, Maxwe ll explained, consisted of info rming the Inspector “who his source was,” so that Maxwell could elicit his help in arresting that individual.- 4 - Maxwell advised appellant of his Miranda rights at 1:47 p.m., “27 minutes into [the conversation].” Maxwell further testified, “I asked him if he wanted to continue to, uh, cooperate and work with the police, and he sai d, I don’t have a problem with that. And that started his cooperation. . . . He told me about [his supplier] Sean Taylor before Miranda. And then he, after Miranda, he continued to cooperate .” Later in his testimony, Maxwell reiterated, “And again, [appellant] said he understood [Miranda ], he wanted to cooperate. And a minute after that, we started making phone calls to who I knew then was Sean, who he owed the money
to.” At trial, the Commonwealth introduced a certif icate of analysis confirming the substance Fowler gave to Maxwell as “four hundred a nd ninety-four point seven grams” “cocaine, hydrochloride.” Maxwell also testified that police seized $14,500 in cash and a Raven 25 semiautomatic pistol from 2701 Cushing Drive. 2 Maxwell testified that he later test-fired the gun and confirmed its operability. Police found the weapon in a back bedroom that appellant had previously identified as his ow n. Maxwell testified that appell ant “pointed [the firearm] out to the officers.” Another officer testified at trial that the fire arm “was actually physically located inside of a suitcase, which was inside of the bedroom . . . .” During the search, police also seized digital scales, razor blades, baking soda, and several other separately packaged quanti ties of cocaine. Maxwell testif ied that baking soda is often combined with pure cocaine in order to increase quantity for resale purposes. Thus, as Maxwell concluded “given all the circumstances,” the presence of these items is “very inconsistent with personal use.” 3

2 Fowler, the informant, testified that dur ing the transaction appellant miscounted the money and mistakenly gave him $500 back. Fowl er returned this $500 to Inspector Maxwell.

3 Appellant stipulated that Maxwell qu alified as an expert in narcotics.- 5 - Sean Taylor appeared as a witness for the Commonwealth and testifie d that he delivered 500 grams of cocaine to appellant at his home on the morning of May 20. Taylor said that appellant paged him and asked him to deliver that quantity of cocaine. Taylor testified that appellant was to pay him $15,000 for the cocaine later that day. On the evening of May 20, when Taylor returned to appell ant’s home to collect the money, police arrested him and charged him with conspiracy to distribute cocaine. Appellant testified in his ow n defense. He testified that he lived at 2701 Cushing Drive and that his mother was the only ot her occupant at that address. Appellant testified that he met with Fowler, the informant, on the morning of Ma y 20 at the post office. His purpose in meeting Fowler was to get “a ride home because [his] mo ther was going to her friend’s, and [appellant] was dropping the car off.” Appellant explained th at his conversation with Fowler did not involve drugs; instead “the discussion was pertaining to a young lady that was, that we both sort of was seeing” and also involved cutting appellant’s grass. He explained that Fowler returned later to “see if I had got in contact with the guy I was te lling him about in reference to cutting the grass” and reiterated that their convers ation did not center on a drug transa ction. Appellant testified that he “initially” told the po lice “about the firearm.” He further e xplained that he “believe[ed] this was a setup” and only admitted the cocaine belonged to him because he was “not going to let it fall back on [his] mom, period.” Appellant sought to suppre ss the evidence police seized from 2701 Cushing Drive and the statements made to police before Maxwell administered Miranda warnings at 1:47 p.m. Appellant argued the search warrant, when issued , lacked probable cause and that appellant’s statements made prior to the Miranda warning were not made know ingly and voluntarily. The trial court denied each motion to suppress. Th e jury subsequently convicted appellant of- 6 - possession with intent to dist ribute cocaine and possession of a firearm while possessing a controlled substance. This appeal followed.
III. Generally speaking, when reviewing a trial court’s ruling on a motion to suppress, “we are bound by the trial court’s findings of histor ical fact unless ‘plain ly wrong’ or without evidence to support them and we give due weight to the infere nces drawn from those facts by resident judges and local law enforc ement officers.” 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)).
A. VALIDITY OF THE ANTICIPATORY SEARCH WARRANT Initially, we recognize that “no [search] Wa rrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV, § 1. “Probable cause for issuance of a search warrant exists when, ‘given all the circumst ances set forth in the affidavit . . . , there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” Ward v. Commonwealth , 47 Va. App. 733, 743, 627 S.E.2d 520, 525 (2006) (quoting Tart v. Commonwealth , 17 Va. App. 384, 387, 437 S.E. 2d 219, 221 (1993)). We note that each party in this matter rec ognizes that the warran t at issue here is commonly referred to as an “anticipatory search warrant.” On March 21, 2006, the United States Supreme Court decided United States v. Grubbs , 126 S. Ct. 1494 (2006), which deals with the precise issue of anticipatory search warrants. There, the Court held: Anticipatory warrants are . . . no different in principle from ordinary warrants. They require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the- 7 - warrant is executed. It should be noted, however, that where the anticipatory warrant places a c ondition (other than the mere passage of time) upon its execution, the first of these determinations goes not merely to what will probably be found if the condition is met. Id. at 1500 (emphasis in original). Justice Scalia, writing for the Court, continued: In other words, for a conditioned anticipatory warrant to comply with the Fourth Amendment’s requi rement of probable cause, two prerequisites of probability must be satisfied. It mu st be true not only that if the triggering condition o ccurs “there is a fair probability that contraband or evidence of a crime will be found in a particular place,” but also that there is probable cause to believe the triggering condition will occur . The supporting affidavit must provide the magistrate with suffici ent information to evaluate both aspects of the probable-cause determination. Id. (citation omitted) (emphasis in original). This Court also recently addressed anticipatory search warrants in Ward . There, we held that [w]arrants issued when the cont raband which gives rise to the search is not yet at the premis es to be searched are called “anticipatory search warrants” and are valid as long as the warrant and affidavit establish “a substantial probability that the seizable property will be on the premises when searched” pursuant to the anticipatory warrant. 47 Va. App. at 744, 627 S.E.2d at 526 (citation omitte d). “Thus, in determining the validity of an anticipatory warrant, a court may consider the facts surrounding its execution.” Id. We will address each of the two prerequisites necessary for a valid anticipatory search warrant as articulated in Grubbs in order. The first, that bein g the likely presence of contraband or evidence of a crime in the pla ce to be searched after the occu rrence of a triggering event, was certainly satisfied here. Here, Inspector Maxwe ll arranged for an informant, Fowler, to enter 2701 Cushing Drive with $15,000 to consummate a tr ansaction with appellant for cocaine. The triggering event was specified in the warrant as follows:- 8 - This search warrant will only be executed on the residence if the following occurs: The Confidential and Reliable Informant enters 2701 Cushing Drive and makes the exchange of money for cocaine or . . . enters 2701 Cushing Drive to make the exchange and is at risk from persons located within 2701 Cushing Drive. If neither of these events occurred, police would not execute the warrant. As such, police would not execute this wa rrant unless either Fowler finished the transaction and brought the purchased cocaine to Maxwell or police determined that Fowler was at risk from persons inside the residence. In either case, “there [was] a fair probability that contraband or evidence of a crime [would] be found” in the residence. Grubbs , 126 S. Ct. at 1500. If after emerging from appellant’s residenc e Fowler gave cocaine to Inspector Maxwell, then certainly one could assume the money used to consummate that transaction was present in the residence and also “a fair pr obability” that other items indicat ive of conspiracy to distribute cocaine were present as well. If the second event were to occur, that being the informant was at risk from those inside the residence, then ther e is “a fair probability” of evidence of another crime, that being a crime against Fowler’s person. Either way, the first prerequisite is satisfied. The second prerequisite deals with the triggering event itse lf; there must be probable cause to believe the triggering event will in fact occur. As Inspector Maxwell himself was responsible for orchestrating the triggering event, ther e is no question that the magistrate had probable cause to believe the even t would occur. Moreover, the affidavit contained information describing informant’s preliminary actions: “On Monday May 19, 2003 your affiant had the . . . Informant contact Morton by telephone, at 2701 Cu shing Drive, and set up a deal for Tuesday May 20, 2003 in which the . . . Informant will meet Morton at 2701 Cushing Drive and purchase 1⁄2 kilogram of cocaine for $15,000.00.” Thus, the affidavit contained particular information describing an appointment at a specific time a nd at a specific place. That, coupled with- 9 - Maxwell’s oversight of the entire process, gave the magistrate probable cause to issue a valid anticipatory search warrant. We therefore hold that the two prerequisites for issuance of a valid anticipatory search warrant were met in the instant case. Maxwe ll’s affidavit gave the magistrate grounds to conclude that there was both “a fair probability th at contraband or evidence of a crime will be found” at 2701 Cushing Drive and “that there is probable cause to be lieve the triggering condition will occur.” Grubbs , 126 S. Ct. at 1500. Accordingly, the trial court did not err in denying appellant’s motion to suppress evidence seized pursuant to this search warrant.
B. APPELLANT’S PRE-MIRANDA STATEMENTS TO POLICE Appellant asserts that the trial court erre d in admitting statements he made to police before being advised of his Miranda rights. We assume without deciding that appellant’s argument has merit and hold that any erro r, if present at all, was harmless. 4
“When a federal constitutiona l error is involved, a review ing court must reverse the judgment unless it determines that the error is harmless beyond a reasonable doubt.” Clay v. Commonwealth , 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001) (citations omitted). The reviewing court must determine “‘whether there is a reasonable possibility that the ev idence complained of might have contributed to the conviction.’” In making that determination, the court must consider, among other fa ctors, “the importance of the tainted evidence in the prosecution’s case, whether that evidence was cumulative, the presence or absence of evidence corroborating or contradicting the tainted evid ence on material points, and the overall strength of the prosecution’s case.” Pitt v. Commonwealth , 260 Va. 692, 695, 539 S.E.2d 77, 78 (2000) (citations omitted).

4 At oral argument, appellant’s counsel con ceded that if this Court was to find the anticipatory search warrant in this case valid, then the evidence seized would be sufficient to find him guilty of the two charges, independent of any statements he made to police.- 10 - We will first address appellant’s asserti on that the trial court erred in admitting incriminating statements related to the charge of possession with intent to distribute cocaine. The record reflects that appellant gave Inspec tor Maxwell his supplier’s name both before and after being given Miranda warnings. However, nowhere in the record can we find a statement from appellant admitting to the sale of cocaine. Thus, we hold the incriminating statement appellant made, relating to his supplier Sean Taylor, was cumulative of other evidence and accordingly, harmless beyond a reasonable doubt. As the Virginia Supreme Court held in McCain v. Commonwealth , 261 Va. 483, 545 S.E.2d 541 (2001), Several factors may constitute probative evidence of intent to distribute a controlled substance. These factors include the quantity of the drugs seized, the manner in which they are packaged, and the presence of an unusual amount of cash, equipment related to drug distribution, or firearms. Id. at 493, 545 S.E.2d at 547. Moreover, “Possession of a quantity greater than that ordinarily possessed for one’s personal use may be sufficient to establish an intent to distribute it.” . . . Expert testimony, usually that of a police officer familiar with narcotics, is routinely offered to prove the significance of the weight and packaging of drugs regarding whether it is for personal use. Askew v. Commonwealth , 40 Va. App. 104, 109, 578 S.E.2d 58, 60-61 (2003). Here, Maxwell, an expert familiar with narc otics, testified that the differently bagged quantities of cocaine, along with the presence of digital scales , razor blades, and baking soda, were “very inconsistent with pers onal use.” Specifically, Maxwell testified that the presence of baking soda was significant , as the same is used to increa se the quantity of pure cocaine for distribution purposes. Thus, the cumulative ev idence of possession with intent to distribute cocaine renders the allegedly erroneou s admission of appellant’s pre-Miranda statements harmless beyond a reasonable doubt.- 11 - Likewise, any statement of appellant claimi ng ownership of the firearm seized by police was merely cumulative of other evidence of ow nership. Code § 18.2-308.4 provides that “[i]t shall be unlawful for any person unlawfully in possession of a controlled substance . . . to simultaneously with knowledge and intent possess any firearm.” Possession of the firearm may be either actual or constructive, and this Court has held on prior occasions that the analysis used to establish constructive possession of drugs is applicable to firearms as well. See Archer v. Commonwealth , 26 Va. App. 1, 11-12, 492 S.E.2d 826, 831 (1997); Blake v. Commonwealth , 15 Va. App. 706, 708-09, 427 S.E.2d 219, 220-21 (1993). To support a conviction based upon constructive possession, the Commonwealth “must point to evid ence of acts, statements, or conduct of the accused or other fa cts or circumstances which tend to show that the defendant was aware of both the presence and character of the substance and th at it was subject to his dominion and control.” Jefferson v. Commonwealth , 14 Va. App. 77, 81, 414 S.E.2d 860, 862 (1992). Here, police seized the firearm from a suit case in appellant’s bedroom. No t only was the weapon in close proximity to the cocaine, scales , razor blades, and baking soda seized by police, the weapon was readily accessible to appellant w ithin his own bedroom. Thus, the jury as trier of fact could rationally conclude that this weapon belonged to appellant inde pendent of any statement from him that claimed ownership. Any error, if present at all, in admitting such a statement would be harmless, given the cumulative evidence of posse ssion of the firearm while in possession of a controlled substance.
IV. In light of the foregoing, we hold that the anticipatory search warrant present here contained probable cause for the specified search of appellant’s home and that any error, if present at all, in admitting appellant’s pre-Miranda statements was harmless, given the fact that- 12 - the statements were cumulative of other eviden ce presented at trial. As such, appellant’s convictions are affirmed. Affirmed.