COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Humphreys and Senior Judge Coleman 

Argued at Chesapeake, Virginia 

SHAWN RACHINE MAYE 

 OPINION BY 

v. Record No. 1831-03-1 JUDGE ROBERT J. HUMPHREYS 

 NOVEMBER 30, 2004 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Randolph T. West, Judge 

 Timothy G. Clancy (Moschel & Clancy, P.L.L.C., on brief), for 

appellant. 

 Alice T. Armstrong, Assistant Attorney General (Jerry W. Kilgore, 

Attorney General, on brief), for appellee. 

 Shawn Rachine Maye appeals his convictions, following a bench trial, for possession of a 

firearm after having been convicted of a felony (in violation of Code § 18.2-308.2), possession of 

a firearm while in possession of a controlled substance (in violation of Code § 18.2-308.4(A)), 

and possession of cocaine with intent to distribute (in violation of Code § 18.2-248). Maye first 

contends the trial court erred in finding that police executed a search warrant in compliance with 

the “forthwith” requirement of Code § 19.2-56 and that it therefore erred in denying his motion 

to suppress the related evidence. Maye further contends that the trial court erred in finding the 

evidence sufficient to establish that he constructively possessed the firearm and the cocaine. For 

the reasons that follow, we affirm Maye’s convictions. 

I. Background 

 In accord with settled principles, we review the evidence on appeal in the light most 

favorable to the Commonwealth, as the party prevailing below, granting to it all reasonable 
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inferences fairly deducible therefrom. Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 

826, 831 (1997) (citation omitted). 

 So viewed, the evidence presented below established that a “confidential, reliable 

informant” advised Detective J.A. Meeks, Jr., of the Newport News Police Department, that 

On May 14, 2001 . . . [the informant] had been to a motel room 

during the last 72 hours where he/she observed a quantity of 

cocaine that was available for sale. The informant identified the 

motel Room as 149 of the Econo Lodge located at 11845 Jefferson 

Avenue inside the City of Newport News. This motel room is 

commonly referred to as 11845 Jefferson Avenue, Room 149, 

Newport News, Virginia. The informant state[d] that while he/she 

was at Room 149, he/she observed a black male known as Shawn 

Maye in possession of a quantity of cocaine that was available for 

sale. The informant advised . . . that Shawn Maye carries a firearm 

for protection. 

Based upon that information, Detective Meeks “identified Shawn Maye as Shawn Rachine 

Maye,” “described as a black male,” “approximately 5’10” tall [weighing] about 180 pounds.” 

Meeks obtained search warrants for the motel room and Maye’s person that same day. 

 Meeks executed the warrants eleven days later, during the early morning hours of May 

25, 2001. Detectives Torres and Sorrell assisted Meeks during the execution of the warrant. 

 Detective Sorrell was the first officer to enter the motel room. Upon entry, he observed 

that there were two beds in the room. Maye was “on the first bed as [he] went into the room, to 

[his] right.” George P. Brooks “was on the other bed.” The beds were “set up in the room 

parallel to one another.” The “only light in the room” “was a TV that illuminated the room, 

which was opposite [a] nightstand” that “separate[d] the two beds.” 

 Upon searching the room, Detective Sorrell located a gun in the nightstand. The gun was 

lying in a lower, open portion of the nightstand, “right next” to “where [Maye] was lying in bed.” 

Detective Torres located digital scales containing “suspected cocaine residue” in the “side 

pocket” of a “black and tan bag.” Detective Torres found the bag on the “right side” of the bed 
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Maye was lying in. Torres asked Maye if the bag belonged to him. Maye stated that the “bag 

was his.” Detective Meeks searched Maye’s person and located “approximately $2200.00 in 

U.S. currency from his pants pocket[s].” 

 After the detectives read Maye his Miranda rights, Detective Meeks “asked [Maye] if he 

had ever possessed the firearm.” Maye replied that “he had,” but he claimed that the gun 

belonged to Brooks. Maye stated that he “would occasionally move it” “from one place to the 

other when he was cleaning up.” For that reason, Maye acknowledged that the detectives would 

find his fingerprints on the gun. Maye also acknowledged “he was not able to possess a firearm 

because he was a convicted felon.” 

 With regard to the “duffel bag,” Maye confirmed that the bag belonged to him. However, 

when he overheard Detectives Meeks and Torres discussing the apparent “cocaine residue” on 

the scale, Maye stated “that there was no cocaine on the scale.” When the detectives placed 

Maye under arrest for “possession of cocaine” and “possession of a firearm by [a] convicted 

felon,” Maye was in “disbelief,” and stated: “I can’t believe you arrested me for cocaine. You 

didn’t find anything.” Maye repeated these statements “[s]everal times throughout the night.”1

 Detective Larry W. Taylor, also of the Newport News Police Department, was 

summoned back to “that room,” by the motel manager, later that same morning. When Detective 

Taylor arrived, he found the door to the room “pulled to, but it wasn’t secure.” He observed that 

the room “appeared to have been searched by the Vice-Narcotics Unit,” and saw a VCR that had 

“been knocked over.” The VCR had a “loose top.” Taylor looked inside the VCR and found 

“cocaine in a plastic bag.” 

 Maye was subsequently indicted for possession of a firearm after having been convicted 

of a felony, possession of a firearm while in possession of a controlled substance, and possession 

 1

 The detectives also arrested Brooks. 
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of cocaine with intent to distribute. Prior to his trial on these charges, Maye moved to suppress 

the evidence, contending that: (1) the “information relied upon in obtaining the search warrant 

became ‘stale’ after the warrant was issued but prior to the police executing it,” in violation of 

the Fourth Amendment; and (2) the “search warrant [was not] executed forthwith” as required by 

Code § 19.2-56. 

 During the hearing on Maye’s motion to suppress, Detective Meeks testified that he 

“obtained the search warrant[s] May 14, [at] approximately 8:00 p.m.” “On May 15 and May 

16” he was on “special assignment, and duty hours for the Vice-Narcotics Squad were switched 

from 10:00 a.m. to 6:00 p.m. and 2:00 p.m. to 10:00 p.m. respectively” on those days. May 17 

and May 18, a Saturday and Sunday, were days Meeks was “signed off duty.” “[T]hen that 

following week, 19th, 20th, 21st and 22nd, [Meeks] was on assignment in Oklahoma.” When 

Meeks returned on May 23, 2001, he and his fellow detectives attempted to “set up the suspect,” 

but Maye was not at the “location of the search warrant.” Accordingly, the detectives returned 

the following evening, “set up surveillance and waited until [they] confirmed that [Maye] was 

inside” to execute the warrant. The detectives, thus, “actually executed [the warrant] in the early 

morning hours of the 25th[.]” 

 Meeks further testified that “there were additional times that [the] reliable informant had 

been to that same location and observed quantities of cocaine for sale.” Specifically, he stated 

that on or near May 1, 2001, the informant advised that he or she had been at that location and 

observed the cocaine. However, because the informant had observed this activity more than 72 

hours prior to reporting it to Detective Meeks, Detective Meeks was “unable to obtain a search 

warrant based on that information at that time.” 

 On cross-examination, Detective Meeks agreed that “all other information with regard to 

this prior visit to this hotel room with regard to Shawn Maye, so forth, [was] exactly the same, 
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i.e., it was several weeks prior to May 14th, 2001.” He further explained the police department 

“practice” with regard to search warrants as follows: 

Typically, the detective who obtains a search warrant will be the 

detective who completes the briefing and executes the search 

warrant. 

Nevertheless, when he left for assignment in Oklahoma, he left the search warrants on his desk 

“to be executed if work needed to be done or if [other officers] needed something to do.” 

After hearing argument by the parties, the trial court held: 

I think the delay has been sufficiently explained and it still falls 

within the reasonable, practical reason for having the delay and it’s 

not an unusual delay and I am going to deny the motion to 

suppress. 

During Maye’s subsequent trial, Detective Taylor testified that, prior to being called back 

to the motel room on May 25, 2001, a “gentleman . . . that worked for the motel and a female 

maid” “had been in there, had been into the room.” He stated that his “understanding was, [the 

VCR] was knocked off, the drugs had fallen out of it and the drugs were replaced and that’s 

when they called [the police].” Detective Taylor acknowledged that, “[i]n [his] judgment,” the 

door to the motel room was in such a state that it “couldn’t be secured.” He also acknowledged 

that no fingerprints were found on the bag of cocaine. 

Pursuant to an agreement with the Commonwealth, Brooks testified on behalf of the 

Commonwealth. Brooks stated that he had been living at the motel with Maye for approximately 

five months prior to the “incident” and that Maye had “rented” the room. He testified that he had 

purchased the gun that the detectives found in the room. Specifically, he stated that he and Maye 

looked for the gun “together,” that Maye gave him the money to buy the gun, but that he made 

the actual purchase because Maye did not have identification and because Brooks knew the 

“people” at the store. He further testified that he carried the gun, that he kept it in his car “for it 
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to be visible,” and that the gun was in the car when he and Maye would go “out or whatever.” 

He also acknowledged that he had seen Maye “handling” the gun. 

With regard to the VCR, Brooks testified that the VCR belonged to Maye and that he had 

been with Maye when Maye had purchased it, approximately two months prior to the day the 

search warrants were executed. He acknowledged that he “didn’t even know whether [the VCR] 

was hooked up, really” and stated that he never “showed a movie on it,” nor saw Maye “show a 

movie on it.” In response to questioning by the court, Brooks stated that he never sold drugs, but 

had used drugs himself. He testified that he obtained the drugs he used from Maye. 

Maye’s counsel subsequently conceded that if the trial court were to find that Maye 

possessed the drugs found in the VCR, he would not argue “that’s not possession with intent to 

distribute.” Certificates of analysis demonstrated that cocaine was found on the digital scale and 

that the plastic bag contained “155.7 grams” of “Cocaine Hydrochloride.” 

Subsequent to the close of the Commonwealth’s case, Maye’s counsel made a motion to 

strike, which was denied by the trial court. Without presenting evidence, Maye’s counsel rested 

his case and renewed the motion to strike, arguing that the Commonwealth had failed to establish 

that Maye either actually or constructively possessed the cocaine or the gun. The trial court 

disagreed, finding: 

First of all, as far as the possession of cocaine in and of itself, I 

think the evidence is more than sufficient. They found in his 

duffel bag the scales and with comments that he made, I don’t 

think there’s any question about that. 

The question as to possession with intent to distribute may be a 

little more difficult, but when you have, as in this case, a 

co-defendant who takes the stand – and I believe he told the truth. 

He simply tried to avoid saying things that would make it a little 

bit more tight. It’s what you call dumb like a fox. He just simply 

attempted to avoid doing what he had promised to do in exchange 

for a deal with the Commonwealth taking one of the charges away 

from him, in fact, when he pled guilty. His testimony was not 

rebutted in any way, that is, that the VCR was that of Mr. Maye, 
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that he never saw any drug with the exception of that that 

mysteriously appeared on the nightstand between them, which he 

assumed came from Mr. Maye. So I think the connection there is 

sufficient to find the defendant guilty of the charge of possession 

with intent to distribute. 

As to the firearm, once again, Mr. Brooks testifies that he 

purchased it because he had a discussion with Mr. Maye that they 

needed a firearm because Mr. Maye had been robbed at some 

point. They were living in the hotel at the time he purchased it. 

They both handled it. It was in open and obvious sight at the time 

that the police went into the hotel. I believe he testified he never 

actually saw Mr. Maye move it, but Mr. Maye, by his own 

admission to the officers, stated that it could well have his 

fingerprints on it, that he had moved it around from time to time. 

The Court feels the evidence is sufficient to find the defendant 

guilty of that charge as well and so finds. All right. 

The trial court ultimately sentenced Maye to serve five years in prison on the charge of 

possession of a firearm, with three years suspended; five years on the charge of possession of a 

firearm while in possession of a controlled substance; and ten years on the charge of possession 

of cocaine with intent to distribute, with nine years suspended. 

II. Analysis 

 Maye raises two contentions on appeal. First, he contends the trial court erred in refusing 

to grant his motion to suppress because the police failed to execute the search warrants in 

conformity with the “forthwith” requirement of Code § 19.2-56, and thus violated his Fourth 

Amendment rights. Second, he argues the trial court erred in finding the evidence sufficient to 

prove that he constructively possessed either the gun or the cocaine. We disagree. 

A. 

 “In reviewing a trial court’s denial of a motion to suppress, ‘the burden is upon [the 

appellant] to show that the ruling . . . constituted reversible error.’” McGee v. Commonwealth, 

25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Fore v. Commonwealth, 

220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)). We consider the evidence in the light most 
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favorable to the Commonwealth, as the prevailing party below. See Commonwealth v. 

Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). “‘In so doing, we must discard 

the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the 

credible evidence favorable to the Commonwealth and all fair inferences that may be drawn 

therefrom.’” Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998) 

(quoting Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988)). 

 Further, a defendant’s claim that evidence was seized in violation of the Fourth 

Amendment presents a mixed question of law and fact that we review de novo on appeal. See

Ornelas v. United States, 517 U.S. 690, 691 (1996). Because “the requirements of the Virginia 

statutes controlling the issuance of search warrants and forbidding searches without a warrant . . . 

are in substance the same as those contained in the Fourth Amendment,” Kirby v. 

Commonwealth, 209 Va. 806, 808, 167 S.E.2d 411, 412 (1969), in reviewing the trial court’s 

determination of whether the search warrants were executed in a timely manner, we therefore 

“give deference to the factual findings of the trial court and independently determine whether the 

manner in which the evidence was obtained meets the requirements of [Code § 19.2-56 and] the 

Fourth Amendment.” Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 

(2002); see also Turner v. Commonwealth, 14 Va. App. 737, 742, 420 S.E.2d 235, 238 (1992) 

(noting that Code § 19.2-56 includes “a codification of the constitutional requirement that the 

search must be conducted while probable cause continues to exist”). 

 Code § 19.2-56 contains two time limitations, a fifteen-day bar and a “forthwith” 

requirement. The fifteen-day bar “serves to extinguish absolutely the viability of a search 

warrant if not executed within fifteen days, regardless of circumstances.” Turner, 14 Va. App. at 

740, 420 S.E.2d at 237. The “forthwith” requirement, on the other hand, “has an independent 

substantive meaning,” id. at 742, 420 S.E.2d at 238, and is intended to “define[]the policy of the 
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Commonwealth that search warrants be executed as soon as reasonably practical [and] while 

probable cause continues to exist.” Id. at 740, 420 S.E.2d at 237. However, although the 

language of Code § 19.2-56 does “codify[] the constitutional mandate . . . that probable cause 

must [] exist at the time a search warrant is executed,” id. at 743, 420 S.E.2d at 239, the statute 

“goes beyond that.” Id. at 742, 420 S.E.2d at 238. That is, we have interpreted the “forthwith” 

provision as requiring something more than a mere showing of the continued existence of 

probable cause: specifically, that “police officers [] execute[d] the warrant with reasonable 

dispatch and without undue delay.” Id. at 743, 420 S.E.2d at 239. 

Here, Officer Meeks clearly executed the search warrants within the fifteen-day period 

prescribed by Code § 19.2-56. This does not, however, end our inquiry into whether the 

warrants were executed in a timely manner. As we noted in Turner, 

By establishing a fifteen-day limitation period in Code § 19.2-56, 

the General Assembly did not intend to provide that search 

warrants executed within that time would be conclusively 

presumed to have been executed timely. Such an interpretation 

would render the “forthwith” language of the statute meaningless, 

a result that we cannot attribute to the legislature. 

Id. at 742, 420 S.E.2d at 238. Accordingly, the dispositive question here is whether the officers 

executed the search warrants “forthwith,” as required by Code § 19.2-56, and before probable 

cause had dissipated, as required by both the Virginia statute and the Fourth Amendment. 

 As we explained in Turner, “forthwith” does not require that a search warrant be 

executed “immediately or as soon as physically possible.” Id. (citing United States v. Wilson, 

491 F.2d 724, 725 (6th Cir. 1974)). Similarly, “[i]t does not mandate that officers must 

immediately execute the search warrant without regard to the circumstances that obtain.” Id. 

Rather, we have interpreted “forthwith” as requiring the execution of search warrants “with 

reasonable dispatch and without undue delay,” in order “‘to lessen the possibility that the facts 

upon which probable cause was initially based do not become dissipated.’” Id. (quoting United 
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States v. Nepstead, 424 F.2d 269, 271 (9th Cir. 1970)). Ultimately, then, “forthwith” is meant to 

embody “a practical and flexible standard which must conform to the necessities of 

circumstances.” Id. 

Under the circumstances of this case, we find no error in the trial court’s determination 

that Detective Meeks executed the warrant with “reasonable dispatch and without undue delay.” 

Id. Although the ten-day delay between the issuance of the warrant and its first attempted 

execution is somewhat troublesome, we noted in Turner that one relevant consideration as to 

whether a warrant was executed “forthwith” is whether there are “other competing law 

enforcement interests which preclude an immediate execution of the warrant.” Id. at 747 n.2, 

420 S.E.2d at 241 n.2. Here, Detective Meeks testified that it was standard police department 

“practice” for a warrant to be executed only in the presence of the officer who obtained the 

warrant, so that the investigating officer could brief the other officers involved prior to the 

search. 2 After Detective Meeks obtained the warrants on the evening of May 14, 2001, he was 

on special assignment on May 15 and 16, he was “signed off duty” on May 17 and May 18, and 

he was on assignment in Oklahoma on May 19, 20, 21 and 22. Detective Meeks attempted to 

 2

 We note that there is some conflict between Officer Meeks’ testimony that it was 

“standard police practice” for the police officer who obtains a search warrant to be present when 

the warrant is executed, and his testimony that he left these warrants on his desk while he was in 

Oklahoma in case any of the other police officers “needed something to do.” It certainly makes 

sense to have the investigating officer present when a search warrant is executed whenever it is 

practical to do so. Moreover, in the absence of evidence that any of the other police officers 

actually had an opportunity to execute the warrants, we cannot conclude that the trial court erred 

in finding that the delay had been “sufficiently explained” by Detective Meeks. 
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execute the warrant immediately after his return, on May 23, 2001.3

 Detective Meeks’ 

job-related absences constitute a “competing law enforcement interest” that prevented him from 

attempting to execute the warrant until his return from Oklahoma. We agree with the trial 

court’s conclusion that the eleven-day delay had been “sufficiently explained” by Detective 

Meeks and that the search warrants were therefore executed as soon as reasonably practicable 

under the circumstances. 

In fact, in the context of a staleness challenge, we specifically have recognized that an 

officer’s delay in procuring an arrest warrant for a period of “eleven” days, partly because the 

officer was handling other cases or had days off, did not invalidate the warrant. Perez v. 

Commonwealth, 25 Va. App. 137, 140, 486 S.E.2d 578, 580 (1997) (noting that, aside from 

cases where allegations are that the warrant itself is suspect because the information on which it 

rested was too old to present probable cause, “‘[c]ases in which staleness becomes an issue 

 3

 Because Maye was not present at the motel at that time, the officers did not execute the 

warrant until the following evening. We have previously recognized that, where a search 

warrant is issued for both a premises and its occupant, it may be appropriate to delay the 

execution of the search warrant on the premises until the occupant is present, but only if probable 

cause for both searches continues to exist. See Turner, 14 Va. App. at 747, 420 S.E.2d at 241 

(holding that a search warrant was executed “forthwith” despite an eleven-day delay between the 

issuance of the warrant and its execution where the warrant specified that both a resident and its 

occupant were to be searched, and the warrant was executed “immediately after learning that the 

described occupant had returned” to the premises). Because probable cause for this search had 

not dissipated when the warrants were executed, see infra, this one-day delay would not – 

standing alone – render the search untimely. See id.; see also Whitaker v. Commonwealth, 37 

Va. App. 21, 553 S.E.2d 539 (2001) (holding that search warrant was executed “forthwith” 

despite six-day delay between the warrant’s issuance and its execution where the defendant was 

absent from the premises for the entire six-day period, the warrant was executed immediately 

after the defendant returned, and the officers had previously been informed that the defendant 

kept two attack dogs in the house); cf. Commonwealth v. Moss, 14 Va. App. 750, 752, 420 

S.E.2d 242, 243 (1992) (holding that a search warrant was executed “forthwith” despite a 

five-day delay between the issuance of the warrant and its execution where “the reason for the 

delay was to permit the [] warrant to be executed concurrently with a search warrant for another 

apartment in the same building”). 

arise’” when “‘the facts alleged in the warrant may have been sufficient to establish probable 

cause when the warrant was issued, but the government’s delay in executing the warrant possibly 
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tainted the search’” (quoting United States v. McCall, 740 F.2d 1331, 1336 (4th Cir. 1984))). As 

set forth above, there is no evidence here that the detective’s delay in executing the warrant 

resulted from anything other than “competing law enforcement interests” and/or reasonable 

police investigative practices. Further, there is no evidence that the delay potentially tainted the 

search. 

However, the question of whether the police complied with the requirements of Code 

§ 19.2-56 and the Fourth Amendment also requires a determination of whether probable cause 

continued to exist at the time the warrant was executed. See Turner, 14 Va. App. at 740, 420 

S.E.2d at 237 (“[T]he question whether the police officers complied with the ‘forthwith’ 

requirement necessarily entails a determination whether probable cause continued to exist at the 

time the warrant was executed . . . .”). Under the circumstances of this case, there is no evidence 

that probable cause had dissipated by the time the warrants were executed. 

 “‘[A] warrant based on a known presence of contraband at the premises rests . . . on the 

expectation that the contraband will remain there until the warrant is executed.’” Id. at 745, 420 

S.E.2d at 240 (quoting United States v. Garcia, 882 F.2d 699, 702 (2d Cir. 1989) (citing Wayne 

R. LaFave, Search and Seizure 701 (1978))). 

When delay occurs between the issuance and execution of a search 

warrant, whether probable cause to search continues to exist at the 

time the warrant is executed depends on “the facts and 

circumstances of the case, including the nature of the unlawful 

activity alleged, the length of the activity and the nature of the 

property to be seized.” 

Id. (quoting McCall, 740 F.2d at 1336). 

“Probable cause, as the very name implies, deals with probabilities. 

These are not technical; they are factual and practical 

considerations in every day life on which reasonable and prudent 

men, not legal technicians, act.” Derr v. Commonwealth, 242 Va. 

413, 421, 410 S.E.2d 662, 666 (1991) (quoting Saunders v. 

Commonwealth, 218 Va. 294, 300, 237 S.E.2d 150, 155 (1977)). 

Probable cause exists where the totality of the circumstances set 
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forth in the affidavit supports a common sense decision by the 

magistrate that “there is a fair probability that contraband or 

evidence of a crime will be found in a particular place.” Illinois v. 

Gates, 462 U.S. 213, 238 (1983). “[P]robable cause is a fluid 

concept — turning on the assessment of probabilities in particular 

factual contexts — not readily, or even usefully, reduced to a neat 

set of legal rules.” Id. at 232. Because it is a fluid concept based 

on probabilities, the continued existence of probable cause at a 

particular time is dependent upon the circumstances. So long as 

probable cause continues to exist, the search will be valid. See 

[United States v. Bedford, 519 F.2d 650, 655 (3d Cir. 1975)]. 

Id. at 744, 420 S.E.2d at 239. 

Here, the warrants for the motel room and Maye’s person were issued based upon 

probable cause to believe that “a quantity of cocaine that was available for sale” would be found 

at Maye’s motel room. “The delay of eleven days between issuing the warrant and the search, 

standing alone, did not vitiate the reasonable belief that contraband would be on the premises and 

in the possession of” Maye, “the described occupant.” Id. at 746, 420 S.E.2d at 240. The nature 

of the activity in which the informant observed Maye engage would lead one reasonably to 

believe that the room was used exclusively for the distribution of contraband and that evidence 

of such activity would still be located in the motel room when the officers conducted the search. 

Indeed, the drugs were described as a “quantity” significant enough for “sale.” Further, 

approximately two weeks before the issuance of the warrant, the informant advised Detective 

Meeks that he/she had been “to that same location and observed quantities of cocaine for sale” 

on a prior occasion. These facts reasonably suggest a continuing enterprise. In fact, we have 

explicitly held that “[t]he selling of drugs, by its nature, is an ongoing activity.” Id. 

Consequently, the police officers could have reasonably concluded that the contraband 

remained at the motel after the informant left and remained there until the warrant was executed. 

Moreover, as set forth above, “[i]t is not necessary that the facts support this conclusion beyond a 
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reasonable doubt but only that they support the probability of the conclusion.” Huff v. 

Commonwealth, 213 Va. 710, 717, 194 S.E.2d 690, 696 (1973). 

Accordingly, we hold that under the circumstances of this case, Detective Meeks, by 

waiting eleven days to execute the warrant, did not violate either the “forthwith” provision of the 

Virginia statute or the Fourth Amendment. As the trial court ultimately determined, the facts 

supported the reasonable inference that the drugs could still be found at the motel and/or on 

Maye’s person, as well as the reasonable inference that Detective Meeks executed the warrant as 

soon as reasonably practicable under the circumstances.4 

B. 

 “When the sufficiency of the evidence in a criminal case is challenged on appeal, we 

must view the evidence and all reasonable inferences fairly deducible therefrom in the light most 

favorable to the Commonwealth.” Walton v. Commonwealth, 255 Va. 422, 425-26, 497 S.E.2d 

869, 871 (1988) (citing Dukes v. Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 

(1984)). “Great deference must be given to the factfinder who, having seen and heard the 

witnesses, assesses their credibility and weighs their testimony.” Id. at 426, 497 S.E.2d at 871 

(citing Saunders v. Commonwealth, 242 Va. 107, 113, 406 S.E.2d 39, 42 (1991)). Thus, a trial 

court’s judgment will not be disturbed on appeal “unless it is plainly wrong or without evidence 

to support it.” Id. (citing Code § 8.01-680; Dukes, 227 Va. at 122, 313 S.E.2d at 383). 

In order to convict a person of illegal possession of contraband, “proof of actual 

possession is not required; proof of constructive possession will suffice.” Id. “Constructive

 4

 As in Turner, “[b]ecause we hold that the officers complied with . . . Code § 19.2-56 

and with the constitutional continuing probable cause requirement,” we do not address the issue 

of “whether a statutory violation, without a constitutional one, requires suppression of the 

evidence obtained as a result of the violation.” Turner, 14 Va. App. 748 n.3, 420 S.E.2d 242 n.3. 

possession may be established when there are ‘acts, statements, or conduct of the accused or 

other facts or circumstances which tend to show that the [accused] was aware of both the 
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presence and character of the substance and that it was subject to his dominion and control.’” Id.

(quoting Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986) (internal 

quotations omitted)). “Circumstantial evidence may be sufficient to prove possession, as long as 

it excludes all reasonable hypotheses of innocence flowing from the evidence.” Wells v. 

Commonwealth, 32 Va. App. 775, 781, 531 S.E.2d 16, 19 (2000). Nevertheless, the “issue upon 

appellate review is not whether ‘there is some evidence to support’ these hypotheses” of 

innocence. Commonwealth v. Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003). “The 

issue is whether a reasonable [fact finder], upon consideration of all the evidence, could have 

rejected” the defendant’s theories of innocence and found him or her guilty of the charged 

offenses beyond a reasonable doubt. Id. 

So viewed, we note that 

[a]n accused’s mere proximity to an illicit drug . . . is not sufficient 

to prove possession. [Drew, 230 Va. at 473, 338 S.E.2d at 845]. 

In addition, ownership or occupancy of the premises where the 

drug is found does not create a presumption of possession. Code 

§ 18.2-250.1(A); Garland v. Commonwealth, 225 Va. 182, 184, 

300 S.E.2d 783, 784 (1983). Nonetheless, these factors may be 

considered in deciding whether an accused possessed the drug. 

Lane v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 

(1982). 

Walton, 255 Va. at 426, 497 S.E.2d at 872. Moreover, as stated above, “[p]ossession need not be 

actual, exclusive, or lengthy in order to support a conviction.” Wells, 32 Va. App. at 781, 531 

S.E.2d at 19. Rather, the statutes criminalize constructive or joint possession of contraband “of 

any duration.” Id. (emphasis added); see also Archer v. Commonwealth, 225 Va. 416, 418, 303 

S.E.2d 863, 863-64 (1983). 

 As it pertained to the firearm, the evidence here clearly proved, as the trial court found, 

that Maye and Brooks bought the gun together and that Maye handled the gun on occasion. 

Further, the gun was found within Maye’s reach, as well as within open and obvious view of 
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both Maye and Brooks. Accordingly, we find no error in the trial court’s conclusion that the 

evidence supported Maye’s conviction for possession of a firearm. 

As to the cocaine, while we recognize that the motel door was not “secure” when the 

officer returned and found the drugs inside the VCR, we must also recognize that: (1) the 

officers found cocaine on the digital scales in the duffel bag that Maye admitted belonged to him; 

(2) Brooks testified that the VCR belonged to Maye and that he did not know if the VCR was 

ever “hooked up”; (3) Brooks testified that Maye provided him with cocaine; (4) Maye possessed 

a large quantity of cash when searched by the officers; (5) the informant identified Maye to 

Detective Meeks as the person related to the cocaine he or she had observed for sale in that 

particular motel room; and (6) Maye made several suspicious statements to the officers, claiming 

that there was no “cocaine” on the digital scales and that he should not be arrested because the 

officers initially failed to “find anything.” Based upon the totality of this evidence, we find that 

a reasonable fact finder could have rejected Maye’s claims that the drugs did not belong to him 

and could have found that the evidence supported his conviction in this regard beyond a 

reasonable doubt. 

For the reasons stated above, we affirm Maye’s convictions. 

Affirmed.
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Benton, J., concurring. 

I disagree with the majority opinion’s conclusion that the evidence in this case satisfied 

the “forthwith” requirement of Code § 19.2-56. 

 Code § 19.2-56 contains two time limitations for search warrants: “that the place be 

forthwith searched” and that the warrant shall be voided if “not executed within fifteen days after 

insurance.” As we held in Turner v. Commonwealth, 14 Va. App. 737, 420 S.E.2d 235 (1992), 

the statutory requirement of “‘forthwith’ . . . has an independent substantive meaning” and 

“defines the policy of the state that search warrants, which are the foremost safeguard to protect 

against unreasonable searches proscribed by the Fourth Amendment, are to be executed with 

reasonable dispatch.” Id. at 742, 420 S.E.2d at 238. Thus, the statute’s use of the word 

“forthwith” obviously requires “a reasonable promptness, diligence or dispatch in executing a 

warrant, considering the difficulties actually encountered in attempting to perform the task.” 

United States v. Bradley, 428 F.2d 1013, 1016 (5th Cir. 1970). It does not countenance the 

execution of the warrant at the leisure of the police or when deliberately delayed by the police 

for their own purposes. Id. By construing the statute to require the warrant’s execution with 

“reasonable dispatch and without undue delay,” we have held that “Code § 19.2-56 accords 

police officers a limited amount of flexibility in deciding when to execute search warrants.” 

Turner, 14 Va. App. at 743, 420 S.E.2d at 239. 

 The evidence in the record does not suggest that the delay in this case was “unavoidable, 

necessary, or even desirable.” Id. The warrant was issued on May 14, 2001 and not executed 

until eleven days later, on May 25, 2001. The execution of the warrant was delayed merely 

because the officer who obtained the warrant was engaged in other tasks. The police department 

had no policy, written or otherwise, that required the warrant to be executed by the officer who 

obtained the warrant from the magistrate. The officer who obtained the warrant testified “that is 
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basically the practice [he] found [when he was assigned to] Vice-Narcotics.” He also testified 

that this procedure “typically” allows the officer who obtained the search warrant to be the one 

who “completes the briefing and executes the search warrant.” 

 This informal practice of the vice-narcotics officers is nothing more than a convenience 

to the officers. Indeed, the officer testified that he left “the search warrant on [his] desk” for four 

days to be executed by other officers “if work needed to be done or if [the other officers] needed 

something to do.” He also testified that on the night he went to execute the warrant neither he 

nor any other officer “brief[ed] the problem out beforehand in its actual formal proceeding in 

preparation of executing the search warrant.” The record further establishes that another officer, 

who did not obtain the warrant from the magistrate, signed the warrant as the “executing 

officer.” In other words, the record discloses that the convenience of the officers was in actuality 

the principle that governed executing the warrant. Furthermore, nothing in this record 

establishes that this informal practice has any rational relationship to the search or to good police 

practice or that this informal practice “makes sense” for any law enforcement objective. Indeed, 

as this record establishes, the convenience of this informal practice was subject, in fact, to being 

disregarded if the other officers needed “something to do.” For these reasons, I would hold that 

the evidence in this record failed to establish that the search warrants were “executed with 

reasonable dispatch.” Turner, 14 Va. App. at 742, 420 S.E.2d at 238. 

Oddly, we observed in Turner that the “forthwith” language in Code § 19.2-56 is merely 

“directory.” 14 Va. App. at 740, 747, 748 n.3, 420 S.E.2d at 237, 241, 242 n.3. It bears noting, 

however, that despite Turner’s use of the words “directory” and “directive” in describing the 

forthwith requirement, Turner’s analysis leaves no doubt that the term “forthwith” is a 

mandatory, not directory requirement. Id. at 740, 741, 747, 420 S.E.2d at 239, 241, 243. As 

Turner holds, Code § 19.2-56 reveals the legislature intended “forthwith” to have a meaning 
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independent of the fifteen-day period. Id. at 742, 420 S.E.2d at 238. The opinion also holds that 

the meaning of forthwith is not only “independent,” but “substantive” as well. Id. Moreover, 

compliance in executing the warrant within the fifteen-day period is mandatory, and a failure to 

comply results in an invalid warrant. Id. If we were to read Turner as deeming “forthwith” to be 

directory, its holding would be incongruous because in one place it would mean one statutory 

requirement confers substantive rights, and the other not. Turner expressly holds that “[t]he 

‘forthwith’ requirement has an independent substantive meaning.” Id. 

In addition, the opinions from each jurisdiction that we found persuasive in Turner

interpreted “forthwith” in favor of it conferring substantive rights when the procedure was not 

followed. Thus, we adopted the interpretation in which any delay in executing the warrant 

required the government to prove that the delay was “reasonable.” Id. at 742-43, 420 S.E.2d at 

238-39. We held that a reviewing court must then examine justification for and length of the 

delay to decide the issue of reasonableness. 

Suppression seems clearly to be the remedy when the delay is unreasonable because 

Code § 19.2-56’s forthwith requirement goes to the essence of the statute -- it involves the 

public’s right to be free from unreasonable searches and seizures. We have noted, however, that 

“our Supreme Court has steadfastly refused to extend that rule to encompass evidence seized 

pursuant to statutory violations, absent an express statutory provision for suppression.” 

Troncoso v. Commonwealth, 12 Va. App. 942, 944, 407 S.E.2d 349, 350 (1991); see also Horne 

v. Commonwealth, 230 Va. 512, 518-19, 339 S.E.2d 186, 191 (1986) (holding that “failure to 

bring the accused forthwith before a judicial officer” did not require suppression). 

For these reasons, I concur in the judgment.