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 J UDGE 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 vi olation of Code § 18.2-308.4(A)), and possession of cocaine with in tent to distribute (in violatio n of Code § 18.2-248). Maye first contends the trial court erred in finding that po lice executed a search warrant in compliance with the “forthwith” requirement of Code § 19.2-56 an d that it therefore erred in denying his motion to suppress the related evidence. Maye further co ntends that the trial court erred in finding the evidence sufficient to establish that he construc tively possessed the firearm and the cocaine. For the reasons that follow, we affirm Maye’s convictions. I. Background In accord with settled principles, we revi ew the evidence on appeal in the light most favorable to the Commonwealth, as the party prevailing below, granting to it all reasonable- 2 - 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 sa le. 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,” “approxima tely 5’10” tall [weighi ng] about 180 pounds.” Meeks obtained search warrants for the mote l 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 executi on 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 be ds 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, Det ective Sorrell located a gun in the nightstand. The gun was lying in a lower, open portion of th e nightstand, “right next” to “whe re [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 To rres found the bag on the “right side” of the bed- 3 - 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 Mirandarights, 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 “woul d occasionally move it” “from one place to the other when he was cleaning up.” For that reason, Maye acknowle dged that the detectives would find his fingerprints on the gun. Maye also acknow ledged “he was not able to possess a firearm because he was a convicted felon.” With regard to the “duffel bag,” Maye confir med that the bag belonged to him. However, when he overheard Detectives Meeks and Torre s discussing the appare nt “cocaine residue” on the scale, Maye stated “that there was no cocai ne on the scale.” When the detectives placed Maye under arrest for “possessi on 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 st atements “[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 manage r, later that same morning. When Detective Taylor arrived, he found the door to the room “pulle d to, but it wasn’t secure .” He observed that the room “appeared to have been searched by th e 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 possessi on of a firearm after having been convicted of a felony, possession of a firearm while in posse ssion of a controlled subs tance, and possession

1 The detectives also arrested Brooks.- 4 - of cocaine with intent to distri bute. 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 pr ior to the police executing it,” in violation of the Fourth Amendment; and (2) the “search warr ant [was not] executed forthwith” as required by Code § 19.2-56. During the hearing on Maye’s motion to suppr ess, 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 ho urs 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 de tectives 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 wa ited 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 info rmant had observed this activity more than 72 hours prior to reporting it to Detective Meeks, De tective Meeks was “unabl e 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,- 5 - 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 detectiv e who obtains a search warrant will be the detective who completes the briefing and executes the search warrant. Nevertheless, when he left for a ssignment 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 suffici ently explained and it still falls within the reasonable, practical r eason 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 Tayl or testified that, prio r 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 Tayl or acknowledged that, “[i] n [his] judgment,” the door to the motel room was in such a state thatit “couldn’t be secured.” He also acknowledged that no fingerprints were found on the bag of cocaine. Pursuant to an agreement with the Common wealth, Brooks testified on behalf of the Commonwealth. Brooks stated that he had been living at the mote l 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. Specifi cally, he stated that he and Maye looked for the gun “together,” thatMaye gave him the money to buy the gun, but that he made the actual purchase because Maye did not ha ve identification and because Brooks knew the “people” at the store. He further te stified that he carried the gun, thathe kept it in his car “for it- 6 - to be visible,” and that the gun was in the car wh en he and Maye would go “out or whatever.” He also acknowledged that he ha d 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 kn ow 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 que stioning by the court, Brooks statedthat 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 notargue “that’s not posse ssion with intent to distribute.” Certificates of an alysis demonstrated that cocaine was found on the digital scale and that the plastic bag contained “155.7 gr ams” 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. W ithout presenting evidence, Maye’s counsel rested his case and renewed the motion to strike, arguing that the Commo nwealth had failed to establish that Maye either actually or constructively pos sessed the cocaine or the gun. The trial court disagreed, finding: First of all, as far as the possessi on 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 th ings 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, thatthe VCR was that of Mr. Maye,- 7 - 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 gui lty 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 disc ussion with Mr. Maye that they needed a firearm because Mr. Maye had been robbed at some point. They were living in the hot el 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 se rve five years in prison on the charge of possession of a firearm, with three years suspende d; five years on the charge of possession of a firearm while in possession of a controlled subs tance; and ten years on the charge of possession of cocaine with intent to distri bute, with nine years suspended. II. Analysis Maye raises two contentions on appeal. First, he contends th e 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 th e evidence sufficient to prove that he constructively possessed eith er the gun or the cocaine. We disagree.
A. “In reviewing a trial court’ s denial of a motion to suppr ess, ‘the burden is upon [the appellant] to show that the ruling . . . consti tuted reversible error. ’” McGee v. Commonwealth , 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (e n banc) (quoting Fore v. Commonwealth , 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)). We consider the evidence in the light most- 8 - 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 c onflict with that of the Commonwea lth, 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 eviden ce 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 cont ained 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 we re 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 meet s 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 incl udes “a codification of the constitutional requirement that the search must be conducted while prob able 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 ex tinguish absolutely the viability of a search warrant if not executed with in fifteen days, regardless of circumstances.” Turner , 14 Va. App. at 740, 420 S.E.2d at 237. The “forthw ith” requirement, on the other hand, “has an independent substantive meaning,” id. at 742, 420 S.E.2d at 238, and is inte nded to “define[]the policy of the- 9 - Commonwealth that search warrants be executed as soon as reasonably practical [and] while probable cause continue s to exist.” Id. at 740, 420 S.E.2d at 237. However, although the language of Code § 19.2-56 does “codify[] the cons titutional 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 sear ch warrants within th e fifteen-day period prescribed by Code § 19.2-56. This does not , however, end our inqui ry into whether the warrants were executed in a timely manner. As we noted in Turner , By establishing a fifteen-day li mitation period in Code § 19.2-56, the General Assembly did not in tend to provide that search warrants executed within that time would be conclusively presumed to have been executed timely. Such an interpretation would render the “forth with” language of the statute meaningless, a result that we cannot attr ibute to the legislature. Id. at 742, 420 S.E.2d at 238. Accordingly, the dispos itive 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 require d 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 wa rrant without regard to the circ umstances that obtain.” Id. Rather, we have interpreted “forthwith” as re quiring the execution of search warrants “with reasonable dispatch and without und ue delay,” in order “‘to lessen the possibility that the facts upon which probable cause was initially base d do not become dissipated.’” Id. (quoting United- 10 - States v. Nepstead , 424 F.2d 269, 271 (9th Cir. 1970)). Ultimately, then, “forthwith” is meant to embody “a practical and flexible standard wh ich 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 testif ied 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 investigati ng 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 M eeks’ testimony that it was “standard police practice” for the police officer w ho 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 wh en 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 thatthe trial court erred in finding that the delay had been “suffi ciently explained” by Detective Meeks.- 11 - execute the warrant immediatel y 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 elev en-day delay had been “suffici ently explained” by Detective Meeks and that the search warrants were theref ore executed as soon as reasonably practicable under the circumstances. In fact, in the context of a staleness challeng e, we specifically have recognized that an officer’s delay in procuring an arrest warrant for a period of “e leven” days, partly because the officer was handling other cases or had days o ff, 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 “forth with” 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 warran t was executed “forthwith” despite six-day delay between the warrant’s i ssuance 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 wa rrant was executed “f orthwith” despite a five-day delay between the issuance of the warra nt 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 govern ment’s delay in executing the warrant possibly- 12 - 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 th an “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 polic e complied with the requirements of Code § 19.2-56 and the Fourth Amendmen t also requires a determinati on 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 po lice officers complied with the ‘forthwith’ requirement necessarily entails a determination wh ether probable cause con tinued 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 co ntraband 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, includ ing the nature of the unlawful activity alleged, the length of th e 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- 13 - 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 particul ar 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 ex istence 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 a nd Maye’s person were issued based upon probable cause to believe that “a quantity of cocaine that was av ailable 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 th e reasonable belief that contraba nd 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 descri bed 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 loca tion and observed quantities of cocaine for sale” on a prior occasion. These facts reasonably sugges t 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 a nd 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- 14 - reasonable doubt but only that they support th e probability of the conclusion.” Huff v. Commonwealth , 213 Va. 710, 717, 194 S.E.2d 690, 696 (1973). Accordingly, we hold that under the circumst ances of this case, Detective Meeks, by waiting eleven days to execute the warrant, did not violate either the “forth with” provision of the Virginia statute or the Fourth Amendment. As the trial court ultimately determined, the facts supported the reasonable inferen ce that the drugs could still be found at the motel and/or on Maye’s person, as well as the reasonable inferen ce 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 inferen ces 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 pers on of illegal possession of contraband, “proof of actual possession is not required; proof of c onstructive 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 viol ation, 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 ‘act s, statements, or conduct of the accused or other facts or circumstances which tend to s how that the [accused] was aware of both the- 15 - 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 ma y be sufficient to prove possession, as long as it excludes all reasonable hypotheses of innocen ce 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 whethe r ‘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 innocen ce 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 occupa ncy of the premises where the drug is found does not create a pr esumption 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 stat utes 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 eviden ce 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- 16 - both Maye and Brooks. Accordingly, we find no e rror in the trial court’ s conclusion that the evidence supported Maye’s convicti on 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 r ecognize 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 Ma ye 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 coca ine 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 a nd that he should not be arrested because the officers initially failed to “find anything.” Base d 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 suppor ted his conviction in this regard beyond a reasonable doubt. For the reasons stated above, we affirm Maye’s convictions. Affirmed.- 17 - 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 fo r 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 th at search warrants, which are th e 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 enco untered 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 deliberat ely delayed by the police for their own purposes. Id. By construing the statute to re quire 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 th e 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 o fficer who obtained the warra nt testified “that is- 18 - basically the practice [he] found [w hen he was assigned to] Vice-Nar cotics.” He also testified that this procedure “typically” allows the officer who obtained the search warrant to be the one who “completes the briefing and ex ecutes the search warrant.” This informal practice of the vice-narcotic s officers is nothing mo re than a convenience to the officers. Indeed, the officer testified that he left “the sear ch warrant on [his] desk” for four days to be executed by other officers “if work neededto 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 establishe s that another officer, who did not obtain the warrant from the magi strate, 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 warr ant. Furthermore, nothing in this record establishes that this informal practice has any rati onal 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 practi ce 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 establis h 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 Turnerthat the “forthw ith” 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 legislatur e intended “forthwith” to have a meaning- 19 - 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 “inde pendent,” but “substantive” as well. Id. Moreover, compliance in executing the warrant within the fi fteen-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 inde pendent substantive meaning.” Id. In addition, the opinions from each jurisdic tion that we found persuasive in Turner interpreted “forthwith” in favor of it conferring substantive ri ghts when the procedure was not followed. Thus, we adopted the interpretation in which any delay in executing the warrant required the government to prove thatthe 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 issu e of reasonableness. Suppression seems clearly to be the remedy when the delay is unreasonable because Code § 19.2-56’s forthwith requirement goes to th e essence of the statut e -- 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 ex tend that rule to encompass evidence seized pursuant to statutory violati ons, absent an express statut ory 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 judici al officer” did not require suppression). For these reasons, I concur in the judgment.