COURT OF APPEALS OF VIRGINIA

Present: Chie f Judge Felton, Judge s Elder and Beales Argued at Richmond, Virginia

WALTER D. BOOKER, JR. MEMORANDUM OPINION * BY v. Record No. 0956-07-1 JUDGE LARRY G. ELDER JULY 1, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH James C. Hawks, Judge S. Jane Chittom, Appellate De fender (Office of the Appellate Defender, on briefs), for appellant. Robert H. Anderson, III, Seni or Assistant Attorney General (Robert F. McDonnell, Attorney General; Office of the Attorney General, on brief), for appellee.
Walter D. Booker, Jr. (appellant), appeals from his convictions for possessing cocaine and heroin with an intent to distribute, entered on his conditional guilty pleas. On appeal, he contends the trial court erroneous ly denied his motion to suppre ss the fruits of a seizure and search of his car following his arrest pursuant to an outstanding warrant. We hold the evidence, viewed in the light most favorable to the Commo nwealth, supports the tria l court’s ruling. Thus, we affirm the challenged convictions. Examining a trial court’s ruling on a motion to suppress evidence allegedly seized in violation of the Fourth Amendment “presents a mi xed question of law and fact that we review de novo on appeal. In making such a determination, we give deference to the factual findings of the trial court and independently determine wh ether the manner in which the evidence was

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - obtained [violated] the Fourth Amendment.” Murphy v. Commonwealth , 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002) (citations omitted); see also Ornelas v. United States , 517 U.S. 690, 691, 699, 116 S. Ct. 1657, 1659, 1663, 134 L. Ed. 2d 911, 916, 920 (1996). The court is not required to make explicit findings of fact to support it s ruling, and when it does not make such findings, we view the evidence in the light most favorable to the prevailing party, granting to the evidence all reasonable inferences fair ly deducible therefrom. Commonwealth v. Grimstead , 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). On appeal of a ruling denying a motion to suppress, the defendant has the burden to show that the trial court’s ruling constitute d reversible error. Murphy , 264 Va. at 573, 570 S.E.2d at 838. Appellant contends the only c onstitutional basis for the sear ch of the white Mitsubishi would have been under the theory of Thornton v. United States , 541 U.S. 615, 124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004), which permits the search of the passenger compartment of a car when an occupant or “recent occupant ” of the car is arrested. Appe llant contends that because the evidence failed to prove he was a recent occupant of the vehicle, the search was unreasonable. He also argues that the presence of the marijuana on the passenger’s seat of the car gave the police probable cause, at most, to seize the mariju ana but not to search or impound the vehicle. Because we hold the evidence, viewed in th e light most favorabl e to the Commonwealth, supports the trial court’s conclusi on that the officers had probab le cause to search the white Mitsubishi Diamante and were constitutionally authorized to do so without obtaining a search warrant or making any further showing of exigent circumstances, we affirm the denial of the motion to suppress. Because we hold probable caus e justified the search, we need not consider- 3 - whether the search would have been justified as incident to arrest under the theory that appellant was a sufficiently recent occ upant of the car to invoke Thornton

. 1 Although the Fourth Amendment generally requ ires that “searches be conducted pursuant to a warrant issued by an independent judicial of ficer,” one of the specif ically established and well-delineated exceptions to this requirement is the so-called “automobile exception.” California v. Carney , 471 U.S. 386, 390, 105 S. Ct. 2066, 2068, 85 L. Ed. 2d 406, 412 (1985); see also California v. Acevedo , 500 U.S. 565, 580, 111 S. Ct. 1982, 1991, 114 L. Ed. 2d 619, 634 (1991). Under this exception, “a warrantless search of an automobile, based upon probable cause to believe that the vehicle contained eviden ce of crime in the light of an exigency arising out of the likely disappearance of the vehicle, [ does] not contravene the Warrant Clause of the Fourth Amendment.” Acevedo , 500 U.S. at 569, 111 S. Ct. at 1986, 114 L. E. 2d at 627 (citing Carroll v. United States , 267 U.S. 132, 158-59, 45 S. Ct. 280, 287, 69 L. Ed. 543, 554 (1925)). The capacity of an automobile to be quick ly moved “‘creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible.’” Carney , 471 U.S. at 391, 105 S. Ct. at 2069, 85 L. Ed. 2d at 413 (quoting South Dakota v. Opperman , 428 U.S. 364, 367, 96 S. Ct. 3092, 3096, 49 L. Ed. 2d 1000, 1004 (1976)). Thus, as the Supreme Court recently emphasized, a vehicle search may be conducted if it is based upon “‘facts that would just ify the issuance of a warrant, even though a warrant has not been actually obtained .’” Maryland v. Dyson , 527 U.S. 465, 467, 119 S. Ct. 2013, 2014, 144 L. Ed. 2d 442, 445 (1999) (per curiam) (quoting United States v. Ross , 456 U.S. 798, 809, 102 S. Ct. 2157, 2164-65, 72 L. Ed. 2d 572, 584 (1982)) (emphasis added in Dyson ). “[T]he

1 The Commonwealth contends appellant failed to preserve for appeal his argument that Thornton does not apply to legitimize the search. Because we hold the search was proper under the automobile exception to the warrant clause based on the existence of probable cause to believe the car contained contraband, we also need not consider whether the Thornton argument was preserved.- 4 - automobile exception has no separate exigency requirement.” Id. at 466, 119 S. Ct. at 2014, 144 L. Ed. 2d at 445. “If a car is readily mobile a nd probable cause exists to believe it contains contraband, the Fourth Amendment thus permits po lice to search the vehicle without more.” Pennsylvania v. Labron , 518 U.S. 938, 940, 116 S. Ct. 2485, 2487, 135 L. Ed. 2d 1031, 1036 (1996), quoted with approval in Dyson , 527 U.S. at 467, 119 S. Ct. at 2014, 144 L. Ed. 2d at 445. Further, under such circumstances, officers “may conduct a search of the vehicle that is as thorough as a magistrate could au thorize in a warrant ‘particula rly describing the place to be searched.’” Ross , 456 U.S. at 800, 102 S. Ct. at 2160, 72 L. Ed. 2d at 578. “If probable cause justifies the search of a lawfully stopped vehicle, it justifies th e search of every part of the vehicle and its contents that may c onceal the object of the search.” Id. at 825, 102 S. Ct. at 2173, 72 L. Ed. 2d at 594. Probable cause, “as the very name im plies, deals with probabilities.” Derr v. Commonwealth , 242 Va. 413, 421, 410 S.E.2d 662, 666 (1991). It exists “where the known facts and circumstances are sufficient to warrant a man of reasonable pruden ce in the belief that contraband or evidence of a crime will be found” in the place to be searched. Ornelas , 517 U.S. at 696, 116 S. Ct. at 1661, 134 L. Ed. 2d at 918. Here, Detective Grover’s actions in search ing the car were supported by probable cause developed in part pursuant to the plain view exception to the warrant requirement. See, e.g. , Arnold v. Commonwealth , 17 Va. App. 313, 318, 437 S.E.2d 235, 238 (1993) (recognizing that the plain view doctrine permits an officer to sei ze an object when he is lawfully in a position to “perceive” the object and has probable cause to belie ve it is contraband). The evidence, viewed in the light most favorable to the Commonwealth, established th at while Detective Grover stood outside the car, which was parked on a public street, he illuminated the interior with his flashlight, see Texas v. Brown , 460 U.S. 730, 739-40, 103 S. Ct. 1535, 1542, 75 L. Ed. 2d 502,- 5 - 512 (1983) (holding the use of a flas hlight does not constitute a se arch), and saw marijuana seeds and a strip of green, leafy mariju ana on the car’s front passenger se at. Detective Grover testified that, pursuant to his training and extensive professional expe rience with marijuana, he immediately recognized the items as contraband. Detective Grover al so knew at that time that appellant drove the white Mitsubis hi with some regularity, had lik ely just driven it to the house where he was arrested, and refe rred to the car as “my car” when he responded to Detective Grover’s statement that Grover could see marijuana inside the car. Further, when appellant had arisen from his seat on the porch immediately prio r to his arrest, the officers saw a set of keys “sitting right where” appellant had been sitting. Appellant told his tw o companions, both of whom were sitting “within arm’s reach” of the ke ys, “[O]ne of you grab my keys.” After Officer Johnson and Detective Smith handcuffed appellant and began walking appellant toward Smith’s vehicle, Officer Johnson returned to the porch to retrieve the keys, but they were gone, and appellant’s two companions denied taking the keys or having s een them on the porch. Finally, Detective Grover knew that, at the time of appella nt’s arrest, he had on his person 51 rocks of crack cocaine, 17 capsules of heroin, and over $1000 in U.S. currency. This evidence, taken as a whole, provided Detective Grover with probable cause to believe appellant and his companions did not want the police to gain access to the wh ite Mitsubishi and that it contained drugs or evidence of distribution in addition to the mariju ana residue seen in plain view on the car seat. Because the police had probable cause to beli eve appellant’s car was readily mobile and that one of the other two men at the scene of appellant’s arrest ha d the keys, the “exigent circumstances” prong of the automobile exception was satisfied, regardless of whether the police had time to obtain a search warrant before conducting the search. Further, the detectives’ decisi on to have the vehicle towed to the impound lot before they conducted their thorough search di d not render the search unreasona ble under the circumstances.- 6 - The arrest occurred after dark, and Detective Gr over testified that “the individuals out there [where the arrest took place] are quite hostile to the police.” In a ddition, Detective Grover testified he had “been through numerous schools” providing “train[ing] in hidden compartments and other devices used to conceal narcotics in vehicles,” and that his training instructed “you have to . . . be able to get down under the car an d even raise the car to get up under the dash and in the outside, the air bags,” all of which are “we ll-known hiding places fo r narcotics.” Under the circumstances, the towing of the car and the nature of the search were not unreasonable. See,
e.g. , Ross , 456 U.S. at 800, 825, 102 S. Ct. at 2160, 2173, 72 L. Ed. 2d at 578, 594 (holding that where probable cause supports the se arch of a car, “it justifies the search of every part of the vehicle and its contents that may conceal the object of the search”); Chambers v. Maroney , 399 U.S. 42, 52 & n.10, 90 S. Ct. 1975, 1981-82 & n.10, 26 L. Ed. 2d 419, 428-29 & n.10 (1970) (holding that where officers had pr obable cause to search a vehi cle after arresting all of its occupants “in a dark parking lot in the middle of th e night,” “[a] careful s earch at that point was impractical and perhaps not safe for the officers” and, thus, the officers did not act unreasonably in “tak[ing] the car to the stati on house” and searching it there); United States v. Harwood , 998 F.2d 91, 97 (2d Cir. 1993) (holding probable cause to search a van for LSD permitted police to search the van’s door panel “[b]ecause LSD in blotter form may be stashed anywhere in a vehicle” and that, because the police were “[f]aced with a hostile crowd at the arrest scene,” their decision to search the van “at the police command post several hours after it was seized” did not render the search illegal). For these reasons, we hold the trial court’s denial of appellant’s motion to suppress was not error, and we a ffirm his convictions. Affirmed.