COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Elder and Senior Judge Cole 

Argued at Richmond, Virginia 

SHANNON DETRICK CASON 

 OPINION BY 

v. Record No. 2331-99-1 JUDGE LARRY G. ELDER 

 JULY 11, 2000 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

H. Thomas Padrick, Jr., Judge 

 Richard C. Clark, Senior Assistant Public 

Defender (Office of the Public Defender, on 

brief), for appellant. 

 Leah A. Darron, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Shannon Detrick Cason (appellant) appeals from his jury 

trial convictions for one count each of statutory burglary, 

possession of burglary tools, and grand larceny. On appeal, he 

contends the trial court erroneously denied his motion to 

suppress items seized during a search of his moped. He argues 

no evidence established that, at the time of his arrest, he had 

been a "recent occupant" of the moped, as required to justify a 

warrantless search of the moped incident to arrest. We hold 

that the circumstantial evidence was sufficient to establish 

appellant's "recent occupancy" of the moped and that, for this 

reason, the search did not violate the Fourth Amendment. 

Therefore, we affirm appellant's convictions. 
I. 

FACTS 

 On November 11, 1998, Virginia Beach Police Officer William 

Matos responded to a call of "shots [being] fired" into the air 

by "a young black male." When he arrived at the scene, he 

observed "two subjects that matched the description on the call 

that we received." Appellant was one of those two subjects. 

When Matos first arrived, he saw appellant "coming around [a 

small] corner and just standing there" with another person next 

to a fence. Appellant was holding a motorcycle helmet, but 

Matos did not see a motorcycle or moped. Officer Matos told 

appellant "what was going on and why he was there and that [he] 

need[ed] to pat [appellant] down for weapons." Appellant "said, 

Okay." Matos patted appellant down and recovered a pocketknife 

from his pocket. At some point after Matos arrived, a "third 

subject" came out of an apartment building and joined appellant 

and his companion. 

 Thereafter, Matos learned of an outstanding "pick-up order 

from juvenile court" for appellant. Matos took appellant into 

custody on the order and placed him in handcuffs. Officer R.J. 

Michael then arrived on the scene. As Matos and Michael were 

walking appellant toward Michael's vehicle, appellant said, 

"Hold on. I need to give my moped to my friend. My moped is in 

the yard." After putting appellant in the back seat of 

Michael's vehicle, Matos asked appellant where the moped was 

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located. Appellant responded that it was in the backyard, "not 

more than twenty-five, thirty feet from this yard." Matos also 

said the distance from where appellant was "in the back seat of 

the car to the back yard where the moped was brought out from 

[was] approximately fifty to seventy-five feet." 

 Matos "called [to] one of [appellant's] friends and said, 

Hey, does he have a moped in the back yard? The guy said, Yes," 

retrieved the moped and brought it to Officer Matos. When 

retrieving the moped, appellant's friend went in "the same 

general direction" from which appellant had come when Matos 

first saw appellant approaching the scene. Matos did not see 

appellant with the moped and first saw it when appellant's 

friend retrieved it and brought it to Matos. 

 Matos began searching the moped without asking appellant 

for permission. When Matos had trouble opening the moped's 

under-seat "compartment," he asked appellant for help, and 

appellant told him how to open it. Inside the compartment, 

Matos found a flashlight, pry bar, and an old coin. Matos said 

he searched the compartment because the original call to which 

he responded was for "shots fired." He testified that for his 

own safety and the safety of the citizens in the area, he wanted 

to make sure there was no gun in appellant's moped before he 

turned it over to appellant's friend. Appellant originally said 

the moped belonged to him, but when Matos asked him if he was 

sure he wanted Matos to give the moped to the other person, 

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appellant said, "yeah, that it was partly his [friend's] 

anyway," because he and the friend had each paid for one-half 

the moped. 

 Appellant was charged with statutory burglary, possession 

of burglary tools, and grand larceny from Dennis Wyand.1

 Prior to trial, appellant moved to suppress the items 

seized from the moped. He argued that the 

"search-incident-to-arrest" exception to the warrant requirement 

did not apply because the evidence did not establish appellant's 

recent occupancy of the moped. Appellant also argued that he 

did not consent to the search and that the search exceeded the 

scope of the original pat-down of appellant for weapons. The 

prosecutor argued that appellant's possession of the motorcycle 

helmet and his admission that the moped was his were sufficient 

to prove he was a recent occupant. He also argued that exigent 

circumstances justified the search in light of the fact that 

Officer Matos responded to a shots fired complaint and that 

appellant fit the description of the shooter. 

 1

 Appellant also was indicted for two additional counts of 

grand larceny, one based on the theft of a firearm belonging to 

Tamela Wyand and the other on the theft of other property from 

Tamela Wyand having a value of $200 or more. The trial court 

granted appellant's motion to strike the evidence on the grand 

larceny charge involving the firearm, and the jury acquitted 

appellant of the grand larceny of other property from Tamela 

Wyand. 

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 The trial court denied the motion to suppress, ruling, 

inter alia, that the evidence established appellant was in 

recent possession of the moped. 

II. 

ANALYSIS 

 At a hearing on a defendant's motion to suppress, the 

Commonwealth has the burden of proving that the challenged 

action did not violate the defendant's constitutional rights. 

See Simmons v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 

659 (1989). On appeal, we view the evidence in the light most 

favorable to the prevailing party, here the Commonwealth, 

granting to it all reasonable inferences fairly deducible 

therefrom. See Commonwealth v. Grimstead, 12 Va. App. 1066, 

1067, 407 S.E.2d 47, 48 (1991). "[W]e are bound by the trial 

court's findings of historical fact unless 'plainly wrong' or 

without evidence to support them[,] and we give due weight to 

the inferences drawn from those facts by resident judges and 

local law enforcement officers." McGee v. Commonwealth, 25 Va. 

App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing 

Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 

1663, 134 L. Ed. 2d 911 (1996)). However, we review de novo the 

trial court's application of defined legal standards such as 

probable cause and reasonable suspicion to the particular facts 

of the case. See Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663. 

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 Pursuant to Chimel v. California, 395 U.S. 752, 89 S. Ct. 

2034, 23 L. Ed. 2d 685 (1969), an arresting officer may 

"search the person arrested in order to 

remove any weapons that the latter might 

seek to use in order to resist arrest or 

effect his escape. . . . In addition, it is 

entirely reasonable for the arresting 

officer to search for and seize any evidence 

on the arrestee's person in order to prevent 

its concealment or destruction. And the 

area into which an arrestee might reach in 

order to grab a weapon or evidentiary item 

must, of course, be governed by a like 

rule." 

Glasco v. Commonwealth, 257 Va. 433, 437, 513 S.E.2d 137, 139 

(1999) (quoting Chimel, 395 U.S. at 763, 89 S. Ct. at 2040). 

 In the years following Chimel, the Court recognized the 

difficulty in applying its holding to cases involving the search 

of a vehicle incident to arrest. See id. As a result, in New

York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 68 L. Ed. 2d 768 

(1981), the Court "established a 'bright-line' rule to govern 

such searches: 'when a policeman has made a lawful custodial 

arrest of the occupant of an automobile, he may, as a 

contemporaneous incident of that arrest, search the passenger 

compartment of that automobile.'" Glasco, 257 Va. at 437-38, 

513 S.E.2d at 139-40 (quoting Belton, 453 U.S. at 460, 101 

S. Ct. at 2864 (footnote omitted)). Such a search may encompass 

"any containers found within the passenger compartment," 

including "closed or open glove compartments, consoles, or other 

receptacles." Belton, 453 U.S. at 460 & n.4, 101 S. Ct. at 2864 

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& n.4. The Court also has made clear that the arrestee need not 

be in the vehicle at the time of the arrest or incident search. 

See Glasco, 257 Va. at 438, 513 S.E.2d at 140. Pursuant to 

Belton, "'officers may conduct valid searches incident to arrest 

even when the officers have secured the suspects in a squad car 

and rendered them unable to reach any weapon or destroy 

evidence.'" Id. at 439, 513 S.E.2d at 140 (quoting United 

States v. Willis, 37 F.3d 313, 317 (7th Cir. 1994)). As long as 

the arrestee is the "'recent occupant'" of the vehicle searched, 

the search does not violate the Fourth Amendment. Id. at 437, 

513 S.E.2d at 139 (quoting Belton, 453 U.S. at 460, 101 S. Ct. 

at 2864). Finally, the Virginia Supreme Court has held that an 

arrestee is the "recent occupant" of a vehicle even if the 

police officer does not initiate contact until after the 

arrestee has left his vehicle and regardless of whether the 

arrestee was aware of the officer's presence prior to exiting 

the vehicle. See id. at 440-41, 513 S.E.2d at 141-42 

(recognizing a split of authority in that "[a] number of 

jurisdictions have held that an arrestee is an occupant of a 

vehicle only when the police officer arrests or at least 

initiates contact with the defendant while the defendant is 

inside the automobile"). Therefore, the only prerequisites to 

the lawful search of an automobile incident to arrest are that 

the search is contemporaneous with the arrest and the arrestee 

is a recent occupant of the vehicle. See Glasco v. 

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Commonwealth, 26 Va. App. 763, 773, 497 S.E.2d 150, 154 (1998), 

aff'd, 257 Va. 433, 513 S.E.2d 137 (1999). 

 Appellant contends the evidence is insufficient to 

establish his "recent occupancy" of the moped because Officer 

Matos did not see appellant "occupying" or operating the moped 

and established, at most, his joint ownership of the moped. We 

disagree. 

 Any fact which may be proved with direct evidence also may 

be established with circumstantial evidence. See Stultz v. 

Commonwealth, 6 Va. App. 439, 442-43, 369 S.E.2d 215, 217 

(1988). However, when proof of guilt is based on circumstantial 

evidence, the evidence as a whole must exclude all reasonable 

hypotheses of innocence flowing from it. See Hamilton v. 

Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993). 

Here, although Officer Matos did not see appellant on the moped 

as he approached the scene, the circumstantial evidence 

established that appellant had been in recent possession of the 

moped. Matos saw appellant, who was carrying a motorcycle 

helmet, approach from the location in a nearby yard where 

appellant later reported the moped was parked. Appellant 

described the location of the moped, indicated the moped was his 

and said he needed to give it to his friend, who shared 

ownership of the moped. Matos then observed one of appellant's 

friends retrieve the moped from the location where appellant had 

reported it was parked. The only reasonable hypothesis flowing 

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from this evidence is that appellant not only owned the moped 

but that he had been in recent possession of it. He was 

carrying a motorcycle helmet, knew the moped's location, and 

voiced a need to transfer possession to his friend, the moped's 

co-owner. In light of these facts, we hold the evidence 

supported the trial court's finding that appellant was in recent 

possession, thereby justifying Officer Matos' search of the 

moped incident to appellant's arrest. 

 For these reasons, we affirm appellant's convictions. 

Affirmed.

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