COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Senior Judge Hodges 

Argued at Norfolk, Virginia 

DEBORAH SPIVEY, S/K/A 

 DEBORAH JANE SPIVEY 

 OPINION BY 

v. Record No. 2829-95-1 JUDGE RICHARD S. BRAY 

 JANUARY 14, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

Norman Olitsky, Judge 

 Dianne G. Ringer, Senior Assistant Public 

Defender, for appellant. 

 Eugene Murphy, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Deborah Spivey (defendant) was convicted in a bench trial 

for possessing both cocaine and marijuana with the intent to 

distribute. On appeal, she contends that the trial court 

erroneously declined to suppress evidence resulting from an 

unlawful "no-knock" entry incidental to the execution of a search 

warrant and improperly received into evidence items omitted from 

the related inventory. Defendant also challenges the sufficiency 

of the evidence to support the convictions. Finding no error, we 

affirm the decision of the trial court. 

 In accordance with well established principles, we view the 

evidence in the light most favorable to the Commonwealth. On the 

evening of December 14, 1994, Portsmouth police executed a search 

warrant for defendant's residence. The affidavit of Detective 

Tammy Early given in support of the warrant, together with 
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Early's independent investigation, established that a 

confidential and reliable informant had observed "Debbie" 

distribute cocaine from the premises within the immediately 

preceding seventy-two hours. The informant further advised that 

"Debbie" distributed cocaine daily to "various persons" and "may 

possibly be in possession of a .38 handgun," was "known to have a 

.38." 

 Defendant's son, Duane, reportedly was her cocaine supplier 

and resided within "one city block." Duane frequently "stay[ed]" 

with defendant, often walking to her residence, and had recently 

been arrested for discharging a firearm into an unoccupied 

vehicle. When the warrant was executed, police were unable to 

determine if Duane was present on the property. Confronted with 

the "threat of two weapons," Early concluded that execution of 

the warrant by "knocking and announcing" would imperil the police 

officers and, therefore, authorized a "no-knock" entry, utilizing 

a "ramming" device. 

 Upon entering the residence, police observed defendant 

running from the living room into the kitchen. She was detained, 

and the ensuing search revealed cocaine, marijuana, and related 

paraphernalia throughout the home. A recent Virginia Power bill 

and a "notice" from Western Union, both addressed to defendant at 

the residence, were found on a desk in the living room, and 

cocaine was secreted in the "envelope slot" of the desk. In the 

kitchen, eleven bags of cocaine were discovered in a drawer, and 
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four bags of marijuana were hidden in a flour canister. A "big 

piece" of crack cocaine rested in plain view atop a dresser in 

the "front bedroom," together with two bags containing a total of 

seventy-one empty smaller plastic bags. Five bags of marijuana 

were also found in the bedroom, two inside a women's jewelry box, 

and three in a dresser drawer. Women's clothing, a pocketbook, 

jewelry, and underwear were also located in the room. A single 

bag of marijuana was discovered in a bathroom medicine cabinet. 

Cash totalling $232 was gathered from defendant's "purse" and 

elsewhere in the residence. 

 Officer Rivera prepared an inventory of the property seized 

during the raid, but neither the Virginia Power nor Western Union 

documents were listed. Rivera attributed the omissions to 

"inadvert[ance]," "an oversight on [his] part." 

 Rivera qualified as an expert in "the methods and devices 

used to distribute narcotics" in the City of Portsmouth and 

testified that the quantity of the cocaine discovered in the 

residence, no less than 12.9 grams having a total value of 

approximately $1,290, and the related packaging and paraphernalia 

were inconsistent with possession for personal use. He further 

testified that the quantity and packaging of the marijuana were 

also inconsistent with personal use. 

MOTION TO SUPPRESS

 Defendant moved to suppress all evidence obtained during the 

search, arguing that it was the fruit of an improper no-knock 
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entry, and objected to the Virginia Power and Western Union 

exhibits because each had been excluded from the inventory. 

However, after consideration of memoranda of law and attendant 

argument of counsel, the trial court overruled both motions.1

 In reviewing the ruling on a suppression motion, we assess 

the evidence in the "light most favorable to . . . the prevailing 

party below," the Commonwealth in this instance, and the decision 

of the court will be disturbed only if plainly wrong. 

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 

48 (1991). Our consideration of the record includes evidence 

adduced at both trial and suppression hearings, if any. See

DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 

542-43 (1987), cert. denied, 488 U.S. 985 (1988). To prevail on 

appeal, the defendant must "show . . . that the denial of [his] 

motion . . . constitute[d] reversible error." Motley v. 

Commonwealth, 17 Va. App. 439, 440-41, 437 S.E.2d 232, 233 

(1993). 

 The Fourth Amendment requires "'that searches and seizures 

be reasonable.'" Wilson v. Arkansas, 115 S. Ct. 1914, 1916 

(1995) (quoting New Jersey v. TLO, 469 U.S. 325, 337 (1985)); see

Va. Const. art. I, § 10. "[T]he reasonableness of a search of a 

 

 1Contrary to defendant's contention that this ruling 

resulted solely from a recitation in the affidavit that defendant 

"may possibly be in possession of a .38 handgun," the trial judge 

expressly confirmed his consideration of "all the facts and 

testimony . . . rendered in the case." 
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dwelling may depend in part on whether law enforcement officers 

announced their presence and authority prior to entering." 

Wilson, 115 S. Ct. at 1916; see id. at 1918. "Generally, police 

officers, before resorting to forced entry into premises to be 

searched under warrant, must attempt to gain admittance peaceably 

by announcing their presence, identifying themselves as police 

officers and stating their purpose." Heaton v. Commonwealth, 215 

Va. 137, 138, 207 S.E.2d 829, 830 (1974). While this "knock and 

announce" rule doubtless "gives notice to the suspects of the 

officers' presence and the suspects' possible impending 

apprehension, it . . . discourages violence and volatile 

confrontations and encourages orderly executions of search 

warrants." Hargrave v. Commonwealth, 21 Va. App. 320, 323, 464 

S.E.2d 176, 177 (1995); see Johnson v. Commonwealth, 213 Va. 102, 

104, 189 S.E.2d 678, 679 (1972), cert. denied, 409 U.S. 1116 

(1973). 

 However, "[e]xceptions to the rule . . . permit officers to 

make an unannounced entry where they have probable cause to 

believe that their peril would be increased if they announced 

their presence or that an unannounced entry is necessary to 

prevent persons within from escaping or destroying evidence." 

Heaton, 215 Va. at 138, 207 S.E.2d at 830. "As an articulated 

legal standard, probable cause deals with probabilities 

concerning the factual and practical considerations in everyday 

life as perceived by reasonable and prudent persons." DePriest, 
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4 Va. App. at 584, 359 S.E.2d at 543 (quoting Washington v. 

Commonwealth, 219 Va. 857, 862, 252 S.E.2d 326, 329 (1979)). 

"[O]fficers are not required to possess either the gift of 

prophecy or the infallible wisdom that comes only with hindsight. 

 They must be judged by their reaction to circumstances as they 

reasonably appeared to trained law enforcement officers to exist 

when the decision to enter was made." Commonwealth v. Woody, 13 

Va. App. 168, 171, 409 S.E.2d 170, 172 (1991) (citing Keeter v. 

Commonwealth, 222 Va. 134, 141, 278 S.E.2d 841, 846, cert.

denied, 454 U.S. 1053 (1981)). The Commonwealth bears the burden 

of proving probable cause in support of an unannounced entry. 

See Heaton, 215 Va. at 138, 207 S.E.2d at 830. 

 Here, a confidential and reliable informant had observed a 

recent drug sale at defendant's residence, an activity common to 

the premises, where defendant reputedly possessed a handgun. 

Defendant's son and drug supplier, Duane, resided nearby, was 

often at defendant's home and had been arrested ten days 

previously for shooting into an unoccupied vehicle. When the 

warrant was executed, Duane's whereabouts were unknown to the 

police. The officers were, therefore, cognizant that two 

firearms were possibly present in the residence, each in the 

possession of a drug dealer, one of whom had recently been 

charged with a weapons violation. Accordingly, Early's 

conclusion that a knock and announce entry would endanger police 

was reasonable and prudent and supported by the necessary 
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probable cause to justify the disputed no-knock entry. 

 ADMISSIBILITY OF EVIDENCE OMITTED FROM INVENTORY 

 Code § 19.2-57 provides, in pertinent part, that: 

 The officer who seizes any property [pursuant 

to a search warrant] shall prepare an 

inventory thereof, under oath. An inventory 

of any seized property shall be produced 

before the court designated in the warrant. 

The officer executing the warrant shall 

endorse the date of execution thereon and 

shall file the warrant, with the inventory 

attached . . . and the accompanying 

affidavit, . . . within three days after the 

execution of such search warrant in the 

circuit court clerk's office, wherein the 

search was made . . . . 

 Although the Virginia Power and Western Union exhibits were 

omitted from the inventory prepared and filed by Officer Rivera, 

noncompliance with Code § 19.2-57 does not require suppression of 

the evidence: 

 "While violations of state procedural 

statutes are viewed with disfavor, . . . 

neither the Virginia Supreme Court nor the 

legislature has adopted an exclusionary rule 

for such violations[] . . . where no 

deprivation of the defendant's constitutional 

rights occurred." "'[H]istorically, searches 

or seizures made contrary to provisions 

contained in Virginia statutes provide no 

right of suppression unless the statute 

supplies that right.'" . . . Code § 19.2-57 

does not expressly command the suppression or 

exclusion of evidence for a violation of the 

statute. Moreover, [defendant] does not 

allege that his constitutional rights were 

violated. 

West v. Commonwealth, 16 Va. App. 679, 692, 432 S.E.2d 730, 

738-39 (1993) (citations omitted). 

SUFFICIENCY OF EVIDENCE 
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 In assessing a challenge to the sufficiency of the evidence 

to support a conviction, we examine the evidence in the light 

most favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. See Martin v. 

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 

The judgment of a trial court, sitting without a jury, is 

entitled to the same weight as a jury verdict and will be 

disturbed only if plainly wrong or without evidence to support 

it. See id. The credibility of a witness, the weight accorded 

the testimony, and the inferences to be drawn from proven facts 

are matters solely for the fact finder's determination. See Long 

v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). 

 [P]ossession of a controlled substance may 

 be actual or constructive. "To support a 

conviction based upon constructive 

possession, 'the Commonwealth must point to 

evidence of acts, statements, or conduct of 

the accused or other facts or circumstances 

which tend to show that the defendant was 

aware of both the presence and character of 

the substance and that it was subject to his 

dominion and control.'" 

McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740 

(1987) (citation omitted) (quoting Drew v. Commonwealth, 230 Va. 

471, 473, 338 S.E.2d 844, 845 (1986)). Circumstantial evidence 

of possession is sufficient to support a conviction provided it 

excludes every reasonable hypothesis of innocence. See Tucker v. 

Commonwealth, 18 Va. App. 141, 143, 442 S.E.2d 419, 420 (1994); 

McGee, 4 Va. App. at 322, 357 S.E.2d at 740; Johnson v. 

Commonwealth, 2 Va. App. 598, 604-05, 347 S.E.2d 163, 167 (1986). 
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 Although mere proximity to drugs is insufficient to 

establish possession, it is a circumstance which may be probative 

in determining whether an accused possessed such drugs. See Lane 

v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982); 

Eckhart v. Commonwealth, 222 Va. 447, 450-51, 281 S.E.2d 853, 855 

(1981); Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 

882 (1992) (reh'g en banc). Ownership or occupancy of the 

premises is likewise a circumstance probative of possession. See

Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 

(1986) (citing Code § 18.2-250). Thus, in resolving this issue, 

the Court must consider "the totality of the circumstances 

disclosed by the evidence." Womack v. Commonwealth, 220 Va. 5, 

8, 255 S.E.2d 351, 353 (1979). 

 Here, defendant was alone in the residence and ran from the 

living room to the kitchen as police entered the home. 

Contemporary documents, personal to defendant and addressed to 

the subject premises, were discovered on a desk in the living 

room, together with cocaine. Eleven bags of cocaine were found 

in a kitchen drawer. A "big piece" of crack cocaine was in plain 

view on a dresser located in a bedroom, together with women's 

clothing, underwear, and jewelry. Numerous bags of marijuana 

were discovered in the kitchen, bathroom, and bedroom. The only 

reasonable hypothesis arising from such evidence is that 

defendant constructively possessed the cocaine and marijuana 

found both in plain view and stashed throughout her residence, 
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aware of the nature and character of the drugs. See Wymer v. 

Commonwealth, 12 Va. App. 294, 300-01, 403 S.E.2d 702, 706-07 

(1991) (evidence of constructive possession sufficient where 

accused and another occupied a residence, and drugs and 

paraphernalia were with accused's possessions). 

 Defendant's challenge to the sufficiency of the evidence to 

prove intent to distribute the drugs is also without merit. 

"Because direct proof of intent is often impossible, it must be 

shown by circumstantial evidence." Servis v. Commonwealth, 6 Va. 

App. 507, 524, 371 S.E.2d 156, 165 (1988). "In proving intent, 

various types of circumstantial evidence may be appropriate -- 

evidence concerning the quantity of drugs and cash possessed, the 

method of packaging, . . . whether appellant himself used drugs," 

Poindexter v. Commonwealth, 16 Va. App. 730, 734-35, 432 S.E.2d 

527, 530 (1993), and the absence of evidence suggestive of 

personal use. See Colbert v. Commonwealth, 219 Va. 1, 4, 244 

S.E.2d 748, 749 (1978). 

 Officer Rivera testified that the method of packaging and 

the quantities of both the cocaine and marijuana were 

inconsistent with personal use. He also testified that the 

presence of seventy-one empty small baggies suggested an intent 

to package and distribute the drugs. Finally, the officers found 

no paraphernalia or other items related to personal use of the 

drugs. Such evidence was sufficient to support the finding that 

defendant possessed the offending drugs with the requisite intent 
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to distribute. 

 Accordingly, we affirm the convictions. 

 Affirmed.