COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Willis and Overton 

Argued at Norfolk, Virginia 

DAVID S. SHEARS 

 OPINION BY 

v. Record No. 1928-95-1 JUDGE JOSEPH E. BAKER 

 NOVEMBER 5, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

John D. Gray, Judge 

 Oldric J. LaBell, Jr., for appellant. 

 Eugene Murphy, Assistant Attorney General 

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

brief), for appellee. 

 David S. Shears (defendant) was convicted in a bench trial 

on separate indictments charging two offenses of cocaine 

possession with intent to distribute, two related firearm charges 

and possession of marijuana with intent to distribute. He 

complains on appeal that the trial court erroneously admitted 

evidence gathered during an unlawful search and seizure and 

wrongfully convicted him of the two cocaine offenses arising from 

a single act of possession. He also challenges the sufficiency 

of the evidence to support the marijuana conviction. Finding no 

error, we affirm the trial court. 

 The Commonwealth's evidence is uncontradicted. Hampton 

Police Detective Olen Payne, assisted by Detectives John Decker 

and others, was pursuing an arrest of Clyde Boyce on "outstanding 

murder warrants." Planning to entice Boyce into custody, police 

enlisted an informant to telephone Boyce, a known narcotics 
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dealer, and solicit a drug purchase from him. After the 

informant confirmed the contact with Boyce, the detectives 

secreted themselves in and about the informant's mobile home and 

awaited Boyce's arrival to consummate the transaction. Boyce 

reputedly delivered drugs "moments" after a "call," and, within a 

"few minutes," an automobile arrived and defendant exited and 

entered the trailer. 

 Hidden in the rear of the residence, Detective Payne 

observed defendant and heard him declare, "This better not be no 

set up," to someone in the kitchen area. Although Payne had 

never before seen either Boyce or defendant, defendant's 

appearance was consistent with the physical description of Boyce 

which, together with the attendant circumstances, prompted Payne 

to mistakenly identify defendant as Boyce. Intending to then 

effect an arrest of Boyce, Payne, assisted by other officers, 

forced defendant to the floor and handcuffed him. Immediately 

thereafter, police discovered a "small bag" of cocaine on the 

kitchen floor, "right at that point where [defendant] initially 

was standing." A "similar bag" was found by Detective Burton in 

defendant's trouser pocket during a search incidental to arrest.1

 While still at the scene, Detective Burton advised defendant 

of his Miranda rights and asked, "how long had he been selling 

crack cocaine?" Defendant responded, "a couple of weeks," and 

 

 1Defendant was initially arrested pursuant to the 

outstanding felony warrant for Boyce. Detective Burton made a 

subsequent arrest for possession of the cocaine. 
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provided Burton with the address of a residence which he shared 

with his uncle, Mollow Shears, the individual who had accompanied 

defendant to the informant's trailer. Based upon this 

information, Detective Decker then obtained and executed a search 

warrant for the Shears' residence. 

 The ensuing search revealed a large cache of narcotics and 

handguns, together with "personal papers" belonging to defendant, 

located in one of two bedrooms in the home. Documents related to 

defendant included his operator's license, birth certificate, GED 

diploma and current motor vehicle registration. Also in this 

room, Decker found numerous "plastic bags" containing cocaine, 

plastic bags concealing twenty-eight individual packages of 

marijuana, aggregating 86.6 grams at analysis, a "pager," 

$1,517.50 in cash and coin, and several firearms. A "set" of 

scales was found in the kitchen area of the home. Additionally, 

a pistol "box" was discovered in the bedroom bearing the make, 

model and serial number of a firearm discovered in the car which 

brought defendant to the informant's trailer. 

 THE SEARCH 

 Defendant first contends that the trial court erroneously 

declined to suppress all evidence seized by police, arguing that 

it resulted from an "illegal" initial arrest. 

 Upon appeal from a trial court's denial of a motion to 

suppress, we must review the evidence in the light most favorable 

to the prevailing party, granting to it all reasonable inferences 
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fairly deducible therefrom. Commonwealth v. Grimstead, 12 Va. 

App. 1066, 1067, 407 S.E.2d 47, 48 (1991); Reynolds v. 

Commonwealth, 9 Va. App. 430, 436, 388 S.E.2d 659, 663 (1990). 

Determinations of reasonable suspicion and probable cause require 

de novo review on appeal. Ornelas v. United States, 116 S. Ct. 

1657, 1663 (1996). However, a trial court's "findings of 

historical fact" should be reviewed only for "clear error." 

Moreover, "due weight" must be given to "inferences drawn from 

those facts by resident judges and local law enforcement 

officers," and to "a trial court's finding that [an] officer was 

credible and [that his or her] inference was reasonable." Id.

 Defendant's argument implicitly acknowledges the long 

recognized principle which permits warrantless searches of 

persons lawfully arrested. However, his assertion that the 

police lacked probable cause to arrest in this instance ignores 

the inherent authority of the outstanding felony warrant which 

generated the police action. Probable cause justifying the 

arrest of the person named in the warrant was established upon 

the issuance of that process. See Code § 19.2-72. While the 

record does not confirm that Detective Payne actually possessed 

the warrant, he was, nevertheless, privy to its contents and 

existence and, therefore, both empowered and duty bound to arrest 

the named accused, Clyde Boyce. Crowder v. Commonwealth, 213 Va. 

151, 152-53, 191 S.E.2d 239, 239-40 (1972); see Code § 19.2-81. 

The ruse employed by the detectives to lure Boyce to the trailer 
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would not have tainted his arrest pursuant to the existing 

warrant. See Limonja v. Commonwealth, 8 Va. App. 532, 538-39, 

383 S.E.2d 476, 480 (1989) (en banc), cert. denied, 495 U.S. 905 

(1990). 

 These principles are equally controlling "[i]f the police 

have a valid arrest warrant for one person and they reasonably 

and in good faith arrest another." United States v. McEachern, 

675 F.2d 618, 621 (4th Cir. 1982) (citing Hill v. California, 401 

U.S. 797, 802-04 (1971)); see also 3 Wayne R. LaFave, Search & 

Seizure § 5.1(g), at 56-57 (3d ed. 1996). Thus, given probable 

cause to arrest Boyce pursuant to the warrant, "the only issue is 

whether [Detective Payne's] mistaken belief that [Boyce] and 

[defendant] were one and the same person was reasonable and in 

good faith." McEachern, 675 F.2d at 621; see also Hill, 401 U.S. 

at 802-04; DeChene v. Smallwood, 226 Va. 475, 479, 311 S.E.2d 

749, 751, cert. denied, 469 U.S. 857 (1984). 

 It is uncontroverted that the detectives were vested with 

the authority of the warrant for Boyce when defendant was 

arrested at the informant's trailer. The informer was instructed 

to telephone Boyce, an individual known to police as a drug 

dealer reputed for quick response to solicitations. Within 

minutes after the informer advised the detectives that he had 

contacted Boyce as directed, defendant arrived and entered the 

trailer. The detectives had previously seen neither defendant 

nor Boyce, but defendant's appearance was consistent with Boyce's 
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"general description," and his comments were suggestive of an 

impending narcotics transaction. Under such circumstances, the 

police clearly acted both in good faith and reasonably in 

arresting defendant, as Boyce, albeit in error. 

 DOUBLE JEOPARDY 

 Defendant next argues that the cocaine possessed at the 

informant's trailer and at his residence constituted a single 

offense, a "long transaction of illegal possession," multiple 

prosecutions for which violated the double jeopardy proscriptions 

of the United States Constitution. 

 The Double Jeopardy Clause of the Fifth Amendment 

 protects against a second prosecution for the 

same offense after acquittal. It protects 

against a second prosecution for the same 

offense after conviction. And it protects 

against multiple punishments for the same 

offense. 

Brown v. Ohio, 432 U.S. 161, 165 (1977); see U.S. Const. amend. 

V; Va. Const. art. I, § 8; Sullivan v. Commonwealth, 16 Va. App. 

844, 846, 433 S.E.2d 508, 509-10 (1993) (en banc). "The issue of 

multiple punishments actually arises in two contexts. First, two 

or more statutes . . . proscribe . . . particular . . . conduct 

as criminal offenses. Second, . . . conduct may constitute more 

than one violation of a single criminal proscription." Jordan v. 

Commonwealth, 2 Va. App. 590, 593, 347 S.E.2d 152, 154 (1986) 

(citations omitted). Here, defendant asserts that he was 

unconstitutionally punished by convictions on two indictments 

arising from a single criminal enterprise, the possession of 
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cocaine with intent to distribute in violation of Code 

§ 18.2-248.2

 "When considering multiple punishments for a single 

transaction, the controlling factor is legislative intent." 

Kelsoe v. Commonwealth, 226 Va. 197, 199, 308 S.E.2d 104, 104 

(1983). The legislature "may determine the appropriate 'unit of 

prosecution' and set the penalty for separate violations." 

Jordan, 2 Va. App. at 594, 347 S.E.2d at 154. Therefore, 

although multiple offenses may be the "same," an accused may be 

subjected to legislatively "authorized cumulative punishments."3

Id. It is judicial punishment in excess of legislative intent 

which offends the double jeopardy clause. Id.

 In enacting Code § 18.2-248, the General Assembly declared 

it "unlawful for any person to . . . sell, . . . or possess with 

intent to . . . sell . . . a controlled substance." Code 

§ 18.2-248(A). Code § 18.2-248(C) prescribes the punishment for 

"[a]ny person who violates this section with respect to a 

controlled substance classified in Schedule I or II."4

 The 

 

 2Because defendant was tried simultaneously on both 

indictments, multiple prosecution for a single act or offense was 

not in issue. Clagett v. Commonwealth, 252 Va. 79, 95, 472 

S.E.2d 263, 272 (1996). 

 3The well established Blockburger test, applicable "where 

the same act or transaction constitutes a violation of two 

distinct statutory provisions," is irrelevant in this context. 

Blockburger v. United States, 284 U.S. 299, 304 (1932). 

 4Cocaine is a Schedule II controlled substance. Code 

§ 54.1-3448. 
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gravamen of the offense is clearly possession of the specified 

drug with the requisite intent. Thus, each distinguishable 

incident of the offending conduct constitutes a "unit of 

prosecution" for violation of the statute. See, e.g., Kelsoe, 

226 Va. at 198-99, 308 S.E.2d at 104 (defendant convicted of 

three violations for simultaneously brandishing the same firearm 

at three persons); Sullivan, 16 Va. App. at 847-48, 433 S.E.2d at 

510-11 (defendant convicted of two robberies, and related firearm 

offenses, from two clerks at the same video store); Jordan, 2 Va. 

App. at 597, 347 S.E.2d at 156 (defendant convicted of two 

robberies, and related firearm offenses, from employees of a 

single restaurant). 

 Here, defendant does not dispute on appeal that he actually 

possessed cocaine at the informant's trailer for purposes of 

immediate distribution to a prospective buyer. Manifestly, such 

conduct constitutes a violation of Code § 18.2-248 separate from 

the constructive possession of like drugs elsewhere, despite a 

similar criminal purpose. Hence, defendant committed two 

distinct violations of a single criminal proscription and was 

appropriately subject to attendant cumulative punishments. 

 SUFFICIENCY 

 Lastly, defendant asserts that the evidence failed to 

establish the requisite intent to distribute the marijuana. In 

reviewing this challenge to the conviction, we must consider the 

evidence in the light most favorable to the Commonwealth. Martin 
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v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 

 Defendant's conviction required the Commonwealth to prove 

that he "'intentionally and consciously possessed' [marijuana], 

either actually or constructively, with knowledge of its nature 

and character, together with the intent to distribute it." 

Wilkins v. Commonwealth, 18 Va. App. 293, 298, 443 S.E.2d 440, 

444 (1994) (en banc) (quoting Josephs v. Commonwealth, 10 Va. 

App. 87, 99-102, 390 S.E.2d 491, 497-99 (1990) (en banc)). 

 [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 . . . [prove] 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) (citations omitted). "Because direct proof of [the] 

intent [to distribute] 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). Circumstances relevant to 

proof of an intent to distribute include the "quantity of drugs 

and cash possessed, the method of packaging," Poindexter v. 

Commonwealth, 16 Va. App. 730, 735, 432 S.E.2d 527, 530 (1993), 

and the presence of paraphernalia related to distribution. 

Hambury v. Commonwealth, 3 Va. App. 435, 438, 350 S.E.2d 524, 525 

(1986). 

 Here, a search of defendant's residence disclosed no less 
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than 86.6 grams of marijuana, packaged in twenty-eight individual 

plastic bags, in a bedroom of defendant's residence together with 

several documents, important and personal to defendant, and 

substantial cash and firearms. Elsewhere in the residence, 

police discovered scales. Significantly, defendant admitted to 

Detective Burton that he was then actively involved in the 

narcotics trade. Such evidence, considered with other facts and 

the circumstances established in the record, clearly supports the 

trial court's finding that defendant constructively possessed the 

marijuana found in his bedroom with the intent to distribute it. 

 Accordingly, we affirm the conviction. 

 Affirmed.