Opinion
Record No. 2093-93-2
Decided: February 14, 1995
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY, John F. Daffron, Jr., Judge
George Elridge Leedom for appellant.
John H. McLees, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judge Coleman and Senior Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
On October 14, 1993, the appellant, Jon Tracy Brown, was convicted for the possession of cocaine. The appellant contends that the cocaine evidence should have been suppressed because it was obtained through an illegal search of his automobile and the evidence is insufficient to support the conviction. For the following reasons, we affirm the conviction.
A police officer may approach an occupied motor vehicle parked in public and initiate conversation with the occupants without implicating the Fourth Amendment or impinging upon its guarantees. Carson v. Commonwealth, 12 Va. App. 497, 499-500, 404 S.E.2d 919, 920-21, aff'd on reh'g, 13 Va. App. 280, 410 S.E.2d 412 (1991). Such a confrontation is not a seizure. Id. (citing 3 W. LaFave, Search and Seizure Sec. 9.2(h) (2d ed. 1987)). Furthermore, when an officer approaches an automobile parked in public, the "officer is not precluded from looking into . . . [the] automobile to observe 'what would be entirely visible to him as a private citizen.' " Id. at 500, 404 S.E.2d at 920 (quoting Texas v. Brown, 460 U.S. 730, 740 (1983)). "[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. 347, 351 (1967). The Fourth Amendment is implicated for purposes of a search only when the individual has a reasonable expectation of privacy in the area being searched. Id.
The appellant contends that he was illegally seized because he did not feel free to leave when the officer stood beside the appellant's car, displayed his badge, and shined his flashlight into the car. A seizure of the person occurs only when a reasonable person would have believed that he was not free to leave, United States v. Mendenhall, 446 U.S. 544 (1980), because the individual's freedom of movement was restrained by a show of authority or use of physical force. See California v. Hodari D., 499 U.S. 621 (1991), and Baldwin v. Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 647 (1992). When a uniformed officer approaches a car, questions the driver, and visually inspects the interior of the car, no seizure of the person occurs. Grinton v. Commonwealth, 14 Va. App. 846, 849, 419 S.E.2d 860, 862 (1992). Regardless of the appellant's subjective feelings, Officer Cohorst had not by words, actions, show of authority, or use of physical force indicated to the appellant that he was being detained and was not free to leave. Accordingly, he had not been seized. Baldwin, 243 Va. at 196, 413 S.E.2d at 647-48.
Assuming that Officer Cohorst ordered the appellant to exit the car, at that time he was seized because he reasonably could believe that he was not free to leave and the officer was, in fact, exercising control over him. However, when the officer ordered the appellant to exit the car so that he could search it, the officer had probable cause to believe that the vehicle contained illicit drugs. Prior to approaching the vehicle, the officer, a member of the Chesterfield County narcotics unit, had been conducting surveillance of the "Players Club" parking lot because it was considered to be an area of high drug activity. Cohorst saw the appellant enter his car, furtively look around, twice lean down toward the passenger's side for five to ten seconds each time. From Cohorst's training and experience as a narcotics officer, he thought that the appellant had left the club and entered his car where he had inhaled cocaine. When Officer Cohorst approached the car and looked inside, he saw a white powdery substance on the seat to the right of the appellant where he had been leaning his head. Cohorst had probable cause to believe that the substance he observed was cocaine and, therefore, had probable cause to search the vehicle. See Carson, at 503, 404 S.E.2d at 923. Because the appellant could easily and readily move his vehicle, exigent circumstances justified Cohorst immediately searching the vehicle without obtaining a warrant. See Minnesota v. Olson, 495 U.S. 91 (1990); Chambers v. Maroney, 399 U.S. 42 (1970); and Leeth v. Commonwealth, 223 Va. 335, 288 S.E.2d 475 (1982). As a result of the search, Cohorst found under the driver's seat, three or four inches back, a green soap dish containing a large white "baggie" of cocaine. Because the cocaine was seized as the result of a lawful search, the trial judge did not err in refusing to suppress it as evidence.
The appellant next contends that the evidence is insufficient to sustain his conviction for the possession of cocaine. He argues that "no evidence [was] presented that [he] . . . had any knowledge of the cocaine's presence, that he understood its nature or character or that he had exclusive dominion and control over the substance."
Possession of a controlled substance may be actual or constructive. Peterson v. Commonwealth, 5 Va. App. 389, 402, 363 S.E.2d 440, 448 (1987). Constructive possession exists when an accused has dominion and control over the drugs. Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814 (1975). Such possession "may be proved by evidence of acts, declarations or conduct of the accused." Castaneda v. Commonwealth, 7 Va. App. 574, 583, 376 S.E.2d 82, 896 (1989) (en banc).
Proximity to the drugs, occupancy of the vehicle in which drugs are found, Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882-83 (1992), and presence in a high drug activity area, Coe v. Commonwealth, 231 Va. 83, 88-89, 340 S.E.2d 820, 824 (1986), are "factors which may be considered in determining whether a defendant possessed drugs." Castaneda, 7 Va. App. at 583, 376 S.E.2d at 86. Officer Cohorst found the drugs under the appellant's seat, the appellant was the sole occupant of the vehicle at the time, a white powder having the appearance of cocaine was found on the seat where the appellant was leaning over, and his furtive movements in looking around and leaning over twice for periods of five to ten seconds are sufficient for the fact finder to infer that he knew of the presence and nature of the cocaine and was exercising dominion and control over it. The evidence is sufficient to support the conviction. We, therefore, affirm.
Affirmed.