Opinion
Record No. 1996-93-1
Decided: January 10, 1995
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK, Thomas R. McNamara, Judge
Michael F. Fasanaro, Jr. (Abrons, Fasanaro Sceviour, on brief), for appellant.
Robert B. Beasley, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General; Janet F. Rosser, Assistant Attorney General, on brief), for appellee.
Present: Judges Baker, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Charles Donnell Joe (defendant) was convicted for possession of cocaine with the intent to distribute, possession of marijuana, driving on a suspended license, and speeding. Defendant appeals to this Court, complaining that the trial court erroneously overruled his motion to suppress evidence obtained during a search of an automobile, and that the evidence was insufficient to support the suspended license conviction. We agree with defendant with respect to the sufficiency argument and reverse the related conviction, but affirm the trial court otherwise.
In considering a trial court's ruling on a suppression motion, we view the evidence in the "light most favorable to . . . the prevailing party below," the Commonwealth in this instance, and the decision of the trial court will be disturbed only if plainly wrong. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). "Our review of the record includes evidence adduced at both the trial and the suppression hearing." Greene v. Commonwealth, ___ Va. App. ___, ___, 440 S.E.2d 138, 139 (1994) (citing DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 542-43 (1987), cert. denied, 488 U.S. 985 (1988)). "It is well established that, on appeal, appellant carries the burden to show . . . that the denial of a motion to suppress constitutes reversible error." Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437 S.E.2d 232, 233 (1993) (citing Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017 (1980)).
On February 3, 1993, a car, traveling at a "high rate of speed" in the "right turn only" lane, passed a police cruiser and two other cars, "almost caus[ing] a wreck." Investigator J. D. McFatter witnessed the erratic driving and effected a traffic stop. Defendant, the operator and alone in the vehicle, immediately exited the car and was arrested by McFatter for reckless driving. The ensuing police investigation revealed that defendant's operator's license had been suspended.
McFatter noticed that "[t]wo license plates, one on the top of the other," were affixed to the vehicle, and suspected that it was stolen. When defendant did not respond to McFatter's request for his operator's license and the vehicle registration, McFatter entered the car on the driver's side, reached into the glove compartment, and located the registration "card." As McFatter turned to exit, he noticed a plastic bag containing "numerous smaller bags" of suspected cocaine in an "open storage compartment" on the driver's door. McFatter retrieved the drugs and arrested defendant for possession of cocaine. A further search of the vehicle disclosed more cocaine, similarly packaged, and a bag of marijuana, all hidden "under the headrest" of the driver's seat. At trial, defendant testified that he was unaware of either the license suspension or drugs in the vehicle.
Motion to Suppress
Reckless driving is a Class 1 misdemeanor. Code Sec. 46.2-868. In Neiss v. Commonwealth, 16 Va. App. 807, 810, 433 S.E.2d 262, 264 (1993), this Court recognized the statutory authority of police to arrest for a misdemeanor traffic offense committed in an officer's presence. Id.; Code Sec. 19.2-81. Once defendant was lawfully arrested for reckless driving, McFatter was authorized to undertake a related search of the vehicle's passenger compartment. See New York v. Belton, 453 U.S. 454, 461 (1981); Pack v. Commonwealth, 6 Va. App. 434, 437, 368 S.E.2d 921, 923 (1988). "A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification." Belton, 453 U.S. at 461 (citation omitted); Pack, 6 Va. App. at 436-37, 368 S.E.2d at 922-23 (1988). We find, therefore, that the search of the vehicle was lawful and affirm the trial court's denial of the suppression motion.
On appeal, defendant does not challenge this arrest.
Driving with a Suspended License
In order to sustain a conviction for driving on a suspended license, the Commonwealth must prove that defendant was aware of the suspension. Bibb v. Commonwealth, 212 Va. 249, 250, 183 S.E.2d 732, 733 (1971); Plummer v. Commonwealth, 13 Va. App. 13, 15-16, 408 S.E.2d 765, 766 (1991). As the Commonwealth acknowledged, the "record does not show that the defendant had [such] notice," and we must reverse and dismiss this conviction.
Affirmed in part, and reversed and dismissed in part.