Opinion
Record No. 2023-92-3
Decided: June 21, 1994
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE, James F. Ingram, Judge
Affirmed.
Phyllis Marie Mosby (Office of the Public Defender, on brief), for appellant.
Katherine Toone Baldwin, Assistant Attorney General (Stephen D. Rosenthal, Attorney General; Virginia B. Theisen, Assistant Attorney General, on brief), for appellee.
Present: Judges Barrow, Coleman and Koontz
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Calvin Lee Blaine was convicted in a jury trial of possession of marijuana with intent to distribute. The evidence against Blaine consisted of marijuana that the police found in Blaine's storage locker and his truck. We affirm Blaine's conviction and hold that (1) the police did not "search" the defendant's locker when they permitted trained narcotic detecting dogs to sniff around the common areas of a storage facility with the manager's consent, (2) the search warrant affidavit contained probable cause to support the magistrate's decision to issue a warrant to search the defendant's locker, (3) the police had a reasonable suspicion that the defendant might be engaged in criminal activity, which justified the stop of his vehicle when he drove up to the storage facility before the police had searched the locker, (4) the police conducted a search of Blaine's truck and its contents with his voluntary consent, and (5) the evidence is sufficient to sustain the defendant's conviction for possession of marijuana with an intent to distribute.
I. POLICE INVESTIGATION BY USING NARCOTIC DETECTION CANINES
After receiving information from a confidential informant that Blaine was storing drugs at a storage facility located outside Danville, detectives went to the storage lot and requested permission from the manager, Larry Barton, to allow trained narcotic detection dogs to sniff the common areas of the storage facility. The police did not ask which locker was rented by Blaine until after the dog began scratching and pawing at the door of locker E-41. Only then did Barton inform the police that Blaine rented locker E-41.
The trial court found that the narcotic detecting dog only sniffed the common areas of the storage facility and never entered any individual's storage unit. The use of a police dog to sniff for drug odors is not a "search" for purposes of the Fourth Amendment, and the defendant does not have a reasonable expectation of privacy in the air around his locker. See United States v. Place, 462 U.S. 696, 706-07 (1983); Brown v. Commonwealth, 15 Va. App. 1, 6, 421 S.E.2d 877, 880 (1992). Because all police activity at this point was conducted on the property of the storage facility, with the consent of the manager, the defendant's contention that the police conducted an illegal search is without merit. See Parks v. Commonwealth, 221 Va. 492, 496-97, 270 S.E.2d 755, 757-58 (1980).
II. THE WARRANT SUPPORTED BY PROBABLE CAUSE
After receiving the information about locker E-41, detectives prepared an affidavit, submitted it to a magistrate, and obtained a warrant to search the locker. The trial court did not err in finding that probable cause existed to issue the search warrant. The trained narcotic detecting dog had alerted to locker E-41. The dog's response provided probable cause to issue a warrant to search inside the locker for drugs. See Brown, 15 Va. App. at 6, 421 S.E.2d at 881.
The defendant contends that the warrant is invalid because it recites that the suspected crime is possession of drugs "with an intent to distribute." He asserts that no probable cause existed to suspect that the possession was "with an intent to distribute." The function of the probable cause requirement "is to guarantee a substantial probability that the invasion involved in the search will be justified by discovery of offending items [i.e. drugs]." Boyd v. Commonwealth, 12 Va. App. 179, 185, 402 S.E.2d 914, 918 (1991). Probable cause to believe that evidence of a crime will be found at a location supports the issuance of a search warrant. Assuming without deciding that the search warrant would not be valid if the showing of probable cause was only sufficient to show simple possession of marijuana, the fact that the narcotics dog had alerted on drugs in the storage locker supports the magistrate's finding that possession was with the intent to distribute. Storing drugs in a locker is more compatible with a location from which one would distribute drugs than with having drugs where one would use them. The affidavit provided probable cause to believe that the locker contained illegal drugs for distribution.
III. THE STOP SUPPORTED BY REASONABLE SUSPICION
Before police executed the search warrant, Blaine drove up to the storage unit in a truck matching the description given to the police. The police stopped the truck. Upon learning that Calvin Blaine was driving the truck, Detective Myers informed Blaine that the police had a warrant to search his storage locker. Blaine stepped out of his truck and unlocked his storage unit. In the locker, the police found a box containing a plastic bag with seven ounces of marijuana and two other "baggies" with marijuana residue. Blaine's fingerprint was on one of the "baggies" with residue.
The trial court did not err in finding that the police had a reasonable suspicion to stop Blaine's truck. The stop occurred after a trained drug detection dog had alerted to Blaine's locker, after the officers had obtained a search warrant for the locker, and after a truck, which matched the description and tag number of Blaine's vehicle, was driven into the area to be searched. These circumstances gave the police a reason to suspect that Blaine was coming to the storage locker to retrieve drugs or to deposit other drugs. The evidence was sufficient for the officers to have stopped the defendant's truck to inquire whether criminal activity was afoot. See Terry v. Ohio, 392 U.S. 1 (1968); Leeth v. Commonwealth, 223 Va. 335, 340, 288 S.E.2d 475, 478 (1982).
IV. CONSENT SEARCH OF TRUCK
After the officers discovered drugs in Blaine's storage unit, the police requested permission from him to search his truck. Detective Baggerly explained to Blaine about the right to refuse a search of the vehicle, but Blaine consented to a search of his truck. In Blaine's truck, the police found a brown paper bag containing two plastic "baggies" and scales, but they found no drugs in the vehicle.
After the officers stopped Blaine's truck, he knowingly, intelligently, and voluntarily consented to a search of his vehicle. Blaine's consent, which was obtained after the police informed him of his right not to consent, placed no restrictions on the search of his vehicle. Accordingly, the trial court did not err by admitting the relevant evidence found by the police in defendant's truck pursuant to a valid consent search. Limonja v. Commonwealth, 8 Va. App. 532, 540, 383 S.E.2d 476, 481 (1989) (reh'g en banc); Stamper v. Commonwealth, 220 Va. 260, 268, 257 S.E.2d 808, 814 (1979), cert. denied, 445 U.S. 972 (1980). Furthermore, the trial court did not err in holding that the police did not exceed the scope of the defendant's general consent when they opened the brown plastic bag inside his vehicle. See Florida v. Jimeno, 500 U.S. 248, 251 (1991).
V. SUFFICIENCY OF THE EVIDENCE
The evidence is sufficient to sustain Blaine's conviction for possession of marijuana with an intent to distribute in violation of Code Sec. 18.2-358.1. Blaine's conviction must be affirmed unless it is plainly wrong or without evidence to support it. Gardner v. Commonwealth, 3 Va. App. 418, 425, 350 S.E.2d 229, 233 (1981); Code Sec. 8.01-680. To obtain a conviction based on constructive possession of drugs, the Commonwealth must point to evidence of acts, statements, or conduct of the accused or other circumstances that show that the accused was aware of the presence and character of the drugs and that the drugs were under his dominion and control. Behrens v. Commonwealth, 3 Va. App. 131, 135, 348 S.E.2d 430, 432 (1986). To support a conviction of possession with intent to distribute, the Commonwealth must prove intent, which usually must be proven by circumstantial evidence. Wells v. Commonwealth, 2 Va. App. 549, 551, 347 S.E.2d 139, 140 (1986).
The E-41 storage unit containing drugs was leased to Calvin Lee Blaine. A brown box on top of a dresser in the unit contained clothing and marijuana hidden inside a bag. Blaine's fingerprint was found on a bag containing marijuana residue that was found inside the shed. The name of Pamela Swann appeared on the lease as an emergency contact person, and her furniture was stored in Blaine's locker.
While ownership and occupancy of a premises do not, standing alone, establish constructive possession, they are factors to be considered. Eckhart v. Commonwealth, 222 Va. 447, 451, 281 S.E.2d 853, 855 (1981). Possession of drugs need not be exclusive; it may be shared with another. Id. at 450, 281 S.E.2d at 855.
The defendant constructively possessed over 220 grams of marijuana in a storage locker, which was leased in his name alone and to which he had a key. The fact that Pamela Swann might also constructively have possessed the drugs in the storage unit does not alter the fact that the evidence proved beyond a reasonable doubt that Blaine possessed the drugs.
Furthermore, sufficient evidence supports the court's finding that Blaine possessed the drugs with an intent to distribute them. The drugs were found in a storage unit away from Blaine's home where they would be readily usable. Blaine had a set of scales with him when he drove up to the locker. Possessing more drugs than are ordinarily possessed for personal use and possession of scales used to measure drugs are two factors that permit a fact finder reasonably to infer that drugs are possessed with an intent to distribute them. Id. at 451, 281 S.E.2d at 855.
Accordingly, we affirm Blaine's conviction.
Affirmed.