Opinion
Record No. 2199-93-2
Decided: December 6, 1994
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND, James B. Wilkinson, Judge
Affirmed.
Cheryl Jakim Frydrychowski, Assistant Public Defender (David J. Johnson, Public Defender, on brief), for appellant.
G. Russell Stone, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General; Janet F. Rosser, Assistant Attorney General, on brief), for appellee.
Present: Judges Benton, Fitzpatrick and Senior Judge Cole
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Mark Anthony Gallman (appellant) was convicted in a bench trial of possession of cocaine with intent to distribute. On appeal, appellant argues that the trial court erred when it denied his motion to suppress. We disagree and affirm the conviction.
On July 15, 1993, Officers D. Allan Miles (Miles) and David Wright (Wright) of the Richmond City Police Department were operating radar in the Afton Avenue area of Richmond. Miles saw appellant stop at a stop sign at the intersection of Afton and Lynhaven Avenues. Appellant then drove through the intersection, stopped, backed up through the intersection, and turned right onto Lynhaven.
The two officers stopped appellant, and Miles arrested him for reckless driving. Wright asked appellant if the car contained any weapons and asked for permission to search the car for weapons. Appellant consented to the search and offered to let the officers search the trunk as well. The search of the car revealed a vitamin bottle under a towel beneath the car's front seat. During the search, appellant tried to enter the car to retrieve the towel that partially covered the bottle, but Miles restrained him. The bottle contained vitamins and five plastic bag corners of cocaine.
By pretrial motion, appellant moved to suppress the cocaine seized from the pill bottle, because the search of the bottle exceeded the scope of his consent to search the car for weapons. The trial court denied the suppression motion, finding that the search of the car and the pill bottle was a search incident to appellant's arrest and his consent was unnecessary to validate the search. In a bench trial, appellant was convicted of possession with intent to distribute. The Commonwealth dismissed the reckless driving charge.
The search of appellant's car and the items contained therein was a search incident to a lawful arrest for the misdemeanor of reckless driving. New York v. Belton, 453 U.S. 454, 460-61 (1981), held that a police officer may search containers within the passenger compartment of an automobile when the occupants of the car are lawfully in custody. Thus, whether appellant limited his consent to a search for weapons only is irrelevant. No consent was necessary.
Appellant also argues that his arrest did not comport with the requirements of Code Sec. 46.2-936 and that his arrest for reckless driving was pretextual. However, neither of these grounds was raised in the trial court, and they are barred by Rule 5A:18. See Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991).
For the reasons stated above, we affirm.
Affirmed.