Opinion
Record No. 1351-93-3
Decided: June 28, 1994
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE, Clifford R. Weckstein, Judge
Affirmed.
Roger L. Dalton, Assistant Public Defender, for appellant.
Janet F. Rosser, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Coleman, Koontz and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Kenneth Nelson Jones, Sr. appeals his conviction for possession of cocaine with intent to distribute. The police found over seventeen grams of cocaine, along with related paraphernalia and a loaded revolver, while executing a warrant to search an apartment occupied by appellant's girlfriend. Appellant contends (1) that the trial court erred in denying his motion to suppress, which was based on the alleged unconstitutionality of the officers' no-knock entry; and (2) that the evidence was insufficient to show he possessed the cocaine. For the reasons that follow, we affirm appellant's conviction.
I.
Appellant contends that the trial court erred in failing to suppress evidence seized in violation of his Fourth Amendment rights. On appeal, the burden is on appellant to show, considering the evidence in the light most favorable to the Commonwealth, that the denial of the motion to suppress constituted reversible error. See Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017 (1980). Viewed in this fashion, the evidence supports the finding that exigent circumstances justified the no-knock entry of Muse's apartment.
The "knock-and-announce" rule requires that the police "(1) knock; (2) identify themselves as police officers; (3) indicate the reason for their presence; and (4) wait a reasonable period of time for the occupants to answer the door." Gladden v. Commonwealth, 11 Va. App. 595, 598, 400 S.E.2d 791, 793 (1991). No-knock entries to search pursuant to search warrants "are per se unreasonable unless accompanied by exigent circumstances." Grover v. Commonwealth, 11 Va. App. 143, 145, 396 S.E.2d 863, 864 (1990). In order to satisfy this exception, the officers must "have probable cause to believe that their peril would be increased if they announced their presence or that an unannounced entry is necessary to prevent persons within from escaping or destroying evidence." Id. at 146, 396 S.E.2d at 864.
The mere fact that the object of a search is contraband of a "readily disposable nature" will not satisfy the second exception. Instead, in order for the second exception to obtain, police officers must show probable cause to believe that, were they to announce their presence, identity and purpose, the evidence sought would be destroyed.
Commonwealth v. Woody, 13 Va. App. 168, 170, 409 S.E.2d 170, 171 (1991) (quoting Heaton v. Commonwealth, 215 Va. 137, 139, 207 S.E.2d 829, 831 (1974)).
The Commonwealth asserts that both types of exigent circumstances were present in this case. Regardless of whether the evidence was sufficient to show that a no-knock entry was necessary to prevent the destruction of evidence, we conclude that the officers had probable cause to believe that their peril would have been increased had they announced their presence. As this Court has held previously, "the suspicion of narcotics possession and distribution gives rise to an inference of dangerousness." Dixon v. Commonwealth, 11 Va. App. 554, 557, 399 S.E.2d 831, 833 (1991) (citing Williams v. Commonwealth, 4 Va. App. 53, 67, 354 S.E.2d 79, 87 (1987)). In addition, the officers in this case had been told by an informant that appellant always carried a weapon either on his person or in close proximity when conducting a drug sale, and "the informant felt . . . [appellant] would use it [against the officers] if necessary." That informant also reported having seen appellant in the apartment less than thirty minutes before the warrant was executed. We cannot conclude that the trial court erred in holding that these circumstances were sufficient to provide the officers with the exigent circumstances necessary to conduct a no-knock entry.
II.
In order to justify appellant's conviction for possession of cocaine with intent to distribute, the Commonwealth had to prove beyond a reasonable doubt that he possessed the cocaine, either actually or constructively, with an awareness of its presence and character and with the intent to distribute. See, e.g., Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986). Although the Commonwealth's case was based in part on circumstantial evidence, this type of evidence is sufficient to support a conviction as long as it excludes every reasonable hypothesis of innocence. See McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740 (1987); Johnson v. Commonwealth, 2 Va. App. 598, 604-05, 347 S.E.2d 163, 167 (1986). Although appellant's mere proximity to the items is insufficient to support his conviction, possession may be shown by other evidence including defendant's conduct and statements prior to arrest. See Langhorne v. Commonwealth, 13 Va. App. 97, 102-03, 409 S.E.2d 476, 479-80 (1991) (evidence of attempted flight admissible as factor in establishing guilt); Hairston v. Commonwealth, 5 Va. App. 183, 186, 360 S.E.2d 893, 895 (1987) (discovery of cocaine in clothing of child being held by defendant was insufficient to show knowledge of presence and character of substance). In addition, possession need not be exclusive, and under certain circumstances, one may constructively possess items actually owned or possessed by a joint occupant of the premises. Harrison v. Commonwealth, 12 Va. App. 581, 584-85, 405 S.E.2d 854, 856-57 (1991).
Appellant's brief does not contest the sufficiency of the evidence as it relates to the intent to distribute.
In this case, the circumstantial and direct evidence, considered as a whole and viewed in the light most favorable to the Commonwealth, excludes all reasonable hypotheses of innocence and is therefore sufficient to support the trial court's finding of guilt. The facts here are clearly distinguishable from those in Pemberton v. Commonwealth, ___ Va. App. ___, 440 S.E.2d 420 (1994), where we reversed the conviction of a defendant found in constructive possession of drugs spotted in a nearby trash can in the second floor kitchen. Although Pemberton's behavior while standing near the trash can was suspicious, the evidence showed that several other people were in the kitchen area when the police arrived and that at least one person fled through the kitchen and out the sliding glass door to a deck. The evidence also showed that the police knocked first, waited ten to fifteen seconds, and repeatedly yelled, "Police. Search Warrant." as they entered. Id. at ___, 440 S.E.2d at 421. There we held that
[b]ecause a number of people were upstairs and obviously heard the repeated yells of the police as they entered downstairs to execute the search warrant, the evidence does not exclude the reasonable hypothesis that the unnamed person who fled through the kitchen and out the sliding kitchen door to the outside deck could have discarded the drugs in the trash can on his way through the kitchen.
Id. at ___, 440 S.E.2d at 422.
In this case, by contrast, the police entered suddenly and without warning, and appellant, who was seated in view of the door, jumped out of his seat and attempted to flee. Bags of cocaine and paraphernalia and a loose $10 bill were found on the floor directly beside the chair in which appellant had been sitting. Although there were two other people in the room at the time, both were sitting over eight feet away from the drugs. When appellant became extremely excited and attempted to flee, the room's other occupants remained seated and calm. Finally, the officers found $294 stuffed into appellant's pants pocket. The only reasonable hypothesis flowing from this evidence is that appellant constructively possessed the cocaine with knowledge of its presence and character. It is irrelevant that his possession may have been joint with one or more other occupants of the apartment.
For these reasons, we affirm appellant's conviction.
Affirmed.