Armstead v. Commonwealth Of Va.

56 Va.App. 569

695 S.E.2d 561

Raymont Dante ARMSTEADv.COMMONWEALTH of Virginia.

Record No. 1347-09-1.

Court of Appeals of Virginia Chesapeake.

July 27, 2010.

Charles E. Haden, Hampton, for appellant.

Leah A. Darron, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: FRANK, KELSEY and POWELL, JJ.

KELSEY, Judge.

The trial court found Raymont Dante Armstead guilty of providing false information to a law enforcement officer, driving on a suspended operator's license, possession of cocaine with intent to distribute, and possession of marijuana. On appeal, Armstead contends the court should have suppressed most, if not all, of the incriminating evidence. He also claims the evidence was insufficient to support his drug convictions. Finding neither argument persuasive, we affirm.

I.

On appeal, we review the evidence in the “light most favorable” to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This principle requires us to “discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted).

In addition, our examination of the record “is not limited to the evidence mentioned by a party in trial argument or by the trial court in its ruling.” Bolden v. Commonwealth, 275 Va. 144, 147, 654 S.E.2d 584, 586 (2008). In determining whether there is evidence to sustain a conviction, an appellate court must consider “all the evidence” admitted at trial that is contained in the record. Hamilton v. Commonwealth, 279 Va. 94, 103, 688 S.E.2d 168, 173 (2010) (quoting Bolden, 275 Va. at 147, 654 S.E.2d at 586).

In July 2006, a Newport News police officer made a stop of a vehicle suspected of violating a city noise ordinance. Armstead was alone in the vehicle. The officer asked Armstead for his driver's license and vehicle registration. Armstead said he currently held a Virginia driver's license but had no type of documentary identification with him. He provided verbal information including a name, birth date, and social security number. The officer checked this information on his computer and concluded the information was likely false.

Armstead then informed the officer he was licensed in Washington D.C. The officer checked this information and determined the only driver's license associated with the name given had expired. Believing Armstead again provided false information, the officer informed him he was under arrest.

It was impossible, however, to fill out the arrest paperwork without knowing Armstead's true identity. “If there's no I.D.,” the officer testified, “there's no way to verify his identity.” Before leaving the scene, the officer decided to search the vehicle. At trial,¹ the officer explained:

Q: And just for the purpose of the record, why was it you that [sic] placed him under arrest?

A: I believe he was giving me false information ... someone giving me false information leads me to believe they have no intention of appearing in court, and I didn't feel like I could satisfactorily fill out the summons

because I didn't believe with the information at the time that the subject would appear in court. I elected to take him in front of a magistrate.

Q: Were you ultimately able to determine who he was?

A: Yes.

Q: How did you do that?

A: Searched the vehicle incident to arrest and located a wallet with Virginia identification.

While in the vehicle, the officer observed the remains of a marijuana cigar in an open ashtray and two clear plastic bags containing 5.675 grams of crack cocaine in the center console. Another officer later seized the drugs and placed them in evidence retention bags.

After being advised of his Miranda rights, Armstead invoked his right to counsel. The officer then placed Armstead in a police vehicle for transport to the local jail. A female walked up to the scene claiming the vehicle belonged to her. Based on her statements, the officers arrested her. Watching from the police vehicle, Armstead shouted: “It's mine, it's mine, everything in the car is mine.” The officer testified Armstead “continued constantly to scream that from the back of the marked police unit.”

Prior to trial, Armstead filed a written motion to suppress. At the suppression hearing, the prosecutor argued the officer had a right to search the vehicle incident to Armstead's arrest under settled law, citing among other cases New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). The prosecutor focused on the probable cause justifying Armstead's arrest. Armstead's counsel argued the arrest was pretextual and a mere ruse to search the vehicle.

Judge, the argument is that the information he gave came back as a valid identity in Washington, D.C. and that merely we have a fishing expedition. The officer has some desire to search the vehicle and uses that pretext that initially said this or that, and “I just suspect that maybe he's not who he says he is, so I'm not going to give him a summons,” kind of on a whim, the argument is he's finding any excuse to

search the vehicle, and the search should be declared invalid.

The trial court denied the motion to suppress, finding the officer had probable cause to arrest Armstead. Correctly applying then-current law, the court concluded a valid arrest ipso facto authorized the vehicle search. “The issue really is not what happens after the arrest,” the court explained, “the issue is the ability to arrest. Clearly, once the arrest is made, somebody can search the car.”

At trial, Armstead testified he never shouted that everything in the vehicle belonged to him. He denied any knowledge of the cocaine and said the car belonged to the woman, his fiancée. She testified the car was hers, but said nothing about the drugs. On cross-examination, Armstead and his fiancée admitted they were convicted felons.

Sitting as factfinder, the trial court rejected Armstead's testimony and found him guilty of providing false identity information to a law enforcement officer in violation of Code § 18.2-186.3, driving on a suspended or revoked operator's license (second or subsequent offense) in violation of Code § 46.2-301, possession of cocaine with intent to distribute under Code § 18.2-248, and possession of marijuana in violation of Code § 18.2-250.1. The court entered final conviction and sentencing orders on May 1, 2009.

Armstead filed a notice of appeal and, on July 13, 2009, moved the court to authorize bail pending appeal. At the bail hearing, Armstead's counsel argued for the first time the search of the vehicle violated the rule recently adopted by Arizona v. Gant, --- U.S. ----, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). The trial court denied the request for bail pending appeal.

II.

A. Motion to Suppress-Arizona v. Gant

On appeal, Armstead argues the trial court violated the rule recently announced in Arizona v. Gant, --- U.S. ----, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), when it refused to grant the motion to suppress. He contends we should apply Gant retroactively and doing so would necessarily require the application of the exclusionary rule to his case. We do not address the exclusionary rule issue ² because “the best and narrowest ground available” for decision, Kirby v. Commonwealth, 50 Va.App. 691, 698 n. 2, 653 S.E.2d 600, 603 n. 2 (2007) (citation omitted), is the first premise of Armstead's argument-that the trial court's decision is inconsistent with Gant.³ We do not believe it is.

Prior to Gant, many courts (including Virginia's appellate courts) understood New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), to permit wholly suspicionless searches of vehicles after a valid arrest of a recent occupant. See Glasco v. Commonwealth, 257 Va. 433, 513 S.E.2d 137 (1999); Cason v. Commonwealth, 32 Va.App. 728, 530 S.E.2d 920 (2000); White v. Commonwealth, 24 Va.App. 446, 482 S.E.2d 876 (1997). Gant rejected this broad view of Belton and limited vehicular searches incident to arrest to situations where (i) an unsecured arrestee is within reach of the passenger compartment of the vehicle, or (ii) it is “ reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Gant, 129 S.Ct. at 1719 (citation omitted) (emphasis added). In this respect, Gant addressed only the “circumstances unique to the vehicle context” arising out of a “search incident to a lawful arrest” of a recent occupant. Id.⁴

Here, the officer testified he believed Armstead “was giving me false information” concerning his identity and the status of his driver's license. The officer's belief was justified. Armstead initially claimed to possess a valid Virginia license and provided verbal information including a name, birth date, and social security number-which proved to be false. Armstead then, claiming the same identity, said he had a valid D.C. license. That, too, proved to be inaccurate. Throughout the encounter, Armstead insisted he had no documentation of his identity. These circumstances established probable cause to arrest Armstead for violating Code § 18.2-186.3, which prohibits the use of false identity information to avoid summons, arrest, or prosecution, or to impede a criminal investigation.⁵

The power to arrest Armstead for providing false identity information under Code § 18.2-186.3 authorized the officer to search the vehicle because it was “reasonable to believe” the vehicle “might” contain evidence of that crime Gant, 129 S.Ct. at 1719 (citation omitted), specifically Armstead's true identity and his driving status. See State v. Gordon, 110 Or.App. 242, 821 P.2d 442, 443-44 (1991) (“Evidence of defendant's identity was relevant to the crime of giving false information to an officer. Accordingly, the search of defenda...