Arrington v. Com.

674 S.E.2d 554

53 Va. App. 635

Tony C. ARRINGTON v. COMMONWEALTH of Virginia.

Record No. 3072-07-1.

Court of Appeals of Virginia.

March 31, 2009.

Robert H. Knight, III, Assistant Public Defender (Office of the Public Defender, on briefs), for appellant.

Josephine F. Whalen, Assistant Attorney General II (Robert F. McDonnell, Attorney General, on briefs), for appellee.

Present: Judges McCLANAHAN, HALEY and PETTY.

McCLANAHAN, Judge.

Arrington was convicted, after a bench trial, of misdemeanor possession of marijuana. On appeal, he argues the marijuana was obtained during an illegal search and seizure in violation of his Fourth Amendment rights. Because Arrington failed to challenge the admissibility of the evidence obtained in the seizure, he is procedurally barred from raising this issue pursuant to Code § 19.2-266.2 and Rule 5A:18.

I. BACKGROUND¹

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) (citation omitted). That 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 that may be drawn therefrom.'" Kelly v. Commonwealth, 41 Va.App. 250, 254, 584 S.E.2d 444, 446 (2003) (en banc) (quoting Watkins v. Commonwealth, 26 Va.App. 335, 348, 494 S.E.2d 859, 866 (1998)). See also Bolden v. Commonwealth, 275 Va. 144, 147-48, 654 S.E.2d 584, 586 (2008); Molina v. Commonwealth, 272 Va. 666, 671, 636 S.E.2d 470, 473 (2006); Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005); Walton v. Commonwealth, 255 Va. 422, 425-26, 497 S.E.2d 869, 871 (1998).

Officer Frank Curott of the Norfolk Police Department stopped Arrington when he observed Arrington riding a motorized toy in the street in a "high drug" area of Norfolk. Officer Curott asked Arrington if he had a driver's license, and Arrington replied that he did not. The officer performed a warrant check and began to issue Arrington a summons for riding a toy in the street, in violation of a Norfolk City ordinance, when Arrington's cell phone rang. As Arrington spoke to the caller, he began furtively waving his arms in the air and looking around. Officer Curott had the impression Arrington was getting ready to run and asked him to end the phone call. Arrington did not comply, and Officer Curott handcuffed him and conducted a pat-down search. When he did so, Officer Curott felt a golf-ball sized bulge in Arrington's right front pants pocket. Officer Curott removed the object, which was later determined to be marijuana wrapped in plastic.

Arrington did not file a pretrial motion to suppress the evidence obtained in the seizure and did not object during the Commonwealth's case to the admissibility of the evidence seized. After the Commonwealth presented its evidence at the bench trial, Arrington moved to strike the Commonwealth's evidence on the ground that the search was illegal because the officer "lacked probable cause to seize [Arrington] and pat him down." The trial court overruled the motion. At the conclusion of the evidence, Arrington renewed his motion to strike on the basis that the "search was illegal" since there was no "probable cause to stop [him]." He further argued that "even if there was probable cause to stop [him]," there was "no reasonable suspicion to search [him]." The trial court overruled the motion and convicted Arrington of misdemeanor possession of marijuana.

II. ANALYSIS

Arrington maintains the marijuana discovered by Officer Curott was the product of an illegal search and seizure in violation of the Fourth Amendment.² The proper vehicle for enforcement of the privacy rights guaranteed by the Fourth Amendment is through suppression of the evidence obtained during an illegal search and seizure. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691-92, 6 L.Ed.2d 1081 (1961). Thus, "the issue is not the abstract propriety of the police conduct, but the admissibility against [the defendant] of the evidence uncovered by the search and seizure." Terry v. Ohio, 392 U.S. 1, 12, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889 (1968); see id. at 13, 88 S.Ct. at 1875-76 ("[E]videntiary rulings provide the context in which the judicial process of inclusion and exclusion approves some conduct as comporting with constitutional guarantees and disapproves other actions by state agents.").

Pursuant to Code § 19.2-266.2, "[d]efense motions or objections seeking ... suppression of evidence on the grounds such evidence was obtained in violation of the ... Fourth ... Amendment[ ] to the Constitution ... shall be raised by motion or objection." Code § 19.2-266.2(A)(i). This section further provides:

Such a motion or objection in a proceeding in circuit court shall be raised in writing, before trial. The motions or objections shall be filed and notice given to opposing counsel not later than seven days before trial.... A hearing on all such motions or objections shall be held not later than three days prior to trial in circuit court, unless such period is waived by the accused, as set by the trial judge. The circuit court may, however, for good cause shown and in the interest of justice, permit the motions or objections to be raised at a later time.

Code § 19.2-266.2(B).

"The plain language of Code § 19.2-266.2 requires that a defendant seeking to suppress evidence based on a violation of his Fourth Amendment rights must file a suppression motion no later than seven days before trial, absent `good cause shown and in the interest of justice.'" Upchurch v. Commonwealth, 31 Va.App. 48, 51, 521 S.E.2d 290, 291-92 (1999). "Failure to follow this statutory requirement results in a waiver of an accused's constitutional challenge to the admissibility of the evidence." Magruder v. Commonwealth, 275 Va. 283, 300, 657 S.E.2d 113, 122 (2008). See, e.g., Schmitt v. Commonwealth, 262 Va. 127, 146, 547 S.E.2d 186, 199 (2001) (argument regarding admissibility of tape recording waived because appellant failed to comply with statutory requirements of Code § 19.2-266.2), cert. denied, 534 U.S. 1094, 122 S.Ct. 840, 151 L.Ed.2d 719 (2002); Johnson v. Commonwealth, 37 Va.App. 634, 644-45, 561 S.E.2d 1, 6 (2002) (constitutionality of a code section not preserved for appeal because appellant failed to comply with Code § 19.2-266.2); Morrison v. Commonwealth, 37 Va.App. 273, 279, 557 S.E.2d 724, 727 (2002) (Court refusing to address constitutional challenge to statute where defendant failed to comply with Code § 19.2-266.2). The filing and notice requirements of Code § 19.2-266.2 "`serve[ ] legitimate state interests in protecting against surprise, harassment, and undue delay.'" Magruder, 275 Va. at 300, 657 S.E.2d at 122 (quoting Michigan v. Lucas, 500 U.S. 145, 152-53, 111 S.Ct. 1743, 1747-49, 114 L.Ed.2d 205 (1991)).³ Arrington failed to file a motion to suppress the evidence seized by Officer Curott in accordance with the requirements of Code § 19.2-266.2.⁴ Therefore, he waived his right to challenge its admissibility.⁵

In addition to his noncompliance with Code § 19.2-266.2 requiring a pretrial motion to suppress the evidence, Arrington failed to object to the admissibility of the evidence at trial. See Bitar v. Rahman, 272 Va. 130, 139, 630 S.E.2d 319, 324 (2006) (An objection to admissibility of evidence must be made when the evidence is presented.). Arrington was required to challenge the admissibility of the evidence in the trial court to preserve his argument on appeal that the evidence was unlawfully seized. See Rule 5A:18.⁶ Applying Rule 5A:18, we have held "this Court `will not consider an argument on appeal [that] was not presented to the trial court.'" Farnsworth v. Commonwealth, 43 Va.App. 490, 500, 599 S.E.2d 482, 487 (2004) (quoting Ohree v. Commonwealth, 26 Va.App. 299, 308, 494 S.E.2d 484, 488 (1998)). "`Rule 5A:18 applies to bar even constitutional claims.'" Id. (quoting Ohree, 26 Va.App. at 308, 494 S.E.2d at 488). "The purpose of [this] rule is to ensure that the trial court and opposing party are given the opportunity to intelligently address, examine, and resolve issues in the trial court, thus avoiding unnecessary appeals." Andrews v. Commonwealth, 37 Va.App. 479, 493, 559 S.E.2d 401, 408 (2002). By failing to object to the evidence obtained in the seizure, Arrington deprived the trial court of the opportunity to consider the admissibility of the evidence, thus waiving his argument on appeal.⁷

Arrington concedes he did not file a motion to suppress the evidence or object to the admission of the evidence at trial but contends he "essentially" moved to suppress the evidence when he moved to strike the Commonwealth's evidence. The record does not show Arrington challenged the admissibility of the evidence at any time, including during his motion to strike. Nevertheless, "[a] litigant may not, in a motion to strike [the evidence], raise for the first time a question of admissibility of evidence. Such motions deal with the sufficiency rather than the admissibility of evidence." Woodson v. Commonwealth, 211 Va. 285, 288, 176 S.E.2d 818, 821 (1970); see also Poole v. Commonwealth, 211 Va. 258, 260, 176 S.E.2d 821, 823 (1970); McCary v. Commonwealth, 36 Va. App. 27, 40, 548 S.E.2d 239, 245 (2001) ("[A] motion to strike properly challenges only the sufficiency of the evidence offered up to that point, not the underlying admissibility of the evidence.").⁸ "The question [Arrington] sought to raise by his motion-whether [the search was] illegal ... was purely a question of admissibility of evidence." Poole, 211 Va. at 260, 176 S.E.2d at 823. And that question could not be raised in the context of Arrington's motion to strike. Woodson, 211 Va. at 288-89, 176 S.E.2d at 821.⁹

Because Arrington failed to file a motion to suppress pursuant to Code § 19.2-266.2 or otherwise object to the admissibility of the...