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HomeMy WebLinkAbout12-7495RYAN LEE CARVALHO, Petitioner v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT: OF TRANSPORTATION, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN~}TY, PENNSYLVANIA NO. )o~_~~~5 ~iVl` LICENSE SUSPENSION APPEALrY r-T, ~i, J~~ ~~ ~~ ~.. ~z -." c.~' - r-- . PETITION FOR LICENSE SUSPENSION APPEAL -_.7 E'-i ^~ ~-~, :--~ w -~; .,a R„ J-:J 1. The petitioner is Ryan Lee Carvalho (hereinafter "petitioner") who is an adult individual who resides at 103 Earl Street, Boiling Springs, Cumberland County, Pennsylvania, 17007. 2. The respondent is the Commonwealth of Pennsylvania, Department of Transportation (hereinafter "PennDOT"), with a principal place of business located at Third Floor, Riverfront Office Center, 1101 South Front Street, Harrisburg, Dauphin County, Pennsylvania, 17104. ~:~ - , -~. ~_: !'~7 ~'~~ :~~ , _.-; t. _: t~, _.r ^; :- 3. The petitioner was mailed a notice of license suspension from PennDOT dated November 15, 2012, with an effective suspension date of December 20, 2012. A copy of the notice of license suspension is attached hereto as "Exhibit A.." 4. The proposed license suspension arises from petitioner's arrest in the state of Virginia for a legal infraction. 5. The proposed suspension is illegal in that the Petitioner's arrest in Virginia will not result in a conviction as required by section 1532C of the Code. ~,~,~~ ~1v3.~S~ a ~`~ ~?~ age ~~a. WHEREFORE, petitioner requests that this Honorable Court uphold the petitioner's appeal and dismiss and rescind the proposed suspension. Respectfully submitted, BARK SCHERER LLC Mic ael .Scherer, Esquire 19 est South Street Carlisle, Pennsylvania 17013 (717) 249-6873 VERIFICATION The statements in the foregoing Petition For License Suspension Appeal are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsifications to authorities. DATE: ~ Z - iZ- i i `'~/~-ww ~.-~e t`'~v-wr.~.~ Ryan Lee Carvalho (:UMMUNWLAL I H U~ •'~NNSYLVANlA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: NOVEMBER 15, 2012 RYAN LEE CARVALHO WID # 123136396433500 D01 103 EARL ST PROCESSING DATE 1],/08/2012 DRIVER LICENSE # 29238667 BOILING SPRGS PA 17007 DATE OF BIRTH 01/30/1991 Dca~~ M'. CARVALHU: This is an Official Notice ofi the Suspension of your Driving Privilege as authorized by Section 1532C of the Pennsylvania Vehicle Code as a result of your 08/28/2012 conviction in VIRGINIA. Your driving privilege is SUSPENDED for a period of 6 MONTH(S) effective 12i20i2012 at 12:01 a.m. Your driving record reflects an adjudication on 08/03/2012 of A33 of the AAMVA Code Dictionary, ILL POS CNTRD SUB that is similar to violating Section 13A16 of Pennsylvania's Controlled Substance, Drug, Device and Cosmetic Act. The AAMVA Code Dictionary was developed to support the Commercial Motor Vehicle Act of 1986 and allows states to share conviction information. Before PennDOT can restore your driving privilege, you must follow the instructions in this letter for COMPLYING WITH THIS SUSPENSION, PAYING THE RESTORATION FEE and PROVIDING PROOF OF INSURANCE. You should follow ALL instructions very carefu? li%. E~~en zf you have served a1,1 the time on the suspensionirevocation, we cannot restore your driving privilege until all the requirements are satisfied. COMPLYING WITH THIS SUSPENSION You must return all current Pennsylvania driver's licenses, learner's permits, temporary driver's licenses (camera cards) in your possession on or before 12/20/2012. You may surrender these items before, 12/20/2012, for earlier credit; however, you may not drive after these items are surrendered. YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR IDENTIFICATION PURPOSES. However, you may apply far and obtain a photo identification card at any Driver License Center for a cost of 513.50. You must present two (2} forms of proper __ _ _ --- "EXHIBIT A" 123136396433500 identification (e.g., birth certificate, valid U.S. passport, marriage certificate, etc.) in order to obtain your photo identification card. You will not receive credit toward serving any suspension until we receive your license(s). Complete the following steps to acknowledge this suspension. 1. Return all current Pennsylvania driver's licenses, learner's permits and/or camera cards to PennDOT. If - - -- - _ you do not have any of these items, sen"d a sworn - -- notarized letter stating you are aware of the suspension of your driving privilege. You must specify in your letter why you are unable to return your driver's license. Remember: You may not retain your driver's license for identification purposes. Please send these items to: Pennsylvania Department of Transportation Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 2. Upon receipt, review and acceptance of your Pennsylvania driver's license(s), learner's permit(s), and/or a sworn notarized letter, PennDOT will send you a receipt confirming the date that credit began. If you do not receive a receipt from us within 3 weeks, please contact our office. Otherwise, you will not be given credit toward serving this suspension. PennDOT phone numbers are listed at the end of this letter. 3. If you do not return all current driver license products, we must refer this matter to the Pennsylvania - S-tote.. Police__ for__p_rosecu ion__under SECTION 1571(a)(4) of the Pennsylvania Vehicle Code. - PAYING THE RESTORATION FEE You must pay a restoration fee to PennDOT to be restored from a suspension/revocation of your driving privilege. To pay your restoration fee, complete the following steps: 1. Return the enclosed Application for Restoration. The amount due is listed on the application. 2. Write your driver's license number (listed on the first page) on the check or money order to ensure proper credit. 3. Fallow the payment and mailing instructions on the back of the application. 123136396433500 Please note: Paying the restoration fee DOES NOT satisfy the requirement to acknowledge your suspension/revocation. If you have not acknowledged your suspension/revocation, please follow the instructions listed under "Complying with this Suspension/Revocation". PROVIDING PROOF OF INSURANCE Within the last 30 days of your suspension/revocation, we will send you a letter asking that you provide proof of insurance at- that time. This lette-r -will- list- acceptable _. documents and what will be needed if you do not own a vehicle registered in Pennsylvania. IMPORTANT: Please make sure that PennDOT is notified if you move from your current address. You may notify PennDOT of your address change by calling any of the phone numbers listed at the end of this letter. APPEAL You have the right to appeal this action to the Court of Common Pleas CCivil Division) within 30 days of the mail date, NOVEMBER 15, 2012, of this letter. If you file an appeal in the County Court, the Court will give you a time-stamped certifiied copy ofi the appeal. In order for your appeal to be valid, you must send this time-stamped certified Copy of the appeal by certified mail to: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Remember, this is an OFFICIAL NOTICE OF SUSPENSION. You must return all current Pennsylvania driver license products to PennDOT by 12/20/2012. Sincerely, ~~ ~~e~ Janet L. Dolan, Director Bureau of Driver Licensing CERTIFICATE OF SERVICE I hereby certify that on December ~3 , 2012, I, Jennifer S. Lindsay, secretary at Baric Scherer LLC, did serve a copy of the Petition For License Suspension Appeal, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Matthew Haeckler, Esquire Office Of Chief Counsel PA Department of Transportation Riverfront Office Center Legal-Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104 RYAN L. CARVALHO, IN THE COURT OF COMMON Petitioner PLEAS OF CUMBERLAND CUMBERLAND COUNTY V. COMMONWEALTH OF PENNSYLVANIA, NO. 12-7495 CIVIL TERM DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, LICENSE SUSPENSION Respondent APPEAL ORDER AND NOW, this 1 e day of March, 2013, the appeal filed in the above- captioned matter is CONTINUED and RESCHEDULED for the 2nd day of October, 2013, at 9:30 a.m., in Courtroom no. 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT: J. Attest: ✓'Michael A. Scherer, Esq., Baric Scherer LLC, 19 West South Street, Carlisle, PA 17013 Philip M. Bricknell, Esq., Pennsylvania Department of Transportation, Office of Chief Counsel, Riverfront Office Center, 3rd Floor, 1101 South Front Street, Harrisburg, PA 17104-2516 =M M- Qn CD , --4C:o *CD =—n c') 6-n XC) xz:i W CDr"- CD • RYAN L. CARVALHO, • IN THE COURT OF COMMON Petitioner : PLEAS OF CUMBERLAND : CUMBERLAND COUNTY v. • COMMONWEALTH OF PENNSYLVANIA, : NO. 12-7495 CIVIL TERM DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, : DRIVER LICENSE Respondent : SUSPENSION APPEAL ORDER AND NOW, this 2"d day of October, 2013, the appeal filed in the above- captioned matter is: REMANDED to the Department of Transportation for correction of its records. DISMISSED and the suspension which is the basis of this appeal shall be REINSTATED. SUSTAINED and the suspension which is the basis of this appeal shall be RESCINDED. WITHDRAWN and the suspension which is the basis of this appeal shall be REINSTATED. CONTINUED and RESCHEDULED for the � day of a, �? m v , 2013, at l,o et m., in Courtroom c, "' Room No. 6 of the Cumberland County Courthouse, ' Carlisle, Pennsylvania. cp T r Lti BY THE COURT: J. Attest: Michael A. Scherer, Esq., Baric Scherer LLC, 19 West South Street, Carlisle, PA 17013 Xhilip M. Bricknell, Esq., PennDOT, Riverfront Office Center, Office of Chief Counsel, l !1 3rd Floor, 1101 South Front Street, Harrisburg, PA 17104-2516 C {e' MLev...1'6C oil 02 RYAN L. CARVALHO, IN THE COURT OF COMMON PLEAS OF Petitioner CUMBERLAND COUNTY, PENNSYLVANIA THE NINTH JUDICIAL DISTRICT v 12-7495 CIVIL TERM COMMONWEALTH OF CIVIL ACTION - LAW PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, DRIVER LICENSE Respondent SUSPENSION APPEAL IN RE: CONTINUANCE ORDER OF COURT AND NOW, this 13th day of November, 2013, upon the request of Petitioner, unopposed by Respondent, a continuance is granted. Petitioner and Respondent are directed to appear for a hearing on the appeal filed in this matter on 17 January 2014 , at 9 : 30 a.m. , in Courtroom Number 4 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court Thomas A. lPlacey C. P.J. Kelly Edward Solomon, Esquire Department of Transportation Vehicle & Traffic Law Division Riverfront office Center 3rd Floor 1101 South Front Street Harrisburg, PA 17104 For Plaintiff Michael A. Scherer, Esquire 19 West South Street ` G Carlisle, PA 17013 -nom For Petitioner MW rn c� 1 �-- C!i :mae LL 2.//1,3 , _ter RYAN L. CARVALHO, IN THE COURT OF COMMON Petitioner PLEAS OF CUMBERLAND CUMBERLAND COUNTY V. COMMONWEALTH OF PENNSYLVANIA, NO. 12-7495 CIVIL TERM DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, DRIVER LICENSE Respondent SUSPENSION APPEAL ORDER AND NOW, this 17TH day of January, 2014, the appeal filed in the above- captioned matter is: X REMANDED to the Department of Transportation for correction of its records. DISMISSED and the suspension which is the basis of this appeal shall be REINSTATED. SUSTAINED and the suspension which is the basis of this appeal shall be RESCINDED. WITHDRAWN and the suspension which is the basis of this appeal shall be REINSTATED. CONTINUED and RESCHEDULED for the day of 2014, at ,.m., in Courtroom . ,� Room No. of the Cumberland County Courthouse, .- Carlisle, Pennsylvania. BY THE COURT: Cry! 4 7 J. Attest: Ai'Chael A. Scherer, Esq., 19 West South Street, Carlisle, PA 17013 hilip M. Bricknell, Esq., PennDOT, Riverfront Office Center, Office of Chief Counsel, 3rd Floor, 1101 South Front Street, Harrisburg, PA 17104-2516 0� �'° ago• . � : J y co El 1 FA sr I. CL v ai NV ok Tim! , p .eJ• :. w `j ,,,,� �. fit . C "' •. A. 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A' », C� o�I CD gOti 9<O I g. „ j 3 € c tie w 3 cs� p 3 € € E € { �s � �--' 3 i i � � 6 � Q,o � �� f �' € " � � �+ a• f oo '�y E € ' i E Cpl a: Li m 1 f '.:::3.,� N N N M M h+ Y M N V M M h•+ O A ok �"} O N A W N � W W N N N I-+ M ►+ ►+ O O� A O f :� ��' � W A 00 N J W VI ►+ O W W W W M N ,3... I R) n �' 00 4 f �r1 x ttr17 '� O O `a OR tri : f, Page 1 LexisNexise 1 of 1 DOCUMENT CODE OF VIRGINIA Copyright(c)2013 by Matthew Bender&Company,Inc. a member of the LexisNexis Group. All rights reserved *** Current through the 2013 Regular Session,and 2013 Special Session 1. *** ***Annotations Current For Cases Received by October 25,2013. *** TITLE 18.2. CRIMES AND OFFENSES GENERALLY CHAPTER 7. CRIMES INVOLVING HEALTH AND SAFETY ARTICLE 1. DRUGS GO TO CODE OF VIRGINIA ARCHIVE DIRECTORY Va.Code Ann. § 18.2-250.1 (2013) § 18.2-250.1. Possession of marijuana unlawful A.It is unlawful for any person knowingly or intentionally to possess marijuana unless the substance was obtained directly from,or pursuant to,a valid prescription or order of a practitioner while acting in the course of his professional practice,or except as otherwise authorized by the Drug Control Act(§ 54.1-3400 et seq.). Upon the prosecution of a person for violation of this section,ownership or occupancy of the premises or vehicle upon or in which marijuana was found shall not create a presumption that such person either knowingly or intentionally possessed such marijuana. Any person who violates this section shall be guilty of a misdemeanor,and be confined in jail not more than thirty days and a fine of not more than$500,either or both;any person,upon a second or subsequent conviction of a violation of this section, shall be guilty of a Class 1 misdemeanor. B.The provisions of this section shall not apply to members of state,federal,county,city or town law-enforcement agencies,jail officers,or correctional officers,as defined in§ 53.1-1,certified as handlers of dogs trained in the detec- tion of controlled substances when possession of marijuana is necessary for the performance of their duties. HISTORY: 1979,c.435; 1991,c.649; 1998,c. 116. NOTES: CROSS REFERENCES.--As to sale,possession,etc.,of controlled substance or marijuana by inmate in pe- nal institution or in custody of employee,see § 53.1-203. THE 1998 AMENDMENT inserted"jail officers"in subsection B. LAW REVIEW.--For survey of Virginia criminal law for the year 1978-1979,see 66 Va.L.Rev.241 (1980). MICHIE'S JURISPRUDENCE REFERENCES.--For related discussion,see 513 M.J.Criminal Procedure, §86. DOUBLE JEOPARDY.--Two convictions for possession of drugs with intent to distribute within 1,000 feet of a school under§ 18.2-255.2 did not violate the Double Jeopardy Clause under U.S. Const.,Amend.V and Va. Const.,Art.1, § 8 as marijuana and cocaine were treated in the Virginia Code as separate and discrete illegal substances under§§ Page 2 Va. Code Ann. § 18.2-250.1 18.2-250, 18.2-250.1,and 54.1-3448.Fullwood v.Commonwealth, 54 Va.App. 153,676 S.E.2d 348,2009 Va.App. LEXIS 224(2009),affd,279 Va. 531,689 S.E.2d 742,2010 Va.LEXIS 39(2010). PROOF OF CONSTRUCTIVE POSSESSION.--Constructive possession may be shown by establishing that the mari- juana was known to and subject to the dominion and control of the accused.Hambury v. Commonwealth,3 Va.App. 435,350 S.E.2d 524(1986). KNOWLEDGE OF PRESENCE AND CHARACTER OF CONTROLLED SUBSTANCE may be shown by evidence of the acts,statements or conduct of the accused.Hambury v.Commonwealth,3 Va.App.435,350 S.E.2d 524(1986). PROXIMITY AND OCCUPANCY AS CIRCUMSTANCES TO BE CONSIDERED.--While mere proximity to con- traband is insufficient to establish possession,and an accused's occupancy of the premises does not give rise to a pre- sumption of possession,these factors are circumstances to be considered by the jury with other evidence in determining whether a defendant constructively possessed drugs.Lane v.Commonwealth,223 Va.713,292 S.E.2d 358(1982); Hambury v. Commonwealth, 3 Va.App.435,350 S.E.2d 524(1986). Totality of the evidence sufficiently proved that defendant constructively possessed the contraband,which was in plain sight and within defendant's reach in a place where defendant's personal belongings were also found.Harris v. Commonwealth,No.2183-01-1,2002 Va.App.LEXIS 432(Ct.of Appeals July 30,2002). SEARCH PROPER. --Where the officer detected a strong odor of marijuana coming from the car and the defendant, saw the defendant furtively stash a black object beneath the seat,fumble suspiciously through looking for his license, and fail to produce any identification,there was probable cause to search the defendant. Savage v.Commonwealth,No. 0799-02-1,2003 Va.App.LEXIS 187(Ct.of Appeals Apr. 1,2003). SUPPRESSION MOTION PROPERLY DENIED. --Defendant's suppression motion was properly denied,and the Fourth Amendment was not violated,where:(1)a police officer had a reasonable,articulable suspicion that defendant was the man who was wanted on the capias as defendant's physical characteristics and clothing matched the description provided by dispatch,and defendant was near the address provided by dispatch in the backseat of a taxi matching the description provided by dispatch;(2)the officer was justified in detaining defendant further as he gave obviously false identifying information;and(3)when defendant struck the officer,he had probable cause for the arrest,which led to the search incident to a lawful arrest in which the drugs were discovered.Jackson v.Commonwealth,No.0628-02-3,2003 Va.App.LEXIS 340(Ct.of Appeals June 17,2003). Where a police officer acted appropriately in removing defendant from a car and restraining him after defendant failed to comply with an order to show defendant's hands,the discovery of the drugs resulted from that removal and restraint;accordingly,the trial court correctly denied defendant's motion to suppress and convicted defendant of posses- sion of drugs under§§ 18.2-250 and 18.2-250.1. Smith v.Commonwealth,No. 1947-03-1,2004 Va.App.LEXIS 243 (Ct.of Appeals May 25,2004). In a case in which defendant appealed his conviction for violating§§ 18.2-248 and 18.2-250.1,he argued unsuccess- fully that the circuit court erred in denying his motion to suppress because he had been subjected to a strip search in violation of the Fourth Amendment.Defendant had not been subjected to a strip search,he was not naked at any time during his encounter with police,neither his genitals nor his buttocks were exposed,and,while a police officer saw de- fendant's underwear when he removed the marijuana and cocaine,his underwear was never removed.Bell v. Common- wealth,2009 Va.App.LEXIS 420(Sept.22,2009). SUBSEQUENT CONVICTION UNDER THIS SECTION REQUIRED FOR ENHANCED PUNISHMENT.--In order for the Commonwealth to take advantage of the enhanced punishment provided in this section,it must prove a second or subsequent conviction for unlawful possession of marijuana under this section.Any other interpretation would be con- trary to the express language of the statute.Pierce v. Commonwealth,2 Va.App.383,345 S.E.2d 1 (1986). CONVICTION OF FIRST OFFENSE BEFORE COMMITTING SECOND OFFENSE NOT REQUIRED.--Subsection A of this section contains no provision requiring that,in order to trigger the enhanced penalty provision,a defendant be convicted of the first offense before committing the second offense.Napier v.Commonwealth,No.0775-90-3 (Ct.of Appeals April 27, 1993). Page 3 Va.Code Ann. § 18.2-250.1 CONVICTIONS UNDER§ 18.2-248.1 MAY NOT BE USED TO ENHANCE PUNISHMENT. --The scheme of pun- ishment under this section does not envision that felony convictions under§ 18.2-248.1,which carries its own severe punishments,be considered under its enhancement provision.Pierce v.Commonwealth,2 Va.App.383,345 S.E.2d 1 (1986). POSSESSION OF MARIJUANA NOT A LESSER-INCLUDED OFFENSE OF DELIVERING MARIJUANA TO A PRISONER.--Circuit court was not precluded by double jeopardy principles from trying defendant for delivering mari- juana to a prisoner,in violation of§ 18.2-474.1,after she pled guilty in a district court to a charge alleging that she pos- sessed the same marijuana,in violation of this section,because possession of marijuana was not a lesser-included of- fense of delivering marijuana to a prisoner.Logan v.Commonwealth,43 Va.App. 504,600 S.E.2d 133,2004 Va.App. LEXIS 374(2004). DEFENDANT COULD BE RETRIED FOR SAME OR GREATER OFFENSE WHERE CONVICTION VACATED. --When the defendant appealed her misdemeanor possession conviction to the circuit court,as she had a right to do un- der§ 16.1-132,her conviction was vacated;therefore,the defendant could be retried for the same or a greater offense without double jeopardy being violated.Peterson v.Commonwealth,5 Va.App. 389,363 S.E.2d 440(1987). The acceptance of the guilty plea to misdemeanor possession did not constitute an inferential finding of not guilty of the greater charge of felony possession. Consequently,the defendant was not impliedly acquitted of felony possession, and she could be retried for felony possession unless some other double jeopardy principle barred reprosecution.Peter- son v. Commonwealth,5 Va.App. 389,363 S.E.2d 440(1987). REFUSAL TO ALLOW SEARCH. --As police officer had no basis to suspect that defendant was engaged in criminal activity or that he was armed,when defendant withdrew his consent to be searched,the officer had no legal basis to continue the encounter.Ellison v.Commonwealth,No. 1619-01-2,2002 Va.App.LEXIS 337(Ct. of Appeals June 11, 2002). EVIDENCE SUFFICIENT TO SHOW POSSESSION OF MARIJUANA.--Evidence fully supported trial court's find- ing that defendant knowingly and intentionally possessed marijuana,where police found it growing near the entrance to defendant's house;the marijuana plant was in a flower bed that defendant had planted;it was the only plant in the flow- er bed that had been watered recently;police found a tray containing hemostats,rolling paper,and enough marijuana to roll a cigarette;and defendant was a longtime smoker of marijuana who had smoked a joint just before the police ar- rived at his home. Walton v.Commonwealth,255 Va.422,497 S.E.2d 869(1998). Evidence was sufficient to support convictions for possession of marijuana,in violation of§ 18.2-250.1,where the trial court could have reasonably concluded that defendant was aware of the presence and character of the drugs found in the console and that he exercised dominion and control over them.Gillard v.Commonwealth,No.0037-02-2,2003 Va.App.LEXIS 437(Ct. of Appeals Aug. 19,2003). Where defendant recently possessed a vehicle,knew of the presence and character the items hidden therein,and the items were subject to defendant's dominion and control,the evidence was sufficient to prove defendant's constructive possession of the cocaine and marijuana found in the vehicle. White v.Commonwealth,No. 0591-03-2,2003 Va.App. LEXIS 539(Ct.of Appeals Oct.28,2003). Evidence was sufficient to support defendants conviction for possession of marijuana where defendant admitted to possessing marijuana that was found inside his home.Breeden v.Commonwealth,43 Va.App. 169,596 S.E.2d 563, 2004 Va.App.LEXIS 257(2004). Evidence was sufficient to support his convictions for possession of a firearm by a felon and possession of marijuana because defendant stated the car where the contraband was found was his car,and defendant provided a key to the of- ficer who found several items with defendant's name in addition to the pistol,bullets,loose marijuana and digital scale. Patterson v.Commonwealth,2006 Va.App.LEXIS 361 (Aug. 8,2006). Evidence was sufficient to prove that defendant constructively possessed marijuana found in a van he owned and was driving.As a bag of marijuana and a smoking device were within arm's reach of the driver's seat,the trial court could infer that defendant knew about the marijuana and intentionally possessed it,and was entitled to reject his theory that someone else placed valuable drugs in the van while it was unlocked at a job site.Wilson v.Commonwealth,--Va. App.--,--S.E.2d--,2006 Va.App.LEXIS 437(Oct. 3,2006). Evidence that defendant fled toward the fence when defendant saw the police,made a pushing or throwing motion over the fence,and immediately thereafter the police found marijuana and cocaine on the other side of the fence in the Page 4 Va.Code Ann. § 18.2-250.1 line of defendant's arm motion was sufficient to support conclusion defendant possessed the marijuana and cocaine. Debroux v.Commonwealth,--Va.App. --,--S.E.2d--,2007 Va.App.LEXIS 40(Feb.6,2007). Evidence that the drugs were found in a vehicle owned and occupied by defendant,that the officer retrieved the drugs from right on top of a console located next to defendant's seat and within defendant's reach,and that 10 syringes were found beneath defendant's seat,permitted an inference that defendant had knowledge of the presence of the drugs. The trial judge was entitled to infer that defendant's explanation was an effort to conceal guilt.Throckmorton v.Com- monwealth,--Va.App.--,-- S.E.2d--,2007 Va.App.LEXIS 196(May 15,2007). Evidence was sufficient to support defendant's convictions for possessing both marijuana and the cocaine found in a vehicle where the drugs were found in the front passenger compartment of the vehicle,which was occupied solely by defendant.While seated in the police vehicle,defendant emphatically shouted that everything in the vehicle belonged to him,as defendant's fiance came up on foot and claimed that the vehicle belonged to her.Even though defendant later denied the statements,the trial court was at liberty to judge defendant's credibility.Armstead v.Commonwealth, 56 Va. App. 569,695 S.E.2d 561,2010 Va.App.LEXIS 300(2010). INSUFFICIENT EVIDENCE OF CONSTRUCTIVE POSSESSION.--Convictions for possession of cocaine with the intent to distribute,third or subsequent offense,and possession of marijuana were reversed because defendant's only proven connection to the drugs was defendant's proximity to them;no evidence proved that the officer or anyone else saw defendant with drugs or saw defendant place the drugs in the plywood.In addition,defendant's fingerprints were not on the bags recovered,which was relevant as the Commonwealth's theory was that defendant was holding the drugs down the front of defendant's pants in ungloved hands.Maxwell v.Commonwealth,--Va.App.--,--S.E.2d--,2006 Va.App.LEXIS 518(Nov.21,2006). While defendant's conduct may have been suspicious,no one ever saw defendant with the marijuana at issue,de- fendant never made any incriminating statements concerning the drugs,and the one fingerprint lifted from a bag con- taining cocaine,not marijuana,did not belong to defendant but belonged to someone else.As a result,the State did not show that defendant was ever in such close proximity as would support a finding that defendant was aware of both the presence and the character of the marijuana,and that it was subject to defendant's dominion and control,such that de- fendant could be convicted pursuant to§ 18.2-250.1.Maxwell v.Commonwealth,275 Va.437,657 S.E.2d 499,2008 Va.LEXIS 21 (2008). APPLIED in Dukes v.Commonwealth,227 Va. 119,313 S.E.2d 382(1984);Livingston v. Commonwealth,21 Va. App. 621,466 S.E.2d 757(1996);Peake v.Commonwealth,46 Va.App.35,614 S.E.2d 672,2005 Va.App.LEXIS 238(2005);Wilson v.Commonwealth,272 Va. 19,630 S.E.2d 326,2006 Va.LEXIS 60(2006);Epps v.Common- wealth,59 Va.App. 71,717 S.E.2d 151,2011 Va.App.LEXIS 351 (2011). CIRCUIT COURT OPINIONS MOTION TO SUPPRESS EVIDENCE. --Because a reasonable person in defendant's position would have believed that after an officer's explanation regarding defendant's failure to possess a city and county tax sticker,and after defendant's registration and license were cleared the traffic stop was over and defendant was free to leave,defendant's consent to search thereafter was involuntary,warranting suppression of the marijuana and cocaine seized from his person.Com- monwealth v.Cooper,68 Va.Cir. 515,2004 Va.Cir.LEXIS 367(Charlottesville Dec.6,2004). SUPPRESSION MOTION PROPERLY DENIED. --Because a pat-down search of defendant,after defendant had al- ready told the searching officer that he had two knives on him,did not move out of the bounds of a reasonable Terry stop and could not be characterized as custody associated with a formal arrest,defendant was not entitled to Miranda warnings;hence,without any custody,defendant's statement that the hard tube-like mound in his pocket was marijuana, as well as the marijuana seized as a result,were both admissible.Commonwealth v.Herring,--Va.Cir.--,2006 Va. Cir.LEXIS 8(Charlottesville Feb. 13,2006). USER NOTE:For more generally applicable notes,see notes under the first section of this part,article,chapter,subtitle or title.