## Facts

- Police stopped a vehicle in Norfolk, Virginia for a defective license-plate light.
- Kentora Delvontae Atkins was seated in the right rear passenger seat and repeatedly turned and bent down, causing an officer to lose sight of his head.
- Atkins first claimed he had no identification, then produced a driver’s license; he later became visibly nervous and shook while attempting to light a cigarette.
- A warrants check showed the front-seat passenger had outstanding warrants; officers removed her from the vehicle.
- The driver refused consent to search; officers decided to use a drug-detection dog and asked occupants to exit.
- The driver suddenly grabbed the keys, started the car, struggled, and fled on foot.
- As officers attempted to restrain Atkins to prevent flight, a pill bottle containing multiple heroin capsules fell from his hand or pocket; he was arrested.
- Officers searched the vehicle and found a firearm under the driver’s seat and another firearm in the rear-seat area under or near the right rear passenger seat where Atkins had been sitting.
- Atkins was convicted in a bench trial of heroin possession, possession of a firearm while in possession of heroin, and possession of a firearm by a convicted felon; the trial court denied suppression and other motions.

## Issues

1. Whether a non-owner passenger had standing under the Fourth Amendment to challenge the search of the vehicle that produced the firearm evidence.
2. Whether the heroin and firearm evidence should have been suppressed as the product of an unlawful stop, detention, or search.
3. Whether the evidence was sufficient to prove Atkins knowingly possessed a firearm while simultaneously possessing heroin under Va. Code § 18.2-308.4(B).
4. Whether the indictment for possession of a firearm while in possession of heroin contained a fatal variance from the proof at trial.
5. Whether the evidence was sufficient to prove possession of a firearm by a convicted felon under Va. Code § 18.2-308.2.

## Decision

- The Court of Appeals of Virginia affirmed all convictions.
- The court held Atkins lacked standing to challenge the vehicle search because he had no possessory or proprietary interest in the vehicle or the areas searched.
- The court held the traffic stop was supported by probable cause and the continued detention was reasonable under the circumstances; the heroin was admissible because it was exposed when the pill bottle fell during lawful restraint.
- The court found the evidence sufficient to prove constructive possession of the rear-seat firearm and simultaneous possession of heroin.
- The court rejected the claimed fatal variance because the indictment adequately informed Atkins of the charge and the proof conformed to it.
- The court found the evidence sufficient to prove felon-in-possession based on Atkins’s felony status and constructive possession of the firearm.

## Legal Principles

- A passenger who claims no property or possessory interest in a vehicle and no privacy interest in the area searched generally lacks Fourth Amendment standing to contest the vehicle search.
- A traffic stop is lawful when supported by probable cause of a traffic violation, and officers may take reasonable steps to control occupants and complete related tasks tied to the stop.
- Evidence is not suppressed as the fruit of an unlawful search when it is revealed without an improper search during a lawful detention (including when contraband becomes visible after it falls from the defendant’s person while officers lawfully restrain movement).
- Constructive possession may be proven by circumstantial evidence showing awareness of the item’s presence and character and that it was subject to the defendant’s dominion and control; proximity and conduct may support the inference.
- A variance between indictment and proof is fatal only if it misleads the accused in preparing a defense or risks a later prosecution for the same offense.

## Conclusion

The court affirmed Atkins’s drug and firearm convictions, holding he could not contest the vehicle search as a mere passenger, the stop and detention were lawful and did not taint the heroin discovery, the indictment matched the proof, and the circumstantial evidence supported constructive possession of the rear-seat firearm and the firearm-related offenses.


Atkins v. Commonwealth, 57 Va. App. 2, 698 S.E.2d 249 (Ct. App. 2010)