COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys Argued by teleconference
COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 1018-01-2 CHIEF JUDGE JOHANNA L. FITZPATRICK SEPTEMBER 25, 2001 JASON SINCLAIR, S/K/A JASON R. SINCLAIR
FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY James A. Luke, Judge
Susan M. Harris, Assistant Attorney General (Randolph A. Beales, Acting Attorney General, on brief), for appellant.
Murray J. Janus (David E. Haynes; Bremner, Janus, Cook & Marcus, on brief), for appellee.
Jason R. Sinclair (appellee) was charged with possession of
more than five pounds of marijuana with intent to distribute
pursuant to Code § 18.2-248.1 and transporting more than five
pounds of marijuana pursuant to Code § 18.2-248.01. The trial
court suppressed evidence of marijuana discovered in the cargo
area of a rental truck. The Commonwealth appeals to this Court
pursuant to Code § 19.2-398 contending, inter alia, that the
trial court erred in suppressing the evidence because appellee
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. had no standing to challenge the inventory search. 1 We agree and
reverse the order suppressing the evidence.
I. BACKGROUND
On review of the trial court's ruling granting a motion to
suppress, the appellate court views the evidence in the light
most favorable to the defendant, the prevailing party below, and
grants him all reasonable inferences fairly deducible from that
evidence. Russell v. Commonwealth, 33 Va. App. 604, 535 S.E.2d
699 (2000); Commonwealth v. Grimstead, 12 Va. App. 1066, 1067,
407 S.E.2d 47, 48 (1991).
So viewed, the evidence established that about 7:00 a.m. on
May 22, 2000, Virginia State Trooper Thomas Maxwell (Maxwell)
was dispatched to the scene of a single vehicle crash on
northbound Interstate 95 in Prince George County. Maxwell found
an undamaged rental truck immobile in the median about five to
ten feet from the edge of the interstate.
Maxwell asked appellee, the driver, for a copy of his
driver's license and the rental agreement, which he produced.
Appellee had a valid New York state commercial driver's license.
However, the rental agreement listed Maureen Malvo of New York
and Jason Wright of Florida as the only authorized drivers.
1 The Commonwealth included in its appeal the trial court's rulings that no exigent circumstances existed to justify the search and that the inventory search exceeded its scope. In light of our holding that appellee lacked standing to challenge the search, we do not address these issues.
- 2 - Maxwell inquired where the "other [named driver] was" and
appellee answered that he was alone. Maxwell asked appellee
what he had on board and how much it weighed. Appellee
responded that there was a box in the cargo area weighing about
300 pounds. Appellee claimed the contents of the crate were to
be delivered to his aunt in Florida who owned a restaurant, but
he was unable to tell Maxwell what was in the box or the name of
the restaurant.
Appellee consented to Maxwell's request to look inside the
rear of the vehicle. He unlocked and opened the door. A single
wooden crate was the only item in the back of the truck.
Maxwell again asked about the contents of the crate. Appellee
responded that he did not know what was inside and refused to
consent to opening the crate.
Trooper Smith (Smith) arrived on the scene. Maxwell
returned to his car and called for a narcotics K-9. Appellee
pulled the door down and put the padlock back on the truck.
Smith then observed appellee run across the median toward the
southbound lanes of the highway. Both officers chased the
fleeing driver but were unable to catch him.
At about 8:30 a.m. Officer Chris Pascoe (Pascoe) arrived at
the scene with a "narcotic detector" dog. The dog alerted on
the rear of the van for the presence of narcotics. Smith then
snapped off the padlock with a pair of bolt cutters and pried
open the crate with a crowbar and hammer. No search warrant was
- 3 - obtained for a search of the vehicle or the crate. The crate
contained boxes of marijuana. The police apprehended appellee
in Petersburg approximately four hours later.
At the suppression hearing, appellee argued that the rental
vehicle and the crate were searched in violation of the Fourth
Amendment and that none of the exceptions to the warrant
requirement applied. Appellee contended the search was invalid
as a search incident to arrest, the inventory search was
pretextual, and no exigent circumstances existed to justify the
"automobile" exception of Carroll v. United States, 267 U.S. 132
(1925).
The trial court granted the motion to suppress because
while the van was "abandoned" there were no exigent
circumstances and the inventory search should have been limited
to those items "that could be seen or reached without breaking
into, without tearing up any locks."
II. SEARCH AND SEIZURE
When analyzing a Fourth Amendment challenge, "[u]ltimate
questions of reasonable suspicion and probable cause . . .
involve questions of both law and fact and are reviewed de novo
on appeal." McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487
S.E.2d 259, 261 (1997) (en banc) (quoting Ornelas v. United
States, 517 U.S. 690, 691 (1996)). In performing this analysis,
the appellate court is "bound by the trial court's findings of
historical fact unless 'plainly wrong' or without evidence to
- 4 - support them and [it] give[s] due weight to the inferences drawn
from those facts by resident judges and local law enforcement
officers." Id. at 198, 487 S.E.2d at 261. The court will,
"analyze a trial judge's determination whether the Fourth
Amendment was implicated by applying de novo [its] own legal
analysis of whether based on those facts a seizure occurred."
Id. See Satchell v. Commonwealth, 20 Va. App. 641, 648, 460
S.E.2d 253, 256 (1995) (en banc); see also Watson v.
Commonwealth, 19 Va. App. 659, 663, 454 S.E.2d 358, 361 (1995).
This Court must follow the, "exclusionary rule established by
the United States Supreme Court in Weeks v. United States, 232
U.S. 383 (1914), and made applicable to the states by Mapp v.
Ohio, 367 U.S. 643 (1961), whereby evidence obtained in
violation of the Fourth Amendment proscription of unreasonable
searches and seizures may not be used against an accused." Hart
v. Commonwealth, 221 Va. 283, 287, 269 S.E.2d 806, 809 (1980).
"It is settled, however, that the right afforded to persons
by the Fourth Amendment – to be secure against unreasonable
searches and seizures of 'their' persons and property – does not
extend to abandoned premises or property." Hawley v.
Commonwealth, 206 Va.
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys Argued by teleconference
COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 1018-01-2 CHIEF JUDGE JOHANNA L. FITZPATRICK SEPTEMBER 25, 2001 JASON SINCLAIR, S/K/A JASON R. SINCLAIR
FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY James A. Luke, Judge
Susan M. Harris, Assistant Attorney General (Randolph A. Beales, Acting Attorney General, on brief), for appellant.
Murray J. Janus (David E. Haynes; Bremner, Janus, Cook & Marcus, on brief), for appellee.
Jason R. Sinclair (appellee) was charged with possession of
more than five pounds of marijuana with intent to distribute
pursuant to Code § 18.2-248.1 and transporting more than five
pounds of marijuana pursuant to Code § 18.2-248.01. The trial
court suppressed evidence of marijuana discovered in the cargo
area of a rental truck. The Commonwealth appeals to this Court
pursuant to Code § 19.2-398 contending, inter alia, that the
trial court erred in suppressing the evidence because appellee
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. had no standing to challenge the inventory search. 1 We agree and
reverse the order suppressing the evidence.
I. BACKGROUND
On review of the trial court's ruling granting a motion to
suppress, the appellate court views the evidence in the light
most favorable to the defendant, the prevailing party below, and
grants him all reasonable inferences fairly deducible from that
evidence. Russell v. Commonwealth, 33 Va. App. 604, 535 S.E.2d
699 (2000); Commonwealth v. Grimstead, 12 Va. App. 1066, 1067,
407 S.E.2d 47, 48 (1991).
So viewed, the evidence established that about 7:00 a.m. on
May 22, 2000, Virginia State Trooper Thomas Maxwell (Maxwell)
was dispatched to the scene of a single vehicle crash on
northbound Interstate 95 in Prince George County. Maxwell found
an undamaged rental truck immobile in the median about five to
ten feet from the edge of the interstate.
Maxwell asked appellee, the driver, for a copy of his
driver's license and the rental agreement, which he produced.
Appellee had a valid New York state commercial driver's license.
However, the rental agreement listed Maureen Malvo of New York
and Jason Wright of Florida as the only authorized drivers.
1 The Commonwealth included in its appeal the trial court's rulings that no exigent circumstances existed to justify the search and that the inventory search exceeded its scope. In light of our holding that appellee lacked standing to challenge the search, we do not address these issues.
- 2 - Maxwell inquired where the "other [named driver] was" and
appellee answered that he was alone. Maxwell asked appellee
what he had on board and how much it weighed. Appellee
responded that there was a box in the cargo area weighing about
300 pounds. Appellee claimed the contents of the crate were to
be delivered to his aunt in Florida who owned a restaurant, but
he was unable to tell Maxwell what was in the box or the name of
the restaurant.
Appellee consented to Maxwell's request to look inside the
rear of the vehicle. He unlocked and opened the door. A single
wooden crate was the only item in the back of the truck.
Maxwell again asked about the contents of the crate. Appellee
responded that he did not know what was inside and refused to
consent to opening the crate.
Trooper Smith (Smith) arrived on the scene. Maxwell
returned to his car and called for a narcotics K-9. Appellee
pulled the door down and put the padlock back on the truck.
Smith then observed appellee run across the median toward the
southbound lanes of the highway. Both officers chased the
fleeing driver but were unable to catch him.
At about 8:30 a.m. Officer Chris Pascoe (Pascoe) arrived at
the scene with a "narcotic detector" dog. The dog alerted on
the rear of the van for the presence of narcotics. Smith then
snapped off the padlock with a pair of bolt cutters and pried
open the crate with a crowbar and hammer. No search warrant was
- 3 - obtained for a search of the vehicle or the crate. The crate
contained boxes of marijuana. The police apprehended appellee
in Petersburg approximately four hours later.
At the suppression hearing, appellee argued that the rental
vehicle and the crate were searched in violation of the Fourth
Amendment and that none of the exceptions to the warrant
requirement applied. Appellee contended the search was invalid
as a search incident to arrest, the inventory search was
pretextual, and no exigent circumstances existed to justify the
"automobile" exception of Carroll v. United States, 267 U.S. 132
(1925).
The trial court granted the motion to suppress because
while the van was "abandoned" there were no exigent
circumstances and the inventory search should have been limited
to those items "that could be seen or reached without breaking
into, without tearing up any locks."
II. SEARCH AND SEIZURE
When analyzing a Fourth Amendment challenge, "[u]ltimate
questions of reasonable suspicion and probable cause . . .
involve questions of both law and fact and are reviewed de novo
on appeal." McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487
S.E.2d 259, 261 (1997) (en banc) (quoting Ornelas v. United
States, 517 U.S. 690, 691 (1996)). In performing this analysis,
the appellate court is "bound by the trial court's findings of
historical fact unless 'plainly wrong' or without evidence to
- 4 - support them and [it] give[s] due weight to the inferences drawn
from those facts by resident judges and local law enforcement
officers." Id. at 198, 487 S.E.2d at 261. The court will,
"analyze a trial judge's determination whether the Fourth
Amendment was implicated by applying de novo [its] own legal
analysis of whether based on those facts a seizure occurred."
Id. See Satchell v. Commonwealth, 20 Va. App. 641, 648, 460
S.E.2d 253, 256 (1995) (en banc); see also Watson v.
Commonwealth, 19 Va. App. 659, 663, 454 S.E.2d 358, 361 (1995).
This Court must follow the, "exclusionary rule established by
the United States Supreme Court in Weeks v. United States, 232
U.S. 383 (1914), and made applicable to the states by Mapp v.
Ohio, 367 U.S. 643 (1961), whereby evidence obtained in
violation of the Fourth Amendment proscription of unreasonable
searches and seizures may not be used against an accused." Hart
v. Commonwealth, 221 Va. 283, 287, 269 S.E.2d 806, 809 (1980).
"It is settled, however, that the right afforded to persons
by the Fourth Amendment – to be secure against unreasonable
searches and seizures of 'their' persons and property – does not
extend to abandoned premises or property." Hawley v.
Commonwealth, 206 Va. 479, 482, 144 S.E.2d 314, 316 (1965). To
determine whether appellee's conduct amounted to abandonment, it
is necessary to examine his interest in the rental truck. The
record does not disclose whether appellee had the authorized
drivers' permission to possess or use the van. It only shows
- 5 - that appellee was driving the rental truck on May 22, 2000 when
it became stuck in the median of the highway. However,
assuming, without deciding, that appellee was lawfully in
possession of the truck, we have "at most the question of
abandonment of the mere right of possession, and not the
abandonment of ownership. Admittedly, intention is a prime
factor in determining whether there has been an abandonment.
And courts must determine intent . . . from the objective facts
at hand." Id. at 483, 144 S.E.2d at 317. "Abandonment may be
demonstrated, for example, when a suspect leaves an object
unattended in a public place." United States v. Most, 876 F.2d
191, 196 (D.C. Cir. 1989).
In the instant case, credible evidence supports the trial
court's determination that appellee abandoned the vehicle.
Appellee fled the scene of the accident and was apprehended more
than three hours later in the City of Petersburg. Appellee left
the van immobile in the median of the highway and gave no
indication that he intended to return. The evidence establishes
appellee's intention to abandon the rental van and surrender any
possessory interest he may have had in it or in its contents.
Having found that appellee has no interest in the van or
its contents, he has no standing to challenge the subsequent
search. See United States v. Wellons, 32 F.3d 117 (4th Cir.
1994) (a warrantless search of a rental vehicle in the
possession of an unauthorized driver was not a violation of the
- 6 - Fourth Amendment as one who has no legitimate claim to the car
he was driving cannot reasonably assert an expectation of
privacy in the contents found in the car); United States v.
Thomas, 864 F.2d 843, 845 (D.C. Cir. 1989) (a warrantless
seizure of abandoned property is not a violation of the Fourth
Amendment as one who voluntarily abandons property forfeits any
expectation of privacy he or she may have in it); United States
v. Edwards, 441 F.2d 749 (5th Cir. 1971) (defendant's right to
Fourth Amendment protection ended when he abandoned his car on a
public highway and fled on foot as he no longer had reasonable
expectation of privacy with respect to the automobile).
Because appellee abandoned the rental truck, its search and
the seizure of the marijuana inside violated no protected Fourth
Amendment right.
Reversed and remanded.
- 7 -