Commonwealth of Virginia v. Theodore Keith Simpson, Jr.

• Court: Court of Appeals of Virginia
• Decided: January 17, 2017
• Docket: 1348164
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Huff, Judge Humphreys and Senior Judge Annunziata UNPUBLISHED

Argued by teleconference

COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION* BY v. Record No. 1348-16-4 JUDGE ROBERT J. HUMPHREYS JANUARY 17, 2017 THEODORE KEITH SIMPSON, JR.

FROM THE CIRCUIT COURT OF STAFFORD COUNTY Victoria A.B. Willis, Judge

Aaron J. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellant.

Christopher M. Reyes (Spencer, Meyer, Koch & Cornick, PLC, on brief), for appellee.

In this interlocutory appeal by the Commonwealth of Virginia pursuant to Code

§ 19.2-398(A)(2), the Commonwealth challenges the ruling of the Circuit Court of Stafford

County (the “circuit court”) granting a motion to suppress the evidence in favor of Theodore

Keith Simpson, Jr. (“Simpson”).

I. BACKGROUND

In reviewing a circuit court’s decision to grant a motion to suppress, this Court “view[s]

the evidence in a light most favorable to [Simpson], the prevailing party below, and we grant all

reasonable inferences fairly deducible from that evidence.” Commonwealth v. Grimstead, 12

Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). “On appeal, we consider the entire record in

determining whether the trial court properly [ruled on a] motion to suppress.” Patterson v.

Commonwealth, 17 Va. App. 644, 648, 440 S.E.2d 412, 415 (1994).

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. So viewed, the evidence established that on November 21, 2015, First Sergeant Robert

Grella (“Grella”) and two other officers were surveilling a motel known for illicit drug activity.

After observing a car with two occupants enter the motel parking lot and stay for around five

minutes before departing, Grella suspected involvement in a drug transaction and followed the

car. Around 10:15 p.m., Grella conducted a traffic stop of the car based on his observation of an

object dangling from the rearview mirror and a cracked windshield.1 The driver stepped out of

the vehicle at Grella’s request and spoke with him at the rear of the car.

Meanwhile, Deputy Mervil (“Mervil”) arrived on the scene and began speaking with

Simpson, who was seated in the front passenger seat. Mervil relayed Simpson’s name to

dispatch, which then advised that Simpson was wanted in Spotsylvania County.2 Grella then

asked Simpson to step out of the vehicle and detained him at the rear of the car, leaving the

passenger door open. By this time, Sergeant Volpe (“Volpe”) had also arrived on scene. While

standing outside the open passenger door, Volpe advised Grella that he observed “a possible

weapon or gun in the vehicle.” Grella asked Volpe to point it out because it was “quite difficult”

for him to see it. Volpe shined his flashlight on the gun located in a recess in the center console

1 The record does not reflect that any investigation of whether the “dangling object” obstructed the driver’s view, in violation of Code § 46.2-1054, or whether the cracked windshield violated any provision of the Code of Virginia, took place. Because Simpson did not raise any issue in the circuit court as to whether the traffic stop was pretextual or of the applicability of the United States Supreme Court’s decision in Rodriguez v. United States, 135 S. Ct. 1609 (2015), or this Court’s decision in Matthews v. Commonwealth, 65 Va. App. 334, 344, 778 S.E.2d 122, 127 (2015), we do not address the constitutionality of the traffic stop. 2 Although the record reflects that the reason Simpson was “wanted” was not conveyed to Mervil at this time, it was determined after his arrest that Simpson was wanted for failure to appear in court. -2- underneath the front dash and behind two cup holders, one of which contained a large fast food

cup.3

Based on the location of the gun in the car, Grella determined that he had probable cause

to believe Simpson was carrying a concealed weapon. After removing the gun from the car,

Grella learned from dispatch that Simpson was a convicted felon. Simpson was read his rights

under Miranda v. Arizona, 384 U.S. 436 (1966), and he then admitted that he was a convicted

felon and that the gun Grella seized belonged to him.

The grand jury indicted Simpson for possession of a firearm while being a convicted

felon and possession of a concealed weapon. Before trial, Simpson moved to suppress all

evidence relating to the indictments on the grounds that such evidence was obtained in violation

of Simpson’s federal and state constitutional protections against unreasonable searches and

seizures. At a hearing on that motion, the Commonwealth primarily asserted that Simpson

lacked a reasonable expectation of privacy in the vehicle and thus lacked standing to object on

constitutional grounds to either the search of the vehicle or the seizure of the gun; the

Commonwealth further argued that in any event, the gun was found in “plain view” and therefore

no Fourth Amendment violation occurred.

The circuit court found that Simpson had standing to challenge Grella’s seizure of the

gun, that the plain view doctrine did not justify that seizure, and that the seizure violated

Simpson’s constitutional rights. Accordingly, the circuit court granted Simpson’s motion to

suppress. This interlocutory appeal by the Commonwealth followed.

3 Pictures of the area containing the gun were admitted into evidence, but because the gun had been removed, unloaded, and replaced before the photographs were taken, the circuit court deemed them “demonstrative at best” and expressly gave them no weight. -3- II. ANALYSIS

This Court will not reverse the circuit court’s ruling on a motion to suppress unless it is

plainly wrong. Grimstead, 12 Va. App. at 1067, 407 S.E.2d at 48. In reviewing the circuit

court’s decision, this Court is “bound by the trial court’s findings of historical fact unless ‘plainly

wrong’ or without evidence to support them and we give due weight to the inferences drawn

from those facts by resident judges and local law enforcement officers.” McGee v.

Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc). In contrast, the

circuit court’s application of defined legal standards—that is, “whether the rule of law as applied

to the established facts is or is not violated”—is subject to de novo review. Ornelas v. United

States, 517 U.S. 690, 699 (1996) (quoting Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19

(1982)).

The essential issue raised in this appeal is whether Grella’s actions violated Simpson’s

Fourth Amendment rights. Before we can address the merits of that issue, this Court must

determine de novo whether Simpson had standing to challenge either or both the search of the car

and the seizure of the gun.

A. Simpson’s Standing to Assert a Constitutional Violation

The Fourth Amendment of the United States Constitution, as incorporated in and applied

to the states through the Fourteenth Amendment, provides, in part, that “[t]he right of the people

to be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated.”4 Only someone whose individual rights have been violated by

government action may raise a Fourth Amendment challenge because “Fourth Amendment rights

4 Article I, Section 10 of the Constitution of Virginia provides similar protections. -4- are personal rights which . . . may not be vicariously asserted.” Alderman v. United States, 394

U.S. 165, 174 (1969). Originally a separate inquiry, the United States Supreme Court has held

that this Fourth Amendment standing requirement is “subsumed under substantive Fourth

Amendment doctrine.” Rakas v. Illinois, 439 U.S. 128, 134 (1978). Accordingly, “the question

is whether the challenged search and seizure violated the Fourth Amendment rights of a criminal

defendant . . . . That inquiry in turn requires a determination of whether the disputed search and

seizure has infringed an interest of the defendant which the Fourth Amendment was designed to

protect.” Id. at 140.

The Fourth Amendment “protects two types of expectations, one involving ‘searches,’ the

other ‘seizures.’ A ‘search’ occurs when an expectation of privacy that society is prepared to

consider reasonable is infringed. A ‘seizure’ of property occurs when there is some meaningful

interference with an individual’s possessory interests in that property.” United States v.

Jacobsen, 466 U.S. 109, 112 (1984). While in most cases, a party aggrieved by a seizure will

also be aggrieved by a search, such is not necessarily the case and in this instance, it is critical to

parse the search and seizure to identify the exact Fourth Amendment violation, if any, suffered

by Simpson.

Turning first to whether Simpson’s Fourth Amendment rights were violated by Grella’s

search of the car, we conclude that they were not because, under the totality of the

circumstances, Simpson did not have a reasonable expectation of privacy or property interest in

the areas of the car searched.

Simpson was merely a passenger in a car that he did not own or have a right to possess—

“the fact that [Simpson was] ‘legitimately on [the] premises’ in the sense that [he was] in the car

with . . . permission . . . is not determinative of whether [he] had a legitimate expectation of

privacy in the particular areas of the automobile searched.” Rakas, 439 U.S. at 148 (quoting -5- Jones v. United States, 362 U.S. 257, 267 (1960)). Simpson was the passenger of a nonowner

driver, and the record is silent as to whether the driver did or did not have permission to use the

car.5 Even applying the factual inference drawn by the circuit court that the driver had

permission to use the car and invited Simpson to be a passenger, Simpson nonetheless had no

right to exclude others from the car or any part thereof. No facts before the circuit court

indicated that Simpson had any expectation that the car and its contents would be free from

governmental invasion or that he exercised control over any portion of the car. Simpson was

thus nothing more than a temporary passenger in another’s car. Cf. Barnes v. Commonwealth,

234 Va. 130, 135, 360 S.E.2d 196, 200 (1987) (holding that a defendant had no standing to

challenge the search of an apartment where defendant had permission to be present in the

apartment, but did not have a key, keep property there, or have any right to exclude others).

However, since the United States Supreme Court’s 2012 decision in United States v.

Jones, 565 U.S. 400, 409 (2012) (“[T]he Katz reasonable-expectation-of-privacy test has been

added to, not substituted for, the common-law trespassory test.”), standing to assert the

protections of the Fourth Amendment exist if one has either a reasonable expectation of privacy

or a common-law property interest in the place searched or the things seized. Simpson asserted a

property interest in the gun, and the Commonwealth implicitly concedes as much by the nature

of the charges it brought against him. We therefore hold that the circuit court was correct in

determining that Simpson had constitutional standing to object to the seizure of the gun, though

not the search of the vehicle.

5 The record indicates only that the car was registered to the driver’s grandfather. -6- Concluding as we do that Simpson has standing to object to the warrantless seizure of the

gun, we now turn to whether any exception to the Fourth Amendment warrant requirement

justifies the seizure such that it did not violate Simpson’s Fourth Amendment rights.

B. The Plain View Issue has been Waived

Preliminarily, it is a basic principle of Fourth Amendment jurisprudence that any

warrantless search or seizure where the Fourth Amendment is applicable is presumptively

unconstitutional, and the Commonwealth bears the burden of rebutting that presumption by

demonstrating that one of the recognized exceptions to the warrant requirement applies. See e.g.

Katz v. United States, 389 U.S. 347, 357 (1967); Payton v. New York, 445 U.S. 573, 583 (1980);

Groh v. Ramirez, 540 U.S. 551, 572 (2004); see also Walls v. Commonwealth, 2 Va. App. 639,

645, 347 S.E.2d 175, 178 (1986).

Next, we note that the Commonwealth has abandoned one of the primary legal positions

upon which it relied in the circuit court: that the seizure of the gun was justified because it was

in “plain view.” While it is certainly true that the Fourth Amendment permits a warrantless

seizure of items observed in “plain view”—provided that there is probable cause at the time of

the seizure to believe that such items are either contraband, evidence of a crime, or fruits of a

crime and such is immediately apparent—on appeal, none of the Commonwealth’s assignments

of error to this Court challenge the circuit court’s determination that the weapon seized was not

in plain view. Rather, in addition to the standing issue already discussed, the Commonwealth

only argues on appeal that the seizure was constitutional because probable cause existed to seize

the weapon coupled with exigent circumstances that the gun was found in a motor vehicle or,

alternatively, that even if a Fourth Amendment violation occurred, the exclusionary rule should

not apply to suppress the gun because the weapon would have been inevitably discovered

through lawful means. Thus, we will not decide an issue that is not before us and the law of the -7- case is that the gun was not seized in “plain view.” See Rule 5A:12(c); see also Covel v. Town

of Vienna, 280 Va. 151, 163, 694 S.E.2d 609, 616 (2010) (“[A] legal decision . . . unchallenged

in a subsequent appeal when the opportunity to do so existed[] becomes the law of the case . . .

and the parties are deemed to have waived the right to challenge that decision at a later time.”).

C. The Existence of Probable Cause to Seize the Gun

The warrantless seizure of the gun required that the Commonwealth establish that

probable cause, not developed through unlawful means, existed at the time of the seizure to

believe a crime had been committed and that the gun was either evidence or fruits of that crime,

or contraband. Therefore, although Simpson has no standing to object to the search of the

vehicle in which he was a passenger, we must nevertheless determine whether, on this record, the

Commonwealth established that the officers involved in the seizure of the gun had both probable

cause to do so and had not already violated the Fourth Amendment in the acquisition of such

probable cause.

[O]fficers may seize evidence in plain view, provided that they have not violated the Fourth Amendment in arriving at the spot from which the observation of the evidence is made. . . . “[I]t is . . . an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed.”

Kentucky v. King, 563 U.S. 452, 463 (2011) (quoting Horton v. California, 496 U.S. 128, 136

(1990)).

First, although we are mindful that Simpson has no standing to suppress the search of the

vehicle for the reasons stated above, it is significant to our analysis that the Commonwealth

made no attempt in the circuit court to justify the search of the vehicle based upon probable

cause to do so, and therefore the warrantless search of the vehicle was presumptively and, for our

purposes, conclusively unconstitutional. However, as its owner, Simpson does have standing to -8- object to the seizure of the gun. Given the unrebutted presumption that the search was

unconstitutional, the only way the seizure of the weapon can be constitutionally supported is if

the weapon was in fact in plain view by the officers solely as a result of the traffic stop and that it

was readily apparent at the time of its seizure that, as the Commonwealth argues, the gun

represented evidence of the crime of carrying a concealed weapon.

The Commonwealth’s argument on this point fails for several reasons. First, the facts,

viewed in the light most favorable to Simpson, clearly do not establish that the gun was in plain

view solely by virtue of the traffic stop, and this factual conclusion is not disputed on appeal.

The circuit court, in its August 5, 2016 letter opinion, found as a matter of fact that the gun had

been moved prior to the photos being taken. Thus, the photos were not reliable or relied upon by

the circuit court with respect to the location of the gun and its concealed or unconcealed nature

during the traffic stop. Additionally, the circuit court made well-documented factual findings

that “[t]here was no testimony as to the timeline of the stop. In fact, there was no testimony from

either Deputy Mervil or Sergeant Volpe to indicate the . . . exact location and accessibility of the

gun . . . it appears that the gun was not in plain view.” Moreover, to the extent this is also a legal

conclusion, it is the law of the case for the reasons stated by our Supreme Court in Covel. 280

Va. at 163, 694 S.E.2d at 616.

In addition, at the time the search was conducted and the gun seized, Grella and his law

enforcement colleagues only thought that the vehicle and its occupants were suspicious by virtue

of its brief stop at a place where drug transactions were known to take place. Indeed, the record

reflects that the only “criminal” activity for which even reasonable suspicion existed was

whether the driver’s view of the road was obstructed by an object dangling from the rearview

mirror—an offense for which the record reflects no investigation to confirm or dispel suspicions

-9- in that regard. Thus, probable cause for the seizure of the gun does not flow from any of the

surrounding circumstances of the traffic stop.

Nevertheless, the Commonwealth and the dissent assert that independent probable cause

to seize the weapon flows entirely from the fact that the weapon was concealed and located in

proximity to where Simpson was seated in the vehicle, and thus equated to probable cause of a

violation of Code § 18.2-308 which prohibits carrying a concealed weapon about one’s person.

However, the mere existence of a weapon, without more, does not automatically equate to

probable cause to seize it pursuant to the Fourth Amendment. The record in this case, viewed in

the light most favorable to Simpson, does not establish that the gun was in any way linked to

Simpson at the time it was seized except through its mere proximity to where he was previously

seated in the vehicle. Moreover, given the presumptively unconstitutional nature of the search,

the Commonwealth’s constitutional argument is also dependent upon the weapon being in “plain

view” at the time of its seizure and yet concealed for the purposes of probable cause to actually

seize it. However, as the Commonwealth frequently points out when it is the appellee, a party

may not approbate and reprobate by taking inconsistent legal positions in the course of litigation.

By pleading and arguing that the weapon was simultaneously in plain view for the purposes of

satisfying the Fourth Amendment at the suppression hearing yet concealed from observation for

the purpose of convicting Simpson of a violation of Code § 18.2-308, the Commonwealth is

clearly approbating and reprobating in this case and since “what is sauce for the goose . . . ,”6 we

will not permit the Commonwealth to do so. See Dufresne v. Commonwealth, 66 Va. App. 644,

791 S.E.2d 335 (2016) (en banc). Furthermore, as already noted, the Commonwealth has

6 We refer to the original admonition attributed to Marcus Terentius Varro (116-27 B.C.) that “What is sauce for the goose is sauce for the gander” and not its better known abridged repetition by Mr. Spock to Lt. Saavik in the only decent Star Trek movie, Star Trek II: The Wrath of Khan (Paramount Pictures, 1982). - 10 - abandoned and waived any argument that the weapon was in plain view. The dissent relies upon

the Seventh Circuit’s decision in United States v. Lisk, 522 F.2d 228 (7th Cir. 1975), to reach the

conclusion that “as far as [Simpson] is concerned the case is the same as though the firearm had

been found in plain view in a public place and then seized.” However, while we agree with the

dissent that Lisk stands for the principle that a firearm found in plain view in a public place may

then be properly seized provided probable cause exists for the seizure, Lisk is inapposite to this

case. In Lisk, the evidence was stipulated that the firearm was in plain view during the search.

Here, that is precisely not the case.

This Court laid out the requirements of the plain view doctrine in Cauls v.

Commonwealth, 55 Va. App. 90, 99, 683 S.E.2d 847, 851 (2009):

[T]he plain view doctrine is not really a separate “exception” to the constitutional requirement that the seizure of an item must be supported either by a properly issued and executed warrant or some other properly applied exception to the warrant requirement, such as exigent circumstances. In fact, “plain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle . . . that no amount of probable cause can justify a warrantless search or seizure absent ‘exigent circumstances.’” Coolidge [v. New Hampshire], 403 U.S. [443,] 468 [(1971)]. As other jurists have noted, “[t]he hardest conceptual problem attending the plain view doctrine is to grasp that it is not a universal statement of the right of a policeman to seize after seeing something in open view; it is rather a limited statement of the right in one of several instances - following a valid intrusion.” Judge Charles E. Moylan, The Plain View Doctrine: Unexpected Child of the Great “Search Incident” Geography Battle, 26 Mercer L. Rev. 1047, 1096 (1975).

To that end, the United States Supreme Court has identified three requirements for application of the plain view doctrine, which are 1) that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed, 2) that the incriminating character of the evidence must be immediately apparent, and 3) that the officer have a lawful right of access to the object itself. Vaughn v. Commonwealth, 53 Va. App. 643, 648, 674 S.E.2d 558, 560 (2009) (citing Horton v. California, 496 U.S. 128 (1990)). - 11 - In addition to a failure by the Commonwealth to establish the second and third requirements of

the plain view doctrine of Horton restated above from our decision in Cauls, “[p]robable cause

is required at the outset before an officer may seize an item in plain view.” Grimstead, 12

Va. App. at 1068, 407 S.E.2d at 48 (emphasis added).

Probable cause requires only “a probability or substantial chance of criminal activity, not

an actual showing of such activity.” Ford v. City of Newport News, 23 Va. App. 137, 143-44,

474 S.E.2d 848, 851 (1996). Probable cause to arrest exists when the facts and circumstances

known to the arresting officer are sufficient to warrant a man of reasonable caution to believe

that an offense has been or is being committed. McGuire v. Commonwealth, 31 Va. App. 584,

592, 525 S.E.2d 43, 47 (2000). Probable cause to search exists when there is a fair probability

that contraband or evidence of a crime will be found in a particular place based on the totality of

the circumstances. Byrd v. Commonwealth, 57 Va. App. 589, 595, 704 S.E.2d 597, 599 (2011)

(en banc). By extension, probable cause to seize requires fair probability that the item seized is

contraband or evidence of a crime or its fruits. None of those exist in the record here. It is

axiomatic that a bare assertion of “officer safety” without concomitant probable cause that a

crime has been committed and that the weapon seized is contraband, evidence of a crime or fruits

of a crime—none of which obtain in this case—is insufficient to support a constitutional seizure.

D. The Applicability of the Inevitable Discovery Doctrine

Finally, the Commonwealth argues that, even if the seizure of the gun was

unconstitutional, the inevitable discovery doctrine, first annunciated in Nix v. Williams, 467 U.S.

431 (1984), prevents the operation of the exclusionary rule to exclude the evidence in this case.

As this Court held in Baker v. Commonwealth, 57 Va. App. 181, 194, 700 S.E.2d 160,

166 (2010), “Ordinarily, evidence obtained as the result of an unlawful search is subject to

suppression under the exclusionary rule.” “However, not all illegally obtained evidence is - 12 - subject to suppression.” Wong Sun v. United States, 371 U.S. 471, 487-88 (1963). One of the

exceptions to the exclusionary rule is the doctrine of inevitable discovery, which provides that

evidence obtained by unlawful means is nonetheless admissible “if the prosecution can establish

by a preponderance of the evidence that the information ultimately or inevitably would have

been discovered by lawful means.” Nix, 467 U.S. at 444.

The Commonwealth’s argument on this point is essentially that Simpson’s status as a

convicted felon and the existence of the gun would most likely have been discovered through a

criminal history check and a search of the vehicle. However, to establish these points, the

Commonwealth asks us first to speculate outside of this record that it is likely that a criminal

history record check confirming Simpson’s status as a convicted felon would have been done at

some point following Simpson’s arrest for the outstanding warrant for failure to appear.

Granting the Commonwealth’s point that prudence or due diligence would suggest such a course

by competent law enforcement officers in any case where an arrest is made, that is not the same

as affirmative evidence in the record indicating that such a record check would necessarily, much

less inevitably, have been done. Moreover, the Commonwealth offers nothing but sheer

speculation—also outside of anything in this record—that the gun would inevitably have been

discovered through lawful means such as a search warrant based upon independent probable

cause, or an inventory search of the vehicle. We therefore reject the Commonwealth’s

essentially bare assertion that the inevitable discovery doctrine is applicable to this case.

III. CONCLUSION

Thus, because the weapon was not discovered in plain view and no evidence was

presented that could lead a person of reasonable caution to believe that Simpson was a convicted

felon at the time of the weapon’s seizure or that the weapon itself constituted evidence of a

crime, and because Simpson was not arrested until after the gun was seized and manipulated by - 13 - Grella at a time when no independent probable cause existed for doing so, we conclude that the

judgment of the circuit court granting Simpson’s motion to suppress was not error.

Affirmed.

- 14 - Huff, C.J., dissenting.

I respectfully dissent because the handgun, at the time discovered by the police, appeared

to be a concealed weapon and Simpson lacked standing to object to the search which led to

discovery of the handgun.

The Commonwealth’s sole assignment of error in this case states that “[t]he trial court

erred in granting [Simpson’s] Motion to Suppress.” One of the Commonwealth’s arguments in

support of that assignment of error is that “[t]he police were justified in seizing the firearm from

the vehicle because they had probable cause that Simpson possessed a concealed weapon in

violation of . . . Code § 18.2-308.” This case turns on the probable cause analysis, applied in

light of the legal conclusion that Simpson only has standing to challenge the seizure of the

firearm.

The circumstances presented here are somewhat unusual in that Simpson had standing to

challenge the seizure, but not the search of the location in which the object was found. Although

no Virginia case appears to be directly analogous to the factual scenario presented here, the

Seventh Circuit’s decision in United States v. Lisk, 522 F.2d 228 (7th Cir. 1975), by Judge (later

Justice) Stevens is instructive. In that case, Lisk placed an explosive device in the trunk of

Hunt’s car and asked Hunt to keep it until he asked for its return. Id. at 229. Five days later,

police seized it during an unlawful search of the trunk. Id. The parties stipulated that Lisk had

no interest in Hunt’s car, but “retained a proprietary interest in the bomb.” Id. In holding that

Lisk had “standing to object to the seizure, but no standing to object to the search,” as the

majority holds in the present case, the court reasoned as follows:

Hunt’s car was searched and defendant’s property was seized. The invasion of Hunt’s privacy was a violation of Hunt’s Fourth Amendment rights, but this violation is clearly not available to the defendant as a basis for suppressing evidence acquired thereby. Defendant must rely on the seizure of the firearm as a violation of - 15 - his own Fourth Amendment rights. But if we assume that his rights were untouched by the search of Hunt’s car, as far as defendant is concerned the case is the same as though the firearm had been found in plain view in a public place and then seized.

Id. at 230 (emphasis added). The court clarified its plain view comment in a footnote, observing

that “with respect to defendant’s rights, the case is the same as though Hunt had given his

consent to a search of the trunk of his car.” Id. at 230 n.5.

Thus, although couched in plain view language, the analysis before this Court is distinct

from the traditional plain view inquiry in that this Court need only determine whether the police

“had probable cause to believe that the evidence seized was a seizable item, i.e., contraband, the

fruit or tools of a crime, or other evidence of crime.”7 Commonwealth v. Grimstead, 12

Va. App. 1066, 1068, 407 S.E.2d 47, 48 (1991) (quoting Delong v. Commonwealth, 234 Va.

357, 365, 362 S.E.2d 669, 673 (1987)). This probable cause inquiry depends on whether the

handgun’s seizable nature was immediately apparent, which turns on the definition in Code

§ 18.2-308, Virginia’s concealed weapons statute. That statute provides in part that: “If any

person carries about his person, hidden from common observation, (i) any pistol . . . he is guilty

of a Class 1 misdemeanor,” and defines “hidden from common observation” as being

“observable but . . . of such deceptive appearance as to disguise the weapon’s true nature.” Code

§ 18.2-308(A) (emphasis added).

This Court’s legal conclusion with respect to probable cause should be substantially

influenced by the trial court’s binding factual conclusion that “it appears that the gun was not in

plain view.” See McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997)

7 Because “as far as [Simpson] is concerned the case is the same as though the firearm had been found in plain view in a public place,” Lisk, 522 F.2d at 230, the other elements traditionally associated with a plain view analysis are not at issue. Thus, this case is just as if Grella had observed the handgun from a lawful location and had a lawful right of access to it. See Horton v. California, 496 U.S. 128, 136-37 (1990). - 16 - (en banc) (“[W]e are bound by the trial court’s findings of historical fact unless ‘plainly wrong’

or without evidence to support them.”). Despite the trial court’s use of the words “plain view” in

stating its conclusion, the logic of its opinion reveals that the trial court used the terms “not in

plain view” and “concealed” interchangeably. In reaching its conclusion, the opinion performs

an extensive analysis of Virginia case law interpreting Code § 18.2-308, further indicating that

the trial court’s “plain view” holding actually related to the factual question of whether the gun

was concealed.

Crucially, whether the plain view doctrine applies and whether probable cause exists that

an item is seizable are two distinct legal inquiries. An item can be both in plain view for

purposes of Fourth Amendment doctrine and concealed for purposes of finding probable cause

under Virginia’s concealed weapons statute. Such is the scenario here. In this case, the handgun

was in “plain view” insofar as Simpson’s limited standing reduced the inquiry to whether the

police had probable cause to believe the handgun was concealed within the statutory meaning.

Because this Court must treat the handgun as though it “had been found in plain view in a public

place,” Lisk, 522 F.2d at 230, the evidence—even viewed in the light most favorable to

Simpson—established that the handgun was “hidden from all except those with an unusual or

exceptional opportunity” to observe it and necessitates the conclusion that the police had

probable cause to believe that the handgun was concealed within the meaning of Code

§ 18.2-308. Main v. Commonwealth, 20 Va. App. 370, 372-73, 457 S.E.2d 400, 402 (1995) (en

banc). Accordingly, the police properly seized the handgun and the trial court erred in granting

Simpson’s motion to suppress. For these reasons, I respectfully dissent.

- 17 -