COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Bray Argued at Richmond, Virginia
GARY LAMONT THOMPSON MEMORANDUM OPINION * BY v. Record No. 2395-98-2 JUDGE RICHARD S. BRAY FEBRUARY 1, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Ernest P. Gates, Judge Designate
Gregory W. Franklin, Assistant Public Defender (David J. Johnson, Public Defender, on brief), for appellant.
Michael T. Judge, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Gary Lamont Thompson (defendant) was convicted in a bench
trial for possession of cocaine with intent to distribute. On
appeal, he contends that the trial court erroneously denied his
motion to suppress evidence seized in violation of the Fourth
Amendment during an inventory search of an automobile. We agree
and reverse the conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. "In reviewing a trial court's denial of a motion to suppress,
'the burden is upon the defendant to show that the ruling, when
the evidence is considered most favorably to the Commonwealth,
constituted reversible error.'" McGee v. Commonwealth, 25 Va.
App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Fore
v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert.
denied, 449 U.S. 1017 (1980)). "Ultimate questions of reasonable
suspicion and probable cause to make a warrantless search" involve
issues of both law and fact, reviewable de novo on appeal.
Ornelas v. United States, 517 U.S. 690, 699 (1996). However,
"[i]n performing such analysis, we are 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, 25 Va. App. at 198, 487 S.E.2d at
261 (citation omitted).
On April 29, 1997, Richmond Detective William Burnette and
Police Officer Charles Battle observed defendant operating a
vehicle bearing an expired city decal. Battle "turned around and
got in behind" defendant but did not activate pursuit lights or
siren. Defendant immediately "took off at a high rate of speed,"
traveled one block, "pulled over . . . real quick" and properly
parked along the street. Defendant then locked the car, "jumped
from the vehicle, ran into the [adjacent] house," and "closed the
door." As defendant progressed toward the house, the officers
- 2 - "told him to stop that he had an expired decal . . . and [they]
wanted to talk to him about it."
Pursuing an investigation, the officers knocked at the door
of the residence, without response, "called the tags [of the
vehicle] in," and learned that it was registered to Barbara Scott 1
and had not been reported stolen. A woman then exited the house,
approached, and engaged Burnette and Battle in conversation.
Police determined that the car was not the property of the woman
but sought her assistance "to get the gentleman and come back
outside." She then re-entered the home, returning shortly to
report that defendant "refused to come out." Subsequent efforts
to coax defendant from the residence were unsuccessful.
Uncertain "whether [defendant's possession of the car] was
unauthorized use or not," the officers decided to impound it "for
investigation until [they] could contact the owner" and summoned a
tow truck. Upon arrival of the truck, the driver gained access to
the locked car using a "Slim Jim," and the officers undertook an
inventory of its contents pursuant to departmental procedure.
Inside a jacket found resting on the front seat, the officers
discovered "about seventy some hits of crack cocaine," the
offending contraband.
1 Subsequently, Barbara Scott confirmed her ownership of the vehicle and that defendant "drove it that particular day for [her]."
- 3 - In denying defendant's motion to suppress, the trial court
concluded that the seizure of the car was proper, because
"defendant [d]id not own it, ha[d] left the car and gone into the
house and essentially refuse[d] to come back out and identify who
owns the car," and approved an inventory search incidental to
impoundment. The Commonwealth counters defendant's continued
Fourth Amendment challenge on appeal with argument that he had no
expectation of privacy in an abandoned vehicle, and police acted
reasonably under the circumstances.
I. Standing
"A warrantless search is per se unreasonable and violative of
the Fourth Amendment of the United States Constitution, subject to
certain exceptions." Tipton v. Commonwealth, 18 Va. App. 370,
373, 444 S.E.2d 1, 3 (1994) (citation omitted). However, "[a]
defendant can only claim a Fourth Amendment violation if he
possesses a reasonable expectation of privacy in the object seized
or the place searched." Hardy v. Commonwealth, 17 Va. App. 677,
680, 440 S.E.2d 434, 436 (1994) (citations omitted). "The test is
whether the appellant objectively had a reasonable expectation of
privacy at the time and place of the disputed search. In making
the analysis the court looks to the
'totality-of-the-circumstances.'" McCoy v. Commonwealth, 2 Va.
App. 309, 311, 343 S.E.2d 383, 385 (1986) (citations omitted).
In addressing standing in the context of motor vehicles, we
have previously ruled that "[a]n accused has standing to object to
- 4 - a search of an automobile . . . if he is the owner or in lawful
possession of it." Hardy, 17 Va. App. at 680, 440 S.E.2d at 436
(citation omitted). Thus, "the mere fact that a vehicle is
borrowed does not diminish the borrower's reasonable expectation
of privacy in it." Id. (citations omitted).
Generally, "[a] warrantless seizure of abandoned property is
not a violation of the Fourth Amendment." Commonwealth v.
Holloway, 9 Va. App. 11, 17-18, 384 S.E.2d 99, 103 (1989).
One who voluntarily abandons property forfeits any expectation of privacy he or she may have in it. [United States v. Thomas, 864 F.2d 843, 845 (D.C. Cir. 1989)]. Therefore, he or she has no standing to complain of the property's search and seizure. United States v. Kendall, 655 F.2d 199, 200 (9th Cir. 1981).
Abandonment in the context of the Fourth Amendment is different from the property law concept of abandonment.
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Bray Argued at Richmond, Virginia
GARY LAMONT THOMPSON MEMORANDUM OPINION * BY v. Record No. 2395-98-2 JUDGE RICHARD S. BRAY FEBRUARY 1, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Ernest P. Gates, Judge Designate
Gregory W. Franklin, Assistant Public Defender (David J. Johnson, Public Defender, on brief), for appellant.
Michael T. Judge, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Gary Lamont Thompson (defendant) was convicted in a bench
trial for possession of cocaine with intent to distribute. On
appeal, he contends that the trial court erroneously denied his
motion to suppress evidence seized in violation of the Fourth
Amendment during an inventory search of an automobile. We agree
and reverse the conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. "In reviewing a trial court's denial of a motion to suppress,
'the burden is upon the defendant to show that the ruling, when
the evidence is considered most favorably to the Commonwealth,
constituted reversible error.'" McGee v. Commonwealth, 25 Va.
App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Fore
v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert.
denied, 449 U.S. 1017 (1980)). "Ultimate questions of reasonable
suspicion and probable cause to make a warrantless search" involve
issues of both law and fact, reviewable de novo on appeal.
Ornelas v. United States, 517 U.S. 690, 699 (1996). However,
"[i]n performing such analysis, we are 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, 25 Va. App. at 198, 487 S.E.2d at
261 (citation omitted).
On April 29, 1997, Richmond Detective William Burnette and
Police Officer Charles Battle observed defendant operating a
vehicle bearing an expired city decal. Battle "turned around and
got in behind" defendant but did not activate pursuit lights or
siren. Defendant immediately "took off at a high rate of speed,"
traveled one block, "pulled over . . . real quick" and properly
parked along the street. Defendant then locked the car, "jumped
from the vehicle, ran into the [adjacent] house," and "closed the
door." As defendant progressed toward the house, the officers
- 2 - "told him to stop that he had an expired decal . . . and [they]
wanted to talk to him about it."
Pursuing an investigation, the officers knocked at the door
of the residence, without response, "called the tags [of the
vehicle] in," and learned that it was registered to Barbara Scott 1
and had not been reported stolen. A woman then exited the house,
approached, and engaged Burnette and Battle in conversation.
Police determined that the car was not the property of the woman
but sought her assistance "to get the gentleman and come back
outside." She then re-entered the home, returning shortly to
report that defendant "refused to come out." Subsequent efforts
to coax defendant from the residence were unsuccessful.
Uncertain "whether [defendant's possession of the car] was
unauthorized use or not," the officers decided to impound it "for
investigation until [they] could contact the owner" and summoned a
tow truck. Upon arrival of the truck, the driver gained access to
the locked car using a "Slim Jim," and the officers undertook an
inventory of its contents pursuant to departmental procedure.
Inside a jacket found resting on the front seat, the officers
discovered "about seventy some hits of crack cocaine," the
offending contraband.
1 Subsequently, Barbara Scott confirmed her ownership of the vehicle and that defendant "drove it that particular day for [her]."
- 3 - In denying defendant's motion to suppress, the trial court
concluded that the seizure of the car was proper, because
"defendant [d]id not own it, ha[d] left the car and gone into the
house and essentially refuse[d] to come back out and identify who
owns the car," and approved an inventory search incidental to
impoundment. The Commonwealth counters defendant's continued
Fourth Amendment challenge on appeal with argument that he had no
expectation of privacy in an abandoned vehicle, and police acted
reasonably under the circumstances.
I. Standing
"A warrantless search is per se unreasonable and violative of
the Fourth Amendment of the United States Constitution, subject to
certain exceptions." Tipton v. Commonwealth, 18 Va. App. 370,
373, 444 S.E.2d 1, 3 (1994) (citation omitted). However, "[a]
defendant can only claim a Fourth Amendment violation if he
possesses a reasonable expectation of privacy in the object seized
or the place searched." Hardy v. Commonwealth, 17 Va. App. 677,
680, 440 S.E.2d 434, 436 (1994) (citations omitted). "The test is
whether the appellant objectively had a reasonable expectation of
privacy at the time and place of the disputed search. In making
the analysis the court looks to the
'totality-of-the-circumstances.'" McCoy v. Commonwealth, 2 Va.
App. 309, 311, 343 S.E.2d 383, 385 (1986) (citations omitted).
In addressing standing in the context of motor vehicles, we
have previously ruled that "[a]n accused has standing to object to
- 4 - a search of an automobile . . . if he is the owner or in lawful
possession of it." Hardy, 17 Va. App. at 680, 440 S.E.2d at 436
(citation omitted). Thus, "the mere fact that a vehicle is
borrowed does not diminish the borrower's reasonable expectation
of privacy in it." Id. (citations omitted).
Generally, "[a] warrantless seizure of abandoned property is
not a violation of the Fourth Amendment." Commonwealth v.
Holloway, 9 Va. App. 11, 17-18, 384 S.E.2d 99, 103 (1989).
One who voluntarily abandons property forfeits any expectation of privacy he or she may have in it. [United States v. Thomas, 864 F.2d 843, 845 (D.C. Cir. 1989)]. Therefore, he or she has no standing to complain of the property's search and seizure. United States v. Kendall, 655 F.2d 199, 200 (9th Cir. 1981).
Abandonment in the context of the Fourth Amendment is different from the property law concept of abandonment. Thomas, 864 F.2d at 845; United States v. Jackson, 544 F.2d 407, 409 (9th Cir. 1976). A person may retain a property interest in personal property while, at the same time, relinquishing his or her reasonable expectation of privacy in that property. Id. A person's "[i]ntent to retain a reasonable expectation of privacy" determines whether the property has been abandoned so as to permit its seizure without a warrant. Kendall, 655 F.2d at 200.
Whether a person intends to retain a reasonable expectation of privacy in property is to be determined by objective standards. United States v. Nordling, 804 F.2d 1466, 1469 (9th Cir. 1986); Kendall, 655 F.2d at 201; contra United States v. Knox, 839 F.2d 285, 293 (6th Cir. 1988). Such an intent may be inferred from words,
- 5 - acts, and other objective facts. Nordling, 804 F.2d at 1469; Jackson, 544 F.2d at 409.
The determination of this intent must be made after consideration of all relevant circumstances, but two factors are particularly important: denial of ownership and physical relinquishment of the property. Nordling, 804 F.2d at 1469. If a person relinquishes possession and disclaims ownership of personal property, he or she surrenders any expectation of privacy in that property. United States v. McKennon, 814 F.2d 1539, 1546 (11th Cir. 1987).
Id. at 18, 384 S.E.2d at 103.
Here, the Commonwealth's reliance on abandonment to deny
defendant standing to object to the warrantless search is
misplaced. In contrast to abandonment, defendant's conduct was
consistent with the continuing assertion of an established
possessory right and an attendant expectation of privacy in the
vehicle. He properly parked the car on a public street, locked
the doors, and proceeded into the adjacent house. Under such
circumstances, his refusal to engage in a consensual encounter
with the officers, despite their repeated entreaties, did not
manifest abandonment. 2
II. The Search
The Commonwealth's contention that the seizure and search
of the vehicle was supported by probable cause is likewise
without merit. "[P]robable cause is a flexible, common sense
2 The record does not disclose that the police intended to issue defendant a summons. See Code § 19.2-74.
- 6 - standard. It merely requires that the facts available to the
officer would 'warrant a man of reasonable caution in the
belief,' that certain items may be contraband or stolen property
or useful as evidence of a crime[.]" Texas v. Brown, 460 U.S.
730, 742 (1983) (citation omitted).
On the instant record, defendant's unwillingness to speak
with police, together with information that the vehicle was
registered to a female, clearly did not give rise to probable
cause to believe that the car was stolen or otherwise implicated
in criminal activity, especially when police were aware that the
car had not been reported stolen. 3 Citizens routinely operate
vehicles owned by others of a different gender and oftentimes
quite properly elect not to converse with police. 4
Accordingly, the seizure and search of the vehicle was
constitutionally impermissible under the circumstances of this
case, and the court erroneously admitted the resulting evidence.
We, therefore, reverse the conviction. Reversed and dismissed.
3 The record does not suggest that impoundment was prompted by the expired inspection decal. 4 Illinois v. Wardlow, ___ U.S. ___ (2000), decided after the instant appeal was briefed and argued before this Court, does not alter the result, although the decision may have provided support for a Terry stop of defendant.
- 7 -