Susan Elaine Bailey v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: October 26, 1999
• Docket: 1915983
• Status: Published

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Coleman and Bumgardner Argued at Salem, Virginia

WILLIAM DEAN SHAVER

v. Record No. 1909-98-3

COMMONWEALTH OF VIRGINIA OPINION BY JUDGE SAM W. COLEMAN III SUSAN ELAINE BAILEY OCTOBER 26, 1999

v. Record No. 1915-98-3

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY Ray W. Grubbs, Judge

Frederick M. Kellerman, Jr. (Long, Long & Kellerman, P.C., on brief), for appellant William Dean Shaver.

Beverly M. Davis (Davis, Davis & Davis, on brief), for appellant Susan Elaine Bailey.

Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on briefs), for appellee.

William Dean Shaver and Susan Elaine Bailey were convicted in

a joint bench trial of receiving stolen property, viz., an

all-terrain vehicle (ATV), in violation of Code § 18.2-108. They

appeal the trial court's refusal to suppress evidence allegedly

obtained in violation of their Fourth Amendment protection against

unreasonable search and seizures. They also contend the evidence

was insufficient to support their convictions. Because the codefendants had no cognizable expectation of privacy at the place

the vehicle was located or in the stolen vehicle, we affirm the

trial court's denial of the motion to suppress. Additionally, we

find the evidence sufficient to support the convictions.

BACKGROUND

Investigator Croy went to the home of William Shaver and

Susan Bailey to investigate a forgery complaint that Bailey had

lodged. As Croy left the residence, he observed an ATV with a

non-factory camouflage paint job parked at the end of the

driveway, next to the front porch and about 250 feet from the main

road. The ATV was uncovered and visible from the road. Croy was

aware of an ongoing investigation into ATV thefts and knew that

his office recently recovered a stolen ATV with a similar

camouflage paint job.

The following day, Croy returned to the defendants' residence

with Investigator Fleet, who was investigating four or five recent

ATV thefts in the area. Fleet knew that relatives of Bailey had

been arrested in connection with other recent ATV thefts and that

one of the recovered ATVs had a paint job similar to the one at

the defendants' residence. The investigators intended to speak

with the defendants and to examine the ATV to determine whether it

was the same make and model as one reported stolen -- a blue Honda

with a gray seat and scratch marks on the right rear fender. The

officers did not have a search warrant.

- 2 - The investigators knocked on the front door of the residence

but no one answered. They then inspected the ATV and confirmed

that it was the same make and model as the one reported stolen.

Fleet confirmed that the camouflage paint and seat cover were not

factory issued. The investigators raised the seat cover and

observed that the original seat was gray. They also scratched

some paint from the ATV with a penknife, which revealed underlying

blue paint. The vehicle identification number had been filed or

ground off.

The investigators then called Curtis Dean Fugate, the man who

had recently reported stolen a blue Honda ATV with a gray seat,

and requested that he come to the defendants' residence. On

arrival, Fugate identified ten characteristics of the ATV that

confirmed it to be his stolen ATV. The officers seized the ATV

and released it to Fugate.

Shaver called the sheriff's office later that evening to

report the ATV stolen. Shaver claimed to have purchased the ATV

at a flea market for $1,500. At trial, Bailey corroborated

Shaver's account of when they purchased the ATV and that she had

given him the money from their joint funds. The date on which

Shaver claimed to have purchased the ATV was, however, five months

before the date the ATV was stolen from Fugate. Shaver could not

produce a receipt or identify the person who allegedly had sold

the ATV to him. Fugate estimated the ATV's value to be $3,500.

- 3 - ANALYSIS

Suppression Motion

On appeal from a motion to suppress evidence, we review the

evidence in the light most favorable to the prevailing party. See

McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261

(1997) (en banc). When reviewing a Fourth Amendment suppression

ruling, "we are bound by the trial court's findings of historical

fact unless 'plainly wrong' or without evidence to support them."

Id. at 198, 487 S.E.2d at 261 (citing Ornelas v. United States,

517 U.S. 690, 699 (1996)). However, we consider de novo whether

those facts implicate the Fourth Amendment and, if so, whether the

officers unlawfully infringed upon an area protected by the Fourth

Amendment. See id. Here, accepting the facts as found by the

trial judge, we hold that Bailey and Shaver had no legitimate

expectation of privacy at the location on their property where the

ATV was parked or in the ATV.

Two separate searches or intrusions by the officers are at

issue. First, the officers entered upon the defendants' property

where they saw and examined the ATV. Second, the officers

searched the ATV by lifting the seat cover and scratching the

ATV's surface paint.

Subject to several well established exceptions, the Fourth

Amendment prohibits warrantless searches of any place or thing in

which a person has a justifiable expectation of privacy. See

- 4 - Mincey v. Arizona, 437 U.S. 385, 390 (1978). To determine whether

a citizen "enjoys a reasonable expectation of privacy . . . we

consider whether he [or she] has exhibited an expectation of

privacy in the object and whether that expectation is one that

'society is prepared to recognize as reasonable.'" Anderson v.

Commonwealth, 25 Va. App. 565, 576, 490 S.E.2d 274, 279 (1997)

(quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan,

J., concurring)), aff'd, 256 Va. 580, 507 S.E.2d 339 (1998).

Depending on circumstances, a citizen's reasonable

expectation of privacy may extend to his or her residence,

personal papers, vehicles, and belongings. However, where

private lands are exposed to observation by members of the

public who may legitimately come upon the property, a citizen

does not reasonably have an expectation of privacy in areas that

the passing public can observe. See Katz, 389 U.S. at 351

("What a person knowingly exposes to the public, even in his own

home or office, is not a subject of Fourth Amendment

protection."). Here, the defendants had no reasonable

expectation of privacy in those areas of their property

observable by members of the public who might approach their

residence, pass by, or lawfully be upon their property.

Therefore, they had no expectation of privacy in the area where

the ATV was parked, which was next to their front porch, near

the path of entry to the residence and visible from the road.

- 5 - See United States v. Ventling, 678 F.2d 63, 66 (8th Cir. 1982)

(finding that the defendant did not have a reasonable

expectation of privacy in his driveway which was in public

view); see generally United States v. McIver, __ F.3d __, __

1999 WL 587573, at *5 (9th Cir. Aug. 6, 1999) (concluding that

affixing an electronic device to the undercarriage of

defendant's vehicle which was parked in the defendant's driveway

did not violate the Fourth Amendment because the defendant

failed to demonstrate that he had a reasonable expectation of

privacy in his driveway).

People commonly have different expectations, whether considered or not, for the access areas of their premises than they do for more secluded areas. Thus, we do not place things of a private nature on our front porches that we may very well entrust to the seclusion of a backyard, patio or deck. In the course of urban life, we have come to expect various members of the public to enter upon such a driveway, e.g., brush salesmen, newspaper boys, postmen, Girl Scout cookie sellers, distressed motorists, neighbors, friends. Any one of them may be reasonably expected to report observations of criminal activity to the police. . . . If one has a reasonable expectation that various members of society may enter the property in their personal or business pursuits, he should find it equally likely that the police will do so.

State v. Corbett, 516 P.2d 487, 490 (Or. Ct. App. 1973)).

In United States v. Smith, 783 F.2d 648 (6th Cir. 1986), the

Sixth Circuit concluded that whether a driveway is protected from

entry by police officers varies from case to case and is dependant

- 6 - on whether the driveway is visible and accessible to the public.

The court further noted that whether the driveway was within the

curtilage of the house was not determinative. See id. at 651. In

Smith, a police officer, acting on an informant's tip, drove to

the defendant's residence and up the private driveway

approximately seventy-five to one hundred yards. See id. at 650.

Although there was a wire fence along the highway, the driveway

was unobstructed. When the officer reached the house, he observed

a marijuana plant growing next to the house. See id. The court

held that the defendant had no reasonable expectation of privacy

where the plant was growing and further held that the officer did

not violate the defendant's Fourth Amendment rights by entering

the driveway and proceeding to the residence.

Here, the ATV was parked on a private drive near the front

porch of the home where it was visible to the public from the

street. The defendants made no attempt to restrict or shield the

driveway from public view. The driveway was not enclosed by a

fence, shrubbery, or other barrier. See United States v.

Humphries, 636 F.2d 1172, 1179 (9th Cir. 1980) (finding that the

defendant did not have a reasonable expectation of privacy in his

driveway and in the inspection of the car parked thereon because

the car was visible from the street and because the driveway was

not enclosed by a fence or shrubbery and the officer did not have

to move anything to gain access to the driveway). Therefore, when

- 7 - the officers entered upon the defendants' property to view the

ATV, they were on the driveway and at the front of the residence

which was visible to the public and those persons approaching the

defendants' home. The Fourth Amendment protections did not

prohibit the officers from entering the driveway and approaching

the house from where they could see and observe the ATV. See

Illinois v. Andreas, 463 U.S. 765, 771 (1983) ("If the inspection

by police does not intrude upon a legitimate expectation of

privacy, there is no 'search' subject to the Warrant Clause.")

(citation omitted). Therefore, the presence of the officers in

the driveway and their observation of the ATV at that location did

not implicate the Fourth Amendment.

The defendants also contend they had an expectation of

privacy in the underside of the ATV's seat cushion and in the

ATV's undercoat of paint -- items which the defendants clearly did

not expose to the public. We find the defendants had no

legitimate expectation of privacy in the ATV because they had no

lawful claim of ownership in the ATV.

"A general rule has developed, stating that a person's

interest in his or her possession of stolen property is not a

legitimate expectation of privacy society is willing to recognize

as reasonable." Travis v. State, __ So.2d __, __ 1997 WL 187121,

at *50-51 (Ala. Crim. App. Apr. 18, 1997) (citing Brown v. United

States, 411 U.S. 223, 230 n.4 (1973); United States v. Hensel, 672

- 8 - F.2d 578 (6th Cir. 1982); United States v. Hargrove, 647 F.2d 411

(4th Cir. 1981); Smith v. Garrett, 586 F.Supp. 517 (N.D.W.Va.

1984); McMillian v. State, 499 A.2d 192 (Md. App. 1985); People v.

Mercado, 114 A.D.2d 377 (N.Y.S.2d 1985); Sanborn v. State, 304

S.E.2d 377 (Ga. 1983); State v. Hamm, 348 A.2d 268 (Me. 1975)).

"[A] thief has no legitimate expectation of privacy in stolen property, as such" and this means that the thief cannot establish standing solely by virtue of his relationship to the stolen property, but would have to establish that the police actually interfered with his person or with a place as to which he had a reasonable expectation of privacy.

5 Wayne R. LaFave, Search and Seizure § 11.3(f), at 203 (3d ed.

1996) (quoting Godfrey v. United States, 408 A.2d 1244, 1246 (D.C.

App. 1979), amended by 414 A.2d 214 (1980)); see Rakas v.

Illinois, 439 U.S. 128, 143-44 n.12 (1978) (noting a thief,

wrongfully present on another's property maintains no legitimate

expectation of privacy in that property); United States v.

McCambridge, 551 F.2d 865, 870 n.2 (1st Cir. 1977) (noting that

the defendant had no standing to challenge the search of the

stolen suitcase because he did not have an ownership interest or

other right to it); Josephs v. Commonwealth, 10 Va. App. 87, 98,

390 S.E.2d 491, 497 (1990) (en banc) (finding that a passenger

riding in a stolen vehicle maintained no expectation of privacy in

that vehicle); Commonwealth v. Strickland, 707 A.2d 531, 534 (Pa.

Super. 1998) (upholding the search of the vehicle in which the

- 9 - defendant was driving finding that the defendant could not

establish a legally-cognizable expectation of privacy in that

which was stolen); Hamm, 348 A.2d at 273 (stating that society is

unwilling to recognize as reasonable a thief's expectation of

privacy in stolen property); Graham v. State, 421 A.2d 1385, 1389

(Md. App. 1980) (refusing to recognize a thief's expectation of

privacy in a stolen backpack and moped).

This case and the foregoing cases are distinguishable from

Arizona v. Hicks, 480 U.S. 321 (1987). In Hicks, police

officers entered the defendant's home to investigate a recent

shooting. See id. at 323. While in the home, an officer

noticed two sets of expensive stereo equipment which seemed out

of place in the "squalid and otherwise ill-appointed four-room

apartment." Id. Suspecting that the equipment was stolen, the

officer moved some of the equipment to inspect it. The officer

reported his findings to his headquarters and, after learning

that the equipment was in fact stolen, seized it. See id. The

Supreme Court held that the officer exceeded the scope of the

initial, authorized intrusion when he moved the stereo equipment

in order to examine it. See id. at 324. The Court found that

moving the equipment constituted a "'search' separate and apart

from the search for the shooter, victims, and weapons that was

the lawful objective of his entry into the apartment." Id. at

324-25. The Court concluded that the officer's actions, which

- 10 - were unrelated to the authorized intrusion, "exposed to view

concealed portions of the apartment [and] its contents" and

constituted a new invasion of the defendant's privacy

unjustified by the exigent circumstances of the initial

authorized entry. Id. at 325. The Court held that absent

probable cause to believe the property was stolen, the search

was unjustified. See id. at 328. The controlling factor in

Hicks was that the stolen property was inside Hicks' apartment

where he clearly had an expectation of privacy which the officer

violated by moving and searching the personal belongings without

probable cause. Here, however, the entry into the defendants'

driveway and observation of the ATV did not implicate the Fourth

Amendment, 1 and the defendants had no expectation of privacy in

the stolen ATV. See Godfrey, 408 A.2d at 1247.

Because the police did not violate the defendants' Fourth

Amendment rights by entering upon their real estate, the

dispositive issue in the suppression motion was whether the

defendants unlawfully possessed the ATV. Because sufficient

evidence proved that the defendants knowingly and unlawfully

possessed the stolen ATV, the defendants had no legitimate

expectation of privacy in the ATV and no basis to challenge, on

1 Had the officers violated defendants' expectation of privacy in order to gain access to the ATV, Hicks would be controlling.

- 11 - Fourth Amendment grounds, the officers' examination of the

undercoat of paint or the underside of the ATV's seat cushion.

Accordingly, the trial court did not err by refusing to

suppress the evidence and proceeding to the merits of the case.

Sufficiency

Viewed in the light most favorable to the Commonwealth, see

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975), the evidence was sufficient to sustain the defendants'

convictions for receiving stolen property.

To convict a defendant under Code § 18.2-108, the

Commonwealth must prove that property "was (1) previously stolen

by another, and (2) received by defendant, (3) with knowledge of

the theft, and (4) a dishonest intent." Bynum v. Commonwealth, 23

Va. App. 412, 419, 477 S.E.2d 750, 754 (1996). Guilty knowledge

"is sufficiently shown if the circumstances proven are such as

must have made or caused the recipient of stolen goods to believe

they were stolen." Reaves v. Commonwealth, 192 Va. 443, 451, 65

S.E.2d 559, 564 (1951). The fact that a defendant paid a patently

low price for property is a circumstance from which a trier of

fact may infer guilty knowledge. See Wilson v. Commonwealth, 220

Va. 26, 35, 255 S.E.2d 464, 469-70 (1979).

"Circumstantial evidence is as competent and is entitled to

as much weight as direct evidence, provided it is sufficiently

convincing to exclude every reasonable hypothesis except that of

- 12 - guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864,

876 (1983). However, "[t]he Commonwealth need only exclude

reasonable hypotheses of innocence that flow from the evidence,

not those that spring from the imagination of the defendant."

Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29

(1993).

The evidence proved that Fugate's ATV, which was recently

stolen, was recovered from the defendants' property. The

defendants admitted they possessed the ATV and claimed to have

purchased it. Fugate identified ten characteristics of the ATV

that confirmed that it was his ATV. The Commonwealth's evidence

supported the inference that the defendants knew the ATV was

stolen property. The date on which the defendants claimed to have

purchased the ATV preceded the date by approximately five months

that the ATV was stolen from Fugate. This fact give rise to a

permissible inference that the defendants sought to conceal facts

about their acquisition of the ATV. The defendants, who claimed

to have paid $1,500 of on-hand cash for an ATV worth approximately

$3,500, were unable to produce a receipt or identify the seller.

The trial court accepted the Commonwealth's evidence while

rejecting the defendants' testimony, and we cannot hold that this

decision was plainly wrong. "The credibility of the witnesses and

the weight accorded the evidence are matters solely for the fact

finder who has the opportunity to see and hear that evidence as it

- 13 - is presented." Sandoval v. Commonwealth, 20 Va. App. 133, 138,

455 S.E.2d 730, 732 (1995) (citations omitted). Accordingly, the

trial court did not err by denying the defendants' motion to

strike the evidence.

Therefore, we affirm the defendants' convictions.

Affirmed.

- 14 -