COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Hodges Argued at Norfolk, Virginia
WILLIAM ANTHONY GRANT MEMORANDUM OPINION * BY v. Record No. 2925-96-1 JUDGE JAMES W. BENTON, JR. NOVEMBER 10, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Randolph T. West, Judge
Lyn M. Simmons for appellant. Leah A. Darron, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.
William Anthony Grant appeals his conviction for possession
of cocaine with intent to distribute and possession of a firearm
while in possession of cocaine. He contends that the trial judge
erred in refusing to suppress evidence and that the evidence was
insufficient to support his convictions. We disagree and affirm
the convictions.
I.
The evidence at trial proved that Dennis Singleton was
employed by a private business as an armed security guard to
patrol an apartment complex in the City of Newport News. At the
entrance to the apartment complex, signs are posted warning "No
trespassing" and stating that identification will be required.
Singleton's duties included "[e]nforcing local laws, property
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. rules, . . . making any kind of arrests, responding to any calls
of tenants having any problem with guests or other tenants."
In the early morning of September 2, 1995, Singleton and
another private security guard approached a vehicle, which
Singleton did not recognize, that was parked within the apartment
complex. The vehicle's two occupants, whom Singleton did not
recognize, were speaking to a woman who resided in the apartment
complex. When Singleton asked the woman if she knew the driver,
she said she knew him as "Eric" or "Rick" and she walked away. Singleton then asked both men for identification. Grant,
who was seated in the driver's seat, produced his operator's
license. The address on the license indicated that he was not a
resident of Woodsong Apartments. Singleton testified that Grant
responded "you know me . . . give me a break." Singleton asked
Grant to step out of the vehicle and asked Grant if he had any
drugs or weapons in the car.
At this point in the testimony, Grant's trial counsel made a
motion to suppress evidence because Singleton violated Grant's
"constitutional right . . . to remain in his vehicle." Grant's
trial counsel also questioned Singleton concerning his
discoveries. The trial judge denied Grant's motion to suppress
the evidence found on Grant's person and in the vehicle.
Singleton testified that when Grant exited the vehicle,
Grant told him that drugs were in a brown paper bag behind the
driver's seat. Singleton testified that he asked Grant for
- 2 - permission to search his person and vehicle and that Grant gave
him permission. Singleton found one marijuana cigarette in one
of Grant's pockets. He arrested Grant and handcuffed him.
Singleton then found more marijuana and several pieces of crack
cocaine in Grant's other pocket. Grant also had a pager and $244
in cash on Grant's person. In the vehicle, Singleton found a
brown paper bag that contained several large pieces of crack
cocaine and a black electronic scale. Singleton also found a
loaded gun under the passenger seat. Singleton then contacted the Newport News police. A police
officer arrived and took Grant to a magistrate, who issued an
arrest warrant.
At the conclusion of the Commonwealth's case-in-chief, Grant
made a motion to strike the evidence, arguing that the evidence
was insufficient to prove that he possessed the weapon found in
the vehicle. The trial judge denied this motion.
In his defense, Grant testified that Singleton pushed him up
against the truck, handcuffed him, and then searched his person
and the vehicle without his consent. Grant also testified that
he had been convicted of drug possession before and, therefore,
knew he could refuse consent to a search of his person or
vehicle. He testified that he did not consent because "I knew I
was dirty . . . . I knew I had cocaine in my truck and on my
person." Grant also testified that the pager belonged to the
daughter of the woman who resided in the apartments.
- 3 - After presenting evidence on his own behalf, Grant renewed
his motion to suppress. He did not, however, renew his motion to
strike. The trial judge denied Grant's motion to suppress and
found Grant guilty of possession of cocaine with intent to
distribute and possession of a firearm while in possession of
cocaine. Grant did not make a motion to set aside the verdict.
II.
Grant first argues that the evidence seized from his person
and vehicle was seized in violation of the Fourth Amendment and,
therefore, the trial judge should have granted his motion to
suppress. "Evidence obtained in violation of the Fourth Amendment is
inadmissible in a criminal prosecution for a charged criminal
violation pertaining to the seized evidence." Anderson v.
Commonwealth, 20 Va. App. 361, 363, 457 S.E.2d 396, 397 (1995).
However, the Fourth Amendment is implicated only in government
action, not in searches and seizures undertaken by private
actors. See United States v. Jacobsen, 466 U.S. 109, 113 (1984);
Morke v. Commonwealth, 14 Va. App. 496, 503, 419 S.E.2d 410, 414
(1992). "[A] private search, no matter how unreasonable, does
not constitute a constitutional violation warranting the
suppression of the evidence seized." Mills v. Commonwealth, 14
Va. App. 459, 463, 418 S.E.2d 718, 720 (1992). "Therefore, in
order to exclude evidence based on a Fourth Amendment violation,
a defendant must demonstrate the contested search or seizure was
- 4 - conducted by an officer of the government or someone acting at
the government's direction." Duarte v. Commonwealth, 12 Va. App.
1023, 1025, 407 S.E.2d 41, 42 (1991). Whether government action
is implicated is a question of fact that turns on the degree of
the government's "participation in the private party's
activities," id. at 1026, 407 S.E.2d at 42, and must be decided
under the circumstances of each case. Mills, 14 Va. App. at 463,
418 S.E.2d at 720. No evidence in this record tended to prove that Singleton
was acting at the government's direction or that the government
participated in his activities. Singleton was privately employed
to patrol the apartment complex; he was not a police officer. He
acted only in the interest of the apartment complex. No evidence
proved that any law enforcement agencies knew about or exercised
any power or control over Singleton's actions on the day in
question. From Singleton's initial contact with Grant through
the disputed search and seizure, Singleton was pursuing duties
related to his private employment as a security guard.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Hodges Argued at Norfolk, Virginia
WILLIAM ANTHONY GRANT MEMORANDUM OPINION * BY v. Record No. 2925-96-1 JUDGE JAMES W. BENTON, JR. NOVEMBER 10, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Randolph T. West, Judge
Lyn M. Simmons for appellant. Leah A. Darron, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.
William Anthony Grant appeals his conviction for possession
of cocaine with intent to distribute and possession of a firearm
while in possession of cocaine. He contends that the trial judge
erred in refusing to suppress evidence and that the evidence was
insufficient to support his convictions. We disagree and affirm
the convictions.
I.
The evidence at trial proved that Dennis Singleton was
employed by a private business as an armed security guard to
patrol an apartment complex in the City of Newport News. At the
entrance to the apartment complex, signs are posted warning "No
trespassing" and stating that identification will be required.
Singleton's duties included "[e]nforcing local laws, property
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. rules, . . . making any kind of arrests, responding to any calls
of tenants having any problem with guests or other tenants."
In the early morning of September 2, 1995, Singleton and
another private security guard approached a vehicle, which
Singleton did not recognize, that was parked within the apartment
complex. The vehicle's two occupants, whom Singleton did not
recognize, were speaking to a woman who resided in the apartment
complex. When Singleton asked the woman if she knew the driver,
she said she knew him as "Eric" or "Rick" and she walked away. Singleton then asked both men for identification. Grant,
who was seated in the driver's seat, produced his operator's
license. The address on the license indicated that he was not a
resident of Woodsong Apartments. Singleton testified that Grant
responded "you know me . . . give me a break." Singleton asked
Grant to step out of the vehicle and asked Grant if he had any
drugs or weapons in the car.
At this point in the testimony, Grant's trial counsel made a
motion to suppress evidence because Singleton violated Grant's
"constitutional right . . . to remain in his vehicle." Grant's
trial counsel also questioned Singleton concerning his
discoveries. The trial judge denied Grant's motion to suppress
the evidence found on Grant's person and in the vehicle.
Singleton testified that when Grant exited the vehicle,
Grant told him that drugs were in a brown paper bag behind the
driver's seat. Singleton testified that he asked Grant for
- 2 - permission to search his person and vehicle and that Grant gave
him permission. Singleton found one marijuana cigarette in one
of Grant's pockets. He arrested Grant and handcuffed him.
Singleton then found more marijuana and several pieces of crack
cocaine in Grant's other pocket. Grant also had a pager and $244
in cash on Grant's person. In the vehicle, Singleton found a
brown paper bag that contained several large pieces of crack
cocaine and a black electronic scale. Singleton also found a
loaded gun under the passenger seat. Singleton then contacted the Newport News police. A police
officer arrived and took Grant to a magistrate, who issued an
arrest warrant.
At the conclusion of the Commonwealth's case-in-chief, Grant
made a motion to strike the evidence, arguing that the evidence
was insufficient to prove that he possessed the weapon found in
the vehicle. The trial judge denied this motion.
In his defense, Grant testified that Singleton pushed him up
against the truck, handcuffed him, and then searched his person
and the vehicle without his consent. Grant also testified that
he had been convicted of drug possession before and, therefore,
knew he could refuse consent to a search of his person or
vehicle. He testified that he did not consent because "I knew I
was dirty . . . . I knew I had cocaine in my truck and on my
person." Grant also testified that the pager belonged to the
daughter of the woman who resided in the apartments.
- 3 - After presenting evidence on his own behalf, Grant renewed
his motion to suppress. He did not, however, renew his motion to
strike. The trial judge denied Grant's motion to suppress and
found Grant guilty of possession of cocaine with intent to
distribute and possession of a firearm while in possession of
cocaine. Grant did not make a motion to set aside the verdict.
II.
Grant first argues that the evidence seized from his person
and vehicle was seized in violation of the Fourth Amendment and,
therefore, the trial judge should have granted his motion to
suppress. "Evidence obtained in violation of the Fourth Amendment is
inadmissible in a criminal prosecution for a charged criminal
violation pertaining to the seized evidence." Anderson v.
Commonwealth, 20 Va. App. 361, 363, 457 S.E.2d 396, 397 (1995).
However, the Fourth Amendment is implicated only in government
action, not in searches and seizures undertaken by private
actors. See United States v. Jacobsen, 466 U.S. 109, 113 (1984);
Morke v. Commonwealth, 14 Va. App. 496, 503, 419 S.E.2d 410, 414
(1992). "[A] private search, no matter how unreasonable, does
not constitute a constitutional violation warranting the
suppression of the evidence seized." Mills v. Commonwealth, 14
Va. App. 459, 463, 418 S.E.2d 718, 720 (1992). "Therefore, in
order to exclude evidence based on a Fourth Amendment violation,
a defendant must demonstrate the contested search or seizure was
- 4 - conducted by an officer of the government or someone acting at
the government's direction." Duarte v. Commonwealth, 12 Va. App.
1023, 1025, 407 S.E.2d 41, 42 (1991). Whether government action
is implicated is a question of fact that turns on the degree of
the government's "participation in the private party's
activities," id. at 1026, 407 S.E.2d at 42, and must be decided
under the circumstances of each case. Mills, 14 Va. App. at 463,
418 S.E.2d at 720. No evidence in this record tended to prove that Singleton
was acting at the government's direction or that the government
participated in his activities. Singleton was privately employed
to patrol the apartment complex; he was not a police officer. He
acted only in the interest of the apartment complex. No evidence
proved that any law enforcement agencies knew about or exercised
any power or control over Singleton's actions on the day in
question. From Singleton's initial contact with Grant through
the disputed search and seizure, Singleton was pursuing duties
related to his private employment as a security guard. That
conduct clearly does not implicate the protections of the Fourth
Amendment. Accordingly, the trial judge did not err in denying
Grant's motion to suppress.
III.
Grant next argues that the evidence was insufficient to
support his conviction for possession of cocaine with intent to
distribute. However, Grant actually testified that he knew about
- 5 - the presence of the cocaine and the scale. Moreover, Grant's
trial counsel never claimed in the trial court that the evidence
was insufficient to show that Grant possessed the cocaine and
scale found in the vehicle or that Grant intended to distribute
the cocaine. Accordingly, Grant is barred from raising this
issue for the first time on appeal. Rule 5A:18. A challenge to
the sufficiency of the Commonwealth's evidence is waived if not
raised with some specificity in the trial court. Mounce v. Commonwealth, 4 App. 433, 435, 357 S.E.2d 742, 744 (1987). A
reason not asserted at trial as to why the evidence is
insufficient is not considered on appeal. See Floyd v.
Commonwealth, 219 Va. 575, 584, 249 S.E.2d 171, 176 (1978).
Moreover, the record does not reflect any reason to invoke the
good cause or ends of justice exceptions to Rule 5A:18.
IV.
Grant also challenges the sufficiency of the evidence to
convict him for possession of a firearm while in possession of
cocaine. At the end of the Commonwealth's case-in-chief, Grant
moved to strike the Commonwealth's evidence based on the
sufficiency of the evidence to show that Grant possessed the
handgun found in the vehicle. Grant then presented evidence but
did not make another motion to strike the evidence or make a
motion to set aside the verdict.
When Grant elected to present evidence on his behalf, he
waived his right to stand on his motion to strike the evidence
- 6 - made at the close of the Commonwealth's case-in-chief. "[I]n a
bench trial, where a defendant wishes to preserve a sufficiency
motion after presenting evidence, the defendant must make a
motion to strike at the conclusion of all the evidence, present
an appropriate argument in summation, or make a motion to set
aside the verdict." Howard v. Commonwealth, 21 Va. App. 473,
478, 465 S.E.2d 142, 144 (1995). Because Grant failed to renew
his motion to strike or move to set aside the verdict, the issue
is not preserved for appeal. Accordingly, we affirm the convictions.
Affirmed.
- 7 -