COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Richmond, Virginia
SULAYMAAN AL-KARRIEN, S/K/A
SULAYMAAN AL-KARRIEM
OPINION BY
v. Record No. 0402-01-2 JUDGE LARRY G. ELDER
APRIL 2, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
Craig W. Stallard, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Randolph A. Beales,
Attorney General, on brief), for appellee.
Sulaymaan Al-Karrien, sometimes known as Sulaymann
Al-Karriem (appellant), appeals from his conviction for
possession of cocaine with an intent to distribute in violation
of Code § 18.2-248. On appeal, he contends the trial court
erroneously denied his motion to suppress the cocaine, which was
found in a cup of soup he relinquished at the direction of a
police officer. We hold the trial court's finding that
appellant abandoned the cup and its contents when he
relinquished it at the direction of a police officer was plainly
wrong. We further hold the record does not support the
alternate finding urged by the Commonwealth, that appellant
abandoned the cup and its contents when he did not seek to
reclaim it following a weapons frisk while he remained in the
custody of the police. We also reject the Commonwealth's
contention that the search of the cup was justified by the plain
view doctrine or the existence of probable cause to arrest
appellant for some other offense. Because no evidence other
than the illegally seized cocaine supported appellant's
conviction, we reverse the conviction and dismiss the charge.
I.
BACKGROUND 1
At around 12:00 p.m. on November 5, 1999, while on routine
patrol in a marked police car, Officers A.J. Jones and E.L.
Gadson, Sr., saw a group of four juveniles standing together in
front of a convenience store. Officer Jones could not tell
whether the juveniles were talking to each other and "traveling
together" or "if they were just in close proximity." After
looking in the officers' direction, three of the juveniles "ran
inside the store." Officer Jones suspected the juveniles were
truant, and he went into the store "to interview them and find
out their ages."
Once inside the store, Officer Jones saw that appellant had
gone to the left and the other two juveniles had gone to the
1
In ruling on a motion to suppress, we consider the
evidence adduced at both the suppression hearing and the trial.
DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540,
542-43 (1987).
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right. The officers told the juveniles to show their hands,
which they did, and Officer Jones approached appellant.
Appellant had in his hand "[a] cup of noodles," "like Oodles of
Noodles that you pour hot water into." Appellant also had "a
tobacco product behind his ear," and he looked "scared,
worried." Jones thought appellant did not look "old enough not
to be in school" and "to have tobacco products," and Jones asked
appellant how old he was. Although appellant was seventeen
years old at the time, he told Officer Jones he was nineteen.
Appellant also gave Jones a false name, although the record does
not establish when Officer Jones learned this name was false.
When Officer Jones asked appellant for identification to prove
his age, appellant was unable to produce any identification.
At about that same time, another officer found a gun in the
possession of one of the other juveniles, and Officer Jones told
appellant "[he] was going to pat [appellant] down for weapons."
Prior to conducting the pat-down, "[Officer Jones] asked for
[appellant's] cup of noodles" because he "want[ed] appellant's
hands free and clear" during the pat-down. Appellant had not
yet paid for the cup of noodles. Appellant handed Officer Jones
the cup of noodles, and Officer Jones set the cup down on the
counter in the front of the store.
After patting appellant down and finding no weapons,
Officer Jones left the cup of noodles unattended and escorted
appellant outside, where he placed appellant in the custody of
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Officer Gadson. Although Jones had seen appellant in possession
of a tobacco product, he agreed that department policy was not
to arrest a juvenile in possession of a tobacco product and that
he would have issued appellant a summons for that offense if he
had determined that appellant was underage. Officer Jones said
appellant was being detained on suspicion of truancy until the
officers could "find out his age and who he was."
While Officer Gadson "watch[ed] [appellant]," Officer Jones
reentered the store to "look for contraband." While searching
the back of the store where the other two juveniles had been
standing, Jones found contraband in the form of "one rock."
Saying "something told me to check the cup of noodles," Jones
then moved to the front of the store, where he examined
appellant's cup of soup. When he first looked into the cup, he
saw only soup. When he stirred the soup, however, "one
off-white rock," which he believed to be cocaine, "[rose] to the
top" of the cup of soup. Jones agreed that the rock "wasn't
immediately visible" and that "[he] had to stir the cup of
noodles to see that there was something inside."
As Officer Jones walked back outside the store, he
continued to stir the cup and eventually found "floating" in the
cup a total of seven "small ziplock plastic [bags] containing"
what appeared to be the same "off-white" substance. Once
Officer Jones found the suspected cocaine in the cup of noodles,
he placed appellant under arrest. Subsequent laboratory testing
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indicated that the bags extracted from the soup contained a
total of approximately two grams of cocaine.
Appellant moved to suppress the cocaine, contending that
the police forced him to relinquish the cup of soup and that
they did not have reasonable suspicion, a search warrant,
probable cause and exigent circumstances, or probable cause for
arrest to justify their search of the cup. The Commonwealth
argued that the search of the cup was justified because the
officers had probable cause to arrest, because the "evidence
[was] in plain view," or because appellant abandoned the cup.
The Commonwealth conceded, however, that appellant relinquished
possession of the cup "at the direction of [Officer Jones]."
The trial court denied the motion to suppress, finding
that [appellant] was lawfully detained and
arrested and that the officer lawfully
seized and looked at the cup of noodles,
which was put down not at the direction of
the officer. The officer said he wanted to
pat [appellant] down. [Appellant] could
have easily held the cup of noodles up in
his hand while the officer patted him down.
(Emphasis added).
II.
ANALYSIS
On appeal of the denial of a motion to suppress, we
consider the evidence adduced at both the suppression hearing
and the trial, DePriest v. Commonwealth, 4 Va. App. 577, 583,
359 S.E.2d 540, 542-43 (1987), and we view that evidence in the
light most favorable to the Commonwealth, Commonwealth v.
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Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
"[W]e are bound by the trial court's findings of historical fact
unless 'plainly wrong' or without evidence to support them,"
McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261
(1997) (en banc), but we review de novo the trial court's
application of defined legal standards such as reasonable
suspicion and probable cause to the particular facts of the
case, see Ornelas v. United States, 517 U.S. 690, 699, 116
S. Ct. 1657, 1663, 134 L. Ed. 2d 911 (1996).
Although "the Fourth Amendment protects people, not
places," Katz v. United States, 389 U.S. 347, 351, 88 S. Ct.
507, 511, 19 L. Ed. 2d 576 (1967), "[the] capacity to claim
[its] protection . . . depends . . . upon whether the person
. . . has a legitimate expectation of privacy in the invaded
place [or object]." Rakas v. Illinois, 439 U.S. 128, 143, 99
S. Ct. 421, 430, 58 L. Ed. 2d 387 (1978).
First, we must determine whether the
individual has manifested "a subjective
expectation of privacy" in the object of the
challenged search. This inquiry is a
factual determination to which we must give
deference on appeal. Second, we must
determine whether the expectation of privacy
is objectively reasonable, one that society
is willing to recognize as legitimate. This
is a legal determination, requiring no
deference on review.
Johnson v. Commonwealth, 26 Va. App. 674, 683-84, 496 S.E.2d
143, 148 (1998) (citations omitted) (quoting Wellford v.
Commonwealth, 227 Va. 297, 301, 315 S.E.2d 235, 237 (1984)).
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"[This] guarantee protects alike the 'traveler who carries a
toothbrush and a few articles of clothing in a paper bag' and
'the sophisticated executive with a locked attaché case.'"
Smith v. Ohio, 494 U.S. 541, 542, 110 S. Ct. 1288, 1289, 108
L. Ed. 2d 464 (1990) (quoting United States v. Ross, 456 U.S.
798, 822, 102 S. Ct. 2157, 2171, 72 L. Ed. 2d 572 (1982)).
An individual who has a legitimate expectation of privacy
in an object nevertheless may abandon that expectation, thereby
forfeiting "all standing to complain of its warrantless search
and seizure." Wechsler v. Commonwealth, 20 Va. App. 162, 173,
455 S.E.2d 744, 749 (1995). Although the individual whose
property was searched bears the burden of proving a legitimate
expectation of privacy in the item searched, the burden of
proving abandonment is on the government. United States v.
Ramos, 12 F.3d 1019, 1023 (11th Cir. 1994).
In appellant's case, the Commonwealth argued that appellant
abandoned the cup of soup in the convenience store because he
had not yet paid for it and he relinquished his possession of
it, albeit at the direction of Officer Jones. It also argued
that the police had probable cause to arrest appellant for
truancy, thereby permitting a search of the cup incident to
arrest, or, in the alternative, that the search of the cup was
justified because Officer Jones saw the contraband in plain view
in the cup. The Commonwealth did not argue that appellant
lacked a reasonable expectation of privacy in the cup and its
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contents while it remained in appellant's actual physical
possession. The trial court denied the motion to suppress based
on a finding that appellant abandoned the cup when he
relinquished possession of it prior to the pat-down. In this
fashion, the Commonwealth implicitly conceded, and the trial
court implicitly found, that appellant had a reasonable
expectation of privacy in the cup of noodles while it remained
in his actual possession. Thus, we assume without deciding that
appellant had such an expectation, and we consider whether the
evidence supported the trial court's ruling that appellant
abandoned any expectation of privacy he may have had in the cup.
Abandonment under the Fourth Amendment
is different from the property law concept
of abandonment. 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. A person's "[i]ntent to
retain a reasonable expectation of privacy"
[governs] whether the property has been
abandoned . . . [and] is to be determined by
objective standards. Such an intent may be
inferred from words, acts and other
objective facts. 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.
Holloway v. Commonwealth, 9 Va. App. 11, 18, 384 S.E.2d 99, 103
(1989) (quoting United States v. Kendall, 655 F.2d 199, 200 (9th
Cir. 1981)) (citations omitted).
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"[A]n absence of assertion of ownership does not
necessarily constitute abandonment. Whether relinquishing
physical possession . . . represents a voluntary abandonment
. . . depends upon the nature of the act and the circumstances
surrounding the act." Id. at 18-19, 384 S.E.2d at 103
(citations omitted). For example, a citizen who "throw[s] [his
private property] on a car to respond to a police officer's
inquiry" and then "attempts to protect [that] property from
inspection . . . clearly has not abandoned that property."
Smith, 494 U.S. at 543-44, 110 S. Ct. at 1290. Similarly,
absent additional evidence of abandonment, an individual who
"merely . . . plac[es] [his property] down as ordered by the
police" does not "abandon [that property] and forego his
expectation of privacy." State v. McBee, 593 N.E.2d 574, 581
(Ill. App. Ct. 1992).
Conversely, an individual who, when approached by police in
a consensual encounter, disposes of an item in his possession by
"throwing [it] toward a nearby garbage can and pile of garbage
evince[s] his intent to abandon and dispose of it." State v.
Thomas, 609 N.Y.S.2d 614, 615 (N.Y. App. Div. 1994) (involving
search of discarded orange juice container in which illegal
drugs were found). Similarly,
the driver of an automobile who, when the
vehicle caught on fire, pulled off to the
side of the highway, got out of the vehicle,
left the scene in another automobile and had
not returned two to three hours later, was
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deemed to have abandoned and, therefore,
forfeited his expectation of privacy in a
briefcase in the trunk of a burning
automobile.
Holloway, 9 Va. App. at 19, 384 S.E.2d at 103 (citing United
States v. Oswald, 783 F.2d 663, 667 (6th Cir. 1986)).
We hold that the trial court was plainly wrong in finding
that appellant abandoned "the cup of noodles" because he "put
[it] down not at the direction of the officer." (Emphasis
added). Although the trial court said "[appellant] could have
easily held the cup of noodles up in his hand while the officer
patted him down," the evidence in the record, viewed in the
light most favorable to the Commonwealth, establishes that
appellant relinquished "[the] cup of noodle soup . . . at
[Officer Jones'] direction," and the Commonwealth conceded this
fact during argument in the trial court. As set out above, an
individual who relinquishes possession of an object when ordered
to do so by the police does not "abandon [that object] and
forego his expectation of privacy" in it. McBee, 593 N.E.2d at
581. Thus, in the face of Officer Jones' direction to appellant
to relinquish possession of the cup, whether "[appellant] could
have easily held the cup of noodles up in his hand while the
officer patted him down" was irrelevant to the analysis and
provides no basis for the trial court's finding of abandonment.
Without expressly conceding that the trial court erred in
ruling that appellant abandoned the cup of soup by relinquishing
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his possession of it prior to the weapons frisk, the
Commonwealth contends the trial court's finding of abandonment
was correct because appellant abandoned the cup when he "chose
to leave the soup behind when he went outside of the store." We
hold even evidence that appellant had an opportunity to reclaim
and purchase the cup of soup but did not do so would not
establish that appellant abandoned the soup. It is undisputed
that appellant remained in the custody of the police officers at
all relevant times after he relinquished possession of the soup
at Officer Jones' direction until Officer Jones searched the
soup. As we acknowledged in Holloway, appellant's mere failure
to "assert[] [an] ownership [interest] does not necessarily
constitute abandonment." 9 Va. App. at 18-19, 384 S.E.2d at
103. Thus, absent additional evidence of abandonment--such as
appellant's disclaiming ownership, see, e.g. id. at 18, 384
S.E.2d at 103 (noting that "a disclaimer of ownership, although
a strong indication of such a relinquishment, is not
conclusive"); discarding the object, see, e.g., Thomas, 609
N.Y.S.2d at 615; or voluntarily departing from a public place
where the object remains, see, e.g., Wechsler, 20 Va. App. at
173, 455 S.E.2d at 749 (holding accused abandoned luggage when,
inter alia, he left it on airport baggage carousel, departed
terminal building and attempted to enter cab)--the record
contains insufficient evidence to support the Commonwealth's
alternative contention regarding abandonment.
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Next, we reject the Commonwealth's contention that the
search of the soup was justified because Officer Jones saw the
contraband contained in the cup of noodles in plain view. See,
e.g., Conway v. Commonwealth, 12 Va. App. 711, 718, 407 S.E.2d
310, 314 (1991) (en banc). Our affirmance of the trial court's
ruling on this ground is inappropriate not only because the
trial court made no factual findings on this issue but also
because the evidence, viewed in the light most favorable to the
Commonwealth, establishes that Officer Jones saw nothing unusual
in the cup of noodles until he stirred its contents. Only after
he stirred the contents did he see the plastic baggies
containing rocks of crack cocaine. See Arizona v. Hicks, 480
U.S. 321, 326, 107 S. Ct. 1149, 1153, 94 L. Ed. 2d 347 (1987)
(holding that stolen stereo not property seized under plain view
doctrine because officers had to move stereo to see serial
numbers which allowed them to conclude item was stolen). Thus,
we hold as a matter of law that the plain view exception to the
warrant requirement does not apply.
Finally, we reject the Commonwealth's contention that we
may affirm the trial court's denial of the suppression motion
because Officer Jones' search of the cup was justified by the
existence of probable cause to arrest. On appeal, the
Commonwealth argues that probable cause existed to arrest
appellant for (1) possession of illegal drugs, based on the
"concert of action between [appellant] and the other juveniles
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and the discovery of the gun on one of [appellant's] companions"
and (2) truancy. Regarding probable cause to arrest for illegal
possession, the record contains insufficient evidence to link
appellant to either the single "rock" or the other two juveniles
who may have discarded that rock. Officer Jones said only that
he found the rock in the same area where the other two juveniles
stood in the store. Assuming that this statement provided
probable cause to arrest the other two juveniles for possession
of the rock, no evidence indicated that appellant had any
connection to those juveniles other than that he was in
proximity to them while standing outside the convenience store
as the police approached and that all three juveniles ran into
the store when the police arrived.
As to the existence of probable cause to arrest appellant
for truancy, the Commonwealth advanced this argument in the
trial court, but the record contains insufficient evidence to
establish that the police had probable cause for a truancy
arrest at the time Officer Jones searched the cup.
[P]robable cause exists when the facts and
circumstances within the officer's
knowledge, and of which he has reasonably
trustworthy information, alone are
sufficient to warrant a person of reasonable
caution to believe that an offense has been
or is being committed. In order to
ascertain whether probable cause exists,
courts will focus upon "what the totality of
the circumstances meant to police officer
trained in analyzing the observed conduct
for purposes of crime control."
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Taylor v. Commonwealth, 222 Va. 816, 820-21, 284 S.E.2d 833, 836
(1981) (quoting Hollis v. Commonwealth, 216 Va. 874, 877, 223
S.E.2d 887, 889 (1976)) (citations omitted).
Here, the record established only that, at the time Officer
Jones seized and searched appellant's cup, Jones knew that
school was in session and that appellant did not look "old
enough [to Jones] not to be in school." Although appellant
looked "scared" and "worried" when Officer Jones approached him,
he told Officer Jones he was nineteen years old. Officer Jones
testified that "[appellant] did not look 19 to [him]," but he
did not articulate his specific basis for this belief. Officer
Jones testified that he and Officer Gadson were continuing to
try to "find out [appellant's] age and who he was" and that they
had not arrested him at that time. Although the record
indicates that appellant gave Officer Jones a false name, it
does not establish whether this occurred before or after Officer
Jones searched appellant's cup. Thus, the totality of the
circumstances does not support a finding that, at the time of
the search, Officer Jones had knowledge of sufficient "facts and
circumstances . . . to warrant a person of reasonable caution to
believe that [appellant was truant]." Compare People v.
Humberto O., 95 Cal. Rptr. 2d 248, 251 (Cal. Ct. App. 2000)
(holding that police had reasonable suspicion to detain
defendant for truancy because he was "youthful-looking," was
carrying a backpack and was spotted several miles from school
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during school hours and that police developed probable cause for
arrest when defendant confirmed that he attended school, failed
to provide an excuse for his absence, and gave the officers
identification belonging to someone else). The information
within the officers' knowledge provided them, at most, with
reasonable suspicion to attempt to further investigate
appellant's age and identity. But see Berkemer v. McCarty, 468
U.S. 420, 439-40, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317 (1984)
(noting that Terry stop permits "the officer [to] ask the
detainee a moderate number of questions to determine his
identity and to try to obtain information confirming or
dispelling the officer's suspicions" but that "the detainee is
not obliged to respond" and that "unless the detainee's answers
provide the officer with probable cause to arrest him, he must
then be released" (footnote omitted)).
For these reasons, we hold the evidence failed to prove
appellant abandoned the cup and its contents. We also hold that
the search was not supported by either the plain view exception
to the warrant requirement or the existence of probable cause to
arrest appellant for truancy. Because no evidence other than
the illegally seized cocaine supported appellant's conviction,
we reverse the conviction and dismiss the charge.
Reversed and dismissed.
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