Johnson v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia

BARRY THOMAS JOHNSON
OPINION BY
v. Record No. 1791-96-1 JUDGE JOSEPH E. BAKER
FEBRUARY 24, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ACCOMACK COUNTY
Glen A. Tyler, Judge
Jon C. Poulson for appellant.

John K. Byrum, Jr., Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.

Barry Thomas Johnson (appellant) was convicted in a bench

trial in the Accomack County Circuit Court for "failure to tag

striped bass after bringing to shore" in violation of Code

§ 28.2-201 and Virginia Regulation XXX-XX-XXXX. 1 On appeal, he

contends the trial court erroneously denied his motion to

suppress evidence seized during a warrantless search of his

business premises. The Commonwealth contends the administrative

search exception to the warrant requirement validated the search

or, alternatively, that appellant had no reasonable expectation

of privacy in the area searched. We conclude that the

Commonwealth waived its right to assert the administrative search

exception as a basis for the search when it conceded in the trial

1
This regulation, originally codified at 4 VAC 20-251-10,
has been renumbered, and an amended version may be found at 4 VAC
20-252-10.
court that the exception did not apply, and we hold that the

search violated the Fourth Amendment. For the reasons set forth

more fully below, we reverse appellant's conviction.

Background

At about 10:30 a.m. on January 30, 1996, Officer Judith

Mackley of the Virginia Marine Resources Commission (VMRC)

entered onto the Onancock fish house property, co-leased by

appellant, in order to "conduct an inspection of seafood." She

did not have a search warrant.
The fish house property is comprised of (1) a warehouse

building, approximately "180 foot square," with a small office in

the southwest corner and (2) a dock adjacent to the Onancock

Creek on the west. The property is bounded on the north and west

by the Onancock Creek. A right-of-way leading due south from the

southeast corner of the warehouse property connects it to King

Street, a public thoroughfare. The property to the south of the

warehouse and west of the right-of-way is the Walker Gravel

Company.

On January 30, 1996, the entrance to the gravel company

property bore three signs: a "POSTED private property" sign on

the building to the left of the entrance; a "PRIVATE PROPERTY NO

TRESPASSING" sign hanging from a chain across an opening in the

fence which served as the entrance; and a "NO TRESPASSING" sign

on the fence to the right of the entrance. However, the chain

was down in order to permit entry during Walker's business hours.

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Appellant and his co-lessees had permission to use the Walker

property.

Mackley parked on the gravel company lot on the south side

and walked onto the fish house property through an opening in the

fence and toward "NO TRESPASSING" and "DANGER KEEP OUT" signs

posted on the south side of the warehouse. Mackley understood

that the signs meant "[y]ou cannot go onto that property or

ground," but she nevertheless proceeded past the signs and the

entrance to the office and walked down the dock on the west side

of the building. The weather was cold and drizzly, and all doors

on the south side of the building were closed.
After walking approximately seventy feet down the dock,

Mackley saw about thirty untagged striped bass below the gunnel

on the deck of appellant's boat, the Lady Bea, which was moored

to the dock. Mackley walked further, looked through an open

ten-by-ten-foot door on the right, and saw appellant's mate weigh

an untagged striped bass and drop it into an iced seafood box. A

conveyor belt moved the fish from the boat through the open door

into the warehouse's packing area. The fish could not have been

"offloaded . . . without the door being open."

Appellant, who was in the office, saw Mackley walk past the

office window toward the dock packing area, and he proceeded to

the packing area, as well. When he rounded the corner, Mackley

pointed to the fish in the open box, and appellant confirmed that

they were his. He also confirmed that the fish on his boat were

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his. Appellant "immediately" asked, "When are you supposed to

tag them?" Mackley replied, "[Y]ou're supposed to tag them as

soon as you capture them and certainly by the time you get to

shore." Appellant responded, "Nobody tells me nothing. I didn't

know that you were supposed to tag them." Mackley then walked

through the open warehouse door, put her hands on eleven closed

seafood boxes sitting on a pallet and asked appellant if they

were his. When he responded affirmatively, she removed the lids

and discovered additional untagged striped bass. She seized all

the untagged fish. Mackley agreed that she had seen nothing

illegal on appellant's boat or inside the warehouse until she had

entered the property and walked down the dock.
The evidence showed that appellant and five other men,

including James Stalgaitis and Sam Swift, leased the warehouse

and property jointly and had done so for about ten years. The

men were all watermen, working separately, who used the property

to store equipment, dock their boats and pack fish for wholesale,

not retail, sale. They all used the whole premises, which

included a cooler and an ice machine, and did not have separate

storage areas. The property had been posted for the duration of

their lease. It was not open to the general public, and entry

was by invitation only. Each co-lessee had a key to the premises

and the right to exclude others subject to the majority rule.

The building was poorly lit, and two of the lessees testified

that when the door facing King Street or the door facing Onancock

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Creek was open, "It's a dark place." "All you will see [from the

street or the creek] . . . is a black hole. You can't see

through the building" and "would [not] really know what was

there."

Appellant offered evidence that the last waterman to return

each evening was responsible for securing the warehouse premises.

The Commonwealth presented evidence that the local police had

found the darkened warehouse open and apparently untended on

fifteen to twenty occasions during the year prior to trial. On

cross-examination, the police officer admitted that he did not

actually search the premises and did not know whether any of the

watermen were still on the way to shore in their boats.
In the year prior to January 30, 1996, Mackley had been on

the fish house property nine times to conduct seafood inspections

and to check the condemned area of the adjacent Onancock Creek.

On none of those occasions did she announce that she was coming

or ask for permission to be on the property. On one occasion

during August of 1995, Stalgaitis found Mackley on appellant's

boat, which was moored at the warehouse dock, when appellant was

not on the premises. She was "looking in the fish box."

Stalgaitis told her, "[T]his is private property. . . . The boat

is private and you really don't have the authority to do this."

Mackley responded that she had the authority and that appellant

had given her permission.

Mackley testified that she did not remember the conversation

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very well, but confirmed that a conversation took place while she

was on appellant's boat and that she told Stalgaitis she had "the

right to make an inspection." She indicated that she had boarded

the boat "when [appellant] was there" and that she might have

asked for his consent. She did not believe that Stalgaitis told

her the dock and the boat were private property, but said that

"[h]e might have." She conceded that other than the August 1995

incident when appellant may have given her permission to search,

neither appellant nor any of his co-lessees had given her

permission to come onto the property.
In addition to Mackley, other VMRC officials visited the

warehouse property for various purposes, including posting

notices and conducting inspections. Other than Stalgaitis'

August 1995 encounter with Mackley, the watermen did not

challenge the authority of the VMRC officers to be on the

premises, but none gave them blanket permission to be on the

premises. Some of the officers routinely came to the office

first to ask permission to visit the rest of the property, and

some did not. All wore uniforms, badges, and guns. Appellant

and his co-lessees did not know the nature or scope of VMRC

authority to come onto their property. Officer Landon admitted

that a person refusing or interfering with an inspection could be

charged for that offense.

Appellant admitted that as of January 30, 1996, he was not

certain whether their lease covered the dock area. He admitted

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that it was not unusual for people other than wholesalers to come

to the property, but indicated that he would ask what they

wanted.

At the request of the trial court, appellant and the

Commonwealth's attorney reviewed case law relating to the

administrative search exception to the warrant requirement, and

both represented to the trial court that the exception did not

apply in this case. Based on the parties' representations and

its own review of the relevant legal principles, the trial court

held that the VMRC had no administrative authority to conduct a

warrantless inspection or search of the premises for untagged

striped bass. However, it held that appellant had no subjective

expectation of privacy in the dock and warehouse because he and

his co-lessees allowed other people, including VMRC officials, on

the property for a variety of reasons and that the untagged fish

were in plain view of both those on the property and those on the

navigable waters of Onancock Creek. It noted that when appellant

left the fish in plain view of his co-lessees, he showed that he

had no legitimate expectation of privacy in them.
The trial court appeared to conclude that the viewing of the

warehouse was a "search," but held that it was reasonable under

the circumstances: "Once the officer observed the [untagged fish

in the boat], she then could legitimately look to her right,

through the open door and see the fish on the scale," and exigent

circumstances permitted her to investigate because the fish were

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being boxed for imminent removal. Ultimately, it held that the
fish in the boat would be sufficient for the
Commonwealth to prevail in its
prosecution. . . . Were it not for the fact
that defendant's boat lay, though moored
ashore, in public waters laden with untagged
striped bass for all to see, including the
other tenant present at the time, this case
may have been different.

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 Reasonableness of the Search Under the Fourth Amendment

In reviewing a trial court's denial of a motion to suppress,

"[t]he burden is upon [appellant] to show that this ruling, when

the evidence is considered most favorably to the Commonwealth,

constituted reversible error." Fore v. Commonwealth, 220 Va.

1007, 1010, 265 S.E.2d 729, 731 (1980). "Ultimate questions of

reasonable suspicion and probable cause to make a warrantless

search" involve issues of both law and fact and are reviewed de
novo on appeal. See Ornelas v. United States, 116 S. Ct. 1657,

1659 (1996). "In 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 v. Commonwealth, 25 Va.

App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing

Ornelas, 116 S. Ct. at 1663).

The Fourth Amendment to the United States Constitution

protects "[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable

searches and seizures." U.S. Const. amend. IV. These

protections apply to people, not places, see Katz v. United
States, 389 U.S. 347, 351 (1967), and may, therefore, extend to

commercial premises as well as private residences. See Dow Chem.

Co. v. United States, 476 U.S. 227, 235 (1986). "The

businessman, like the occupant of a residence, has a

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constitutional right to go about his business free from

unreasonable official entries upon his private commercial

property." See v. City of Seattle, 387 U.S. 541, 543 (1967).

Therefore, the Fourth Amendment prohibits warrantless intrusions

into non-public areas of a business unless a recognized exception

to the warrant requirement is established. See Marshall v.

Barlow's, Inc., 436 U.S. 307, 312-13 (1978).

The United States Supreme Court has recognized an exception

to the warrant requirement "where commercial premises of 'closely

regulated industries' are searched." Commonwealth v. Burgan, 19

Va. App. 172, 175, 450 S.E.2d 177, 178 (1994) (citing New York v.

Burger, 482 U.S. 691, 699-700 (1987)). An administrative search

may be conducted without a warrant if the search satisfies three

criteria:
First, "there must be a 'substantial'
government interest that informs the
regulatory scheme pursuant to which the
inspection is made." Second, "the
warrantless inspections must be 'necessary to
further [the] regulatory scheme.'" Third,
the inspection program must "provide a
constitutionally adequate substitute for a
warrant" by informing the owner that
inspections will occur regularly, and
notifying him or her of the permissible scope
and who may conduct the inspections, as well
as requiring that the permitted inspection is
"carefully limited in time, place, and
scope."

Id. at 175, 450 S.E.2d at 178-79 (citations omitted) (quoting

Burger, 482 U.S. at 702-03).

In this case, the Commonwealth's attorney conceded in the

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trial court that "there is no regulatory scheme under Burger"

that would permit application of the administrative search

exception to the warrant requirement. The trial court agreed.

Therefore, the Commonwealth is barred from asserting the

exception as a basis for affirmance on appeal. See, e.g., Manns

v. Commonwealth, 13 Va. App. 677, 679-80, 414 S.E.2d 613, 615

(1992) (holding that a party, "having agreed upon the action

taken by the trial court, should not be allowed to assume an

inconsistent position") (quoting Clark v. Commonwealth, 220 Va.
201, 214, 257 S.E.2d 784, 792 (1979)).

In the absence of application of the administrative search

exception to the warrant requirement, we must apply general

principles regarding searches of commercial premises. As a

general rule, "there is a lesser expectation of privacy in

commercial as contrasted with residential buildings." United

States v. Bute, 43 F.3d 531, 536 (10th Cir. 1994). However,

"classifying a building as 'commercial' is not dispositive as to

the level of privacy that attaches to such premises." Id. A

court must determine whether the individual maintains a

legitimate expectation of privacy in the object or premises to be

searched, which involves a two-part inquiry. See Wellford v.

Commonwealth, 227 Va. 297, 301, 315 S.E.2d 235, 237 (1984).

First, we must determine whether the individual has manifested "a

subjective expectation of privacy" in the object of the

challenged search. Id. This inquiry is a factual determination

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to which we must give deference on appeal. See United States v.

McBean, 861 F.2d 1570, 1573 (11th Cir. 1988). Second, we must

determine whether the expectation of privacy is objectively

reasonable, one that society is willing to recognize as

legitimate. See Wellford, 227 Va. at 301, 315 S.E.2d at 237.

This is a legal determination, requiring no deference on review.

See McBean, 861 F.2d at 1573 n.7.

The United States Supreme Court long has held that "[t]he

curtilage area immediately surrounding a private house" is "a

place where the occupants have a reasonable and legitimate

expectation of privacy that society is prepared to accept." Dow

Chem., 476 U.S. at 235 (citing California v. Ciraolo, 476 U.S.

207 (1986)). In contrast, "the Court has drawn a line as to what

expectations are reasonable in the open areas beyond the

curtilage of a dwelling: 'open fields do not provide the setting

for those intimate activities that the [Fourth] Amendment is

intended to shelter from governmental interference or

surveillance.'" Id. (quoting Oliver v. United States, 466 U.S.

170, 179 (1984)). An area "need be neither 'open' nor a 'field'

as those terms are used in common speech." Id. at 236 (quoting

Oliver, 466 U.S. at 180 n.11).

The United States Supreme Court applied the open fields

doctrine in Dow Chemical to permit aerial surveillance of the

open areas of a large industrial plant because those areas were

"open to the view and observation of persons in aircraft lawfully

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in the public airspace immediately above or sufficiently near the

area for the reach of cameras." Id. at 239. It expressly noted,

however, that the intrusion in this case occurred "without

physical entry." Id. at 237. It emphasized that "Dow's inner

manufacturing areas [were] elaborately secured to ensure that

they [were] not open or exposed to the public from the ground"

and that "[a]ny actual physical entry . . . into any enclosed

area would raise significantly different questions." Id. at

236-37; see also id. at 239 n.7. In so doing, the Court clearly

indicated that the vantage point of the official is a critical

component of the analysis; what is an "open field" from the air

may be a protected business curtilage if observed from inside the

curtilage on the ground. "[T]he legality of the search is

contingent on the police having a right [under the Fourth

Amendment] to be where they were when they discovered the item."

United States v. Swart, 679 F.2d 698, 701 (7th Cir. 1982).

In evaluating whether an area is more like an open field or

a protected curtilage, courts examine a variety of factors to

determine whether an expectation of privacy in the place is
2
subjectively and objectively reasonable. One factor is whether

the accused "could reasonably assert control or supervision over,

or exclude others from access to, the place." United States v.

Nuesca, 945 F.2d 254, 259 (9th Cir. 1991); see Oliver, 466 U.S.
2
The United States Supreme Court has not expressly addressed
the existence of commercial, as opposed to residential,
curtilage. See Dow Chem., 476 U.S. at 239 n.7.

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at 183 ("[T]hat [an] intrusion is a trespass at common law" is

not dispositive, for "[t]he existence of a property right is but

one element in determining whether expectations of privacy are

legitimate."); see also McCoy v. Commonwealth, 2 Va. App. 309,

311-12, 343 S.E.2d 383, 385 (1986). A proprietor who "has made a

general public invitation to enter the premises" has "a lesser

expectation of privacy than in a commercial building that is not

open to the public, such as a warehouse." Bute, 43 F.3d at 537

(emphasis added). Evidence that some or all of a commercial

building or premises is closed to the public includes the posting

of signs and erection of barricades. See United States v. Hall,

47 F.3d 1091, 1096 (11th Cir. 1995). Other factors include the

proximity of the claimed curtilage to the protected premises,

whether the claimed curtilage is inside an enclosure surrounding

the protected premises, and the nature of the uses to which the

claimed curtilage is put. See United States v. Dunn, 480 U.S.

294, 301 (1987).

In this case, the uncontroverted evidence showed that

Mackley discovered the untagged striped bass while standing where

she did not have a lawful right to be and where appellant had an

objectively and subjectively reasonable expectation of privacy.

The evidence showed that the warehouse and adjacent dock were

private property not open to the public and were posted with "No

Trespassing" signs. Offloading the catch across the dock and

through the open warehouse door on a conveyor belt was an

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integral part of appellant's business.

In addition, those purchasing seafood from appellant and his

co-lessees did so on a wholesale, not retail, basis and visited

the premises by invitation only. As found by the trial court,

people other than wholesalers or law enforcement officers came to

the property by permission only, and appellant testified that he

would ask each such visitor his purpose in visiting. In

addition, the record contains no indication that these wholesale

purchasers or other guests ever visited the dock area.

"[G]overnment agents cannot attempt to justify a warrantless

search on the claim of a reduced expectation of privacy on

business premises when the agents do not see the items as a

customer would ordinarily see them." Swart, 679 F.2d at 701

(citing Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329 (1979)).

Finally, that appellant's co-lessees also had access to the

premises did not lessen appellant's expectation of privacy from

"guests" whose presence was neither invited nor consented to by

appellant or his co-lessees. See Commonwealth v. Ealy, 12 Va.

App. 744, 750-51, 407 S.E.2d 681, 685-86 (1991) (holding that

accused had legitimate expectation of privacy in detached garage

owned by his mother where "he had permission to be there, he

possessed the combination to the lock on the door, he stored

personal items in the garage, and he took steps to keep the

public out of the garage when he or his [two] brothers were not

present").

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 On the day at issue, appellant was using the dock

immediately adjacent to the warehouse to offload fish from his

boat onto a conveyor belt transporting the fish into the

warehouse. Although the dock itself was adjacent to the

navigable waters of the Onancock Creek, Mackley did not view the

untagged fish from the creek. Rather, she walked onto the fish

house property past a "NO TRESPASSING" sign and an occupied

business office and proceeded seventy feet down the dock on the

left side of the warehouse before seeing the fish. That others

may have been able to see the untagged fish in the boat or inside

the warehouse from the navigable waters of the Onancock Creek is

irrelevant to our analysis, for the record contains no

affirmative evidence that the fish actually were visible from

that location 3 or, more importantly, that Mackley actually viewed

them from the creek.

Therefore, Mackley's presence on the premises violated

appellant's Fourth Amendment rights unless Mackley had consent to

be there. "[W]here the validity of a search rests on consent,

the State has the burden of proving that the necessary consent

was obtained and that it was freely and voluntarily

3
Although the record indicates that some portion of the
creek adjacent to the dock was navigable, it also clearly
indicates that a portion had been condemned. Furthermore, the
record contains no evidence regarding the volume of traffic on
the navigable portion of the creek or whether VMRC officers ever
traveled on the creek. In fact, Mackley testified that she came
onto the fish house property, rather than the navigable portion
of the creek, to check the condemned portion.

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given . . . ." Florida v. Royer, 460 U.S. 491, 497 (1982)

(plurality op.); see Lowe v. Commonwealth, 218 Va. 670, 678, 239

S.E.2d 112, 117 (1977). That "burden . . . is not satisfied by

showing a mere submission to a claim of lawful authority."

Royer, 460 U.S. at 497. Where consent is based on implication,

the Commonwealth bears a heavy burden of proof. See Walls v.

Commonwealth, 2 Va. App. 639, 645, 347 S.E.2d 175, 178 (1986).

But see Grinton v. Commonwealth, 14 Va. App. 846, 851, 419 S.E.2d

860, 863 (1992) (holding that once initial consent to search has
been given, scope of search may be broadened "by passive

acquiescence"). Whether the consent was voluntary is a question

of fact to be determined in view of the totality of the

circumstances. See Ohio v. Robinette, 117 S. Ct. 417, 421

(1996). Probative factors include "knowledge of the right to

refuse consent," Schneckloth v. Bustamonte, 412 U.S. 218, 227

(1973), the level of business sophistication, see United States

v. O'Looney, 544 F.2d 385, 388 (9th Cir. 1976), and the display

of authority or show of force by the officer or officers

involved. See Reynolds v. Commonwealth, 9 Va. App. 430, 439-40,

388 S.E.2d 659, 665 (1990).

"A consensual search is reasonable if the search is within

the scope of the consent given." Grinton, 14 Va. App. at 850,

419 S.E.2d at 862; see Lugar v. Commonwealth, 214 Va. 609,

611-12, 202 S.E.2d 894, 897 (1974) (holding that consent to

search apartment for fugitive limited officers to "search of

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places . . . where a fugitive might hide"). That Mackley may

have had permission to be on the premises and to search

appellant's boat on a prior occasion, in August 1995, could not

reasonably be viewed as giving her the authority to be on the

premises on January 30, 1996. It was uncontested (1) that none

of the co-lessees had given Mackley or any other VMRC officer

blanket permission to come onto the property or to search the

premises, (2) that, on January 30, 1996, Mackley neither

announced her entry onto the property nor sought permission to

enter, and (3) that she had already traveled past the occupied

office and seventy feet down the dock, to the place from which

she saw the untagged bass in the boat and in the warehouse,

before appellant was able to catch up with her. Mackley, dressed

in uniform and carrying a firearm, behaved as if she had a legal

right to be on the property and never informed appellant or his

co-lessees that they had the right to deny her access to the

premises. The totality of the circumstances indicates that

Mackley lacked express consent for entry on the date at issue.

Contrary to the ruling of the trial court, we are unwilling to

hold that appellant forfeited his Fourth Amendment rights merely

because he failed to assert them against the VMRC officials on

prior occasions.
Because Officer Mackley lacked authority under the Fourth

Amendment to be on appellant's property on the day in question,

all evidence seized as a result of her presence should have been

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excluded, and the trial court erred in denying the motion to

suppress. Accordingly, we reverse appellant's conviction and

remand for further proceedings if the Commonwealth be so advised.

Reversed and remanded.

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