COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Fitzpatrick and Annunziata
Argued at Richmond, Virginia
KENDALL ORLANDO WOODSON
OPINION BY
v. Record No. 3040-96-2 JUDGE JOHANNA L. FITZPATRICK
OCTOBER 14, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Donald W. Lemons, Judge
Jonathan David (Joseph D. Morrissey;
Morrissey, Hershner & Jacobs, on brief), for
appellant.
Daniel J. Munroe, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Kendall Orlando Woodson (appellant) was found guilty in a
bench trial of possession of cocaine with intent to distribute in
violation of Code § 18.2-248. On appeal, he argues that the
trial court erred in: (1) finding he had no standing to assert a
Fourth Amendment violation; and (2) upholding a "no-knock" entry
and search. We find no error; therefore, we affirm the
conviction.
I. Background
On January 10, 1996, Richmond police officers executed a
search warrant on a subsidized apartment at 1406-A Jennie Scher
Road. The apartment was leased to appellant's sister, and only
she and her child were authorized to live there. Appellant was
inside the apartment at the time of the search even though the
apartment manager, Donna Pritt, had previously notified him by
certified mail that he was barred from the apartment complex.
Appellant had been arrested several times for trespass on the
premises, and he was convicted once. A certified copy of
appellant's trespass conviction, showing his status as barred
from the property, was admitted into evidence. Additionally,
Richmond Police Officer William Burnett testified that he told
appellant the day before the search that he was banned from the
property. Appellant testified that he lived at the apartment
with his sister; however, he admitted his name was not on the
lease, he paid no rent, and he knew he was not authorized to live
there.
Prior to the execution of the search warrant, the police
knew that appellant was in the apartment. The police had reports
from Ms. Pritt, a citizen informant, and from Robert Hershey, the
maintenance supervisor, that they had recently observed guns,
ammunition, and police scanners in the apartment. Officer
Burnett had personal knowledge of appellant's earlier arrest for
possession of a concealed weapon, possession of a stolen handgun,
assaulting a police officer, and that cocaine was being sold from
the apartment.
On July 12, 1996, a hearing was held on appellant's motion
to suppress. Appellant argued that the police violated his
Fourth Amendment rights by failing to knock and announce their
presence before entering the premises. The Commonwealth argued
that the police action was justified and that appellant lacked
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standing to assert a sufficient privacy interest to contest the
introduction of the evidence seized. At the conclusion of the
hearing, the trial court denied appellant's motion and found as
follows: "the officers had the exigent circumstances that
support a no-knock entry under the circumstances of this case,
given the totality of the circumstances." The court found that
the officers had reasonable belief that:
1. There were guns and ammunition in the
apartment;
2. There were police frequency scanners in
the apartment capable of intercepting police
communications;
3. Woodson was engaged in the sale of
cocaine from the apartment;
4. Woodson had previous arrests for cocaine
possession, firearms violations, carrying a
concealed weapon and assaulting a police
officer;
5. Woodson was a trespasser on the
premises.
Accordingly, the trial court concluded as follows:
The combination of drug distribution
activity, guns, ammunition, police scanners
capable of monitoring police activity and the
specific awareness of the defendant's prior
assault upon a police officer present exigent
circumstances that justify the "no knock"
execution of the search warrant in this case.
Additionally, the trial court found that the appellant "was a
trespasser on the premises, . . . consequently [he] cannot
maintain any reasonable privacy interest in the premises
sufficient to sustain his motion to suppress." Appellant was
convicted of possession of cocaine with the intent to distribute.
In reviewing the trial court's ruling on the motion to
3
suppress, we assess the evidence in the light most favorable to
the Commonwealth, the prevailing party below, and we will disturb
the trial court's decision only if it is plainly wrong. See
Spivey v. Commonwealth, 23 Va. App. 715, 721, 479 S.E.2d 543, 546
(1997). To prevail on appeal, appellant must demonstrate that
the court's denial of his motion constituted reversible error.
Id. (citations omitted).
Our consideration of the record includes evidence adduced at
both the trial and the suppression hearing. See id. While we
are bound to review de novo the ultimate questions of law, we
"review findings of historical fact only for clear error and
. . . give due weight to inferences drawn from those facts by
resident judges and local law enforcement officers." Ornelas v.
United States, 517 U.S. ___, ___, 116 S. Ct. 1657, 1663 (1996).
"An appeals court should give due weight to a trial court's
finding that the officer was credible and the inference was
reasonable." Id.
II. Standing
Appellant argues that he has standing to assert Fourth
Amendment rights in his sister's apartment because he was her
guest. We hold that appellant was not lawfully on the premises
and that, as a trespasser, he lacks the privacy interest
necessary to claim a Fourth Amendment violation.
An appellant has the burden of proving that he has standing
to allege a violation of his Fourth Amendment rights. McCoy v.
4
Commonwealth, 2 Va. App. 309, 311, 343 S.E.2d 383, 384 (1986).
"The test is whether the appellant objectively had a reasonable
expectation of privacy at the time and place of the disputed
search." Id. at 311, 343 S.E.2d at 385. In applying this test,
we must look at the totality of the circumstances. Id. In
Josephs v. Commonwealth, 10 Va. App. 87, 94-95, 390 S.E.2d 491,
495 (1990) (quoting United States v. Haydel, 649 F.2d 1152, 1155
(5th Cir. 1981), cert. denied, 455 U.S. 1022 (1982)), we held
that:
"[F]actors to be weighed include whether the
defendant has a possessory interest in the
thing seized or the place searched, whether
he has the right to exclude others from that
place, whether he has exhibited a subjective
expectation that it would remain free from
governmental invasion, whether he took normal
precautions to maintain his privacy and
whether he was legitimately on the premises."
Trespassers do not have privacy interests sufficient to
invoke Fourth Amendment protection. A defendant with "an
illegitimate, wrongful, and unreasonable expectation of privacy
in [a] stolen vehicle . . . lacks standing to object." Josephs,
10 Va. App. at 98, 390 S.E.2d at 497 (emphasis added). Other
state and federal courts have held that defendants may not
protest the search of a stolen vehicle. See, e.g., United States
v. Hensel, 672 F.2d 578 (6th Cir. 1982), cert. denied, 457 U.S.
1107 (1982); United States v. Hargrove, 647 F.2d 411
(4th Cir. 1981); State v. Schad, 633 P.2d 366 (Ariz. 1981), cert.
denied, 455 U.S. 983 (1982); State v. Abordo, 596 P.2d 773 (Haw.
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1979). In each of these cases, the defendant's illegal presence
in the location searched deprived him of an objectively
reasonable expectation of privacy.
This rationale has also been applied to defendants who are
wrongfully on real property and who thus have no reasonable
expectation of privacy and cannot protest a search. See United
States v. Ruckman, 806 F.2d 1471 (10th Cir. 1986) (defendant had
no reasonable expectation of privacy in a cave on federal land
when authorities could force him to leave at any time); Amezquita
v. Colon, 518 F.2d 8 (1st Cir. 1975), cert. denied, 424 U.S. 916
(1976) (Puerto Rican squatters' claim to a privacy interest in
Commonwealth land was "ludicrous" because they had twice been
asked to vacate the property); G.R. v. State, 638 P.2d 191
(Alaska Ct. App. 1981) (occupants of a cabin who were there
without the owner's consent had no expectation of privacy in the
building); State v. Cruz, 809 P.2d 1233 (Kan. App. 1991)
(trespassers in a home had no expectation of privacy in the
home); People v. Sumlin, 431 N.Y.S.2d 967 (N.Y. Sup. Ct. 1980)
(defendant was wrongfully in an abandoned city building at the
time of the search and could not protest); State v. Turnbill, 640
S.W.2d 40 (Tenn. Crim. App. 1982) (defendant, who had returned to
a rescue mission after being ejected, had no legitimate
expectation of privacy in the mission room); Douglas v. State,
695 S.W.2d 817, 820 (Tex. Ct. App. 1985) (burglar who hid in a
vacant building without permission was "a trespasser [who] had no
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reasonable expectation of privacy in the premises").
In this case, appellant was a trespasser who had no
objectively reasonable expectation of privacy in his sister's
apartment. He was not an authorized resident of the subsidized
apartment. He had been banned from the premises by both the
property manager and a court order. He had been convicted of
trespassing on the same premises. The day before the search, a
police officer told him that he was not allowed on the property.
Additionally, appellant admitted he had been living there
"illegally." Thus, he had no reasonable expectation of privacy,
objective or otherwise, in the apartment. Appellant has no
standing to claim the protection of the Fourth Amendment.
Appellant argues that while trespassers may not have
sufficient privacy interests to invoke the Fourth Amendment, he
was not a trespasser because he occupied the property with the
permission of a rightful possessor of the property. Appellant's
sister was a lawful occupant of the apartment who, he alleges,
could give valid consent for a search, and appellant claims that
as her guest he "can impute to himself the wrong done to her by
the illegal search."
We find no merit in this argument. While appellant's sister
may have given him permission to live in the apartment, the
permission of an occupant is only one factor to be considered
when determining whether appellant had an objectively reasonable
expectation of privacy. The record establishes that appellant
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was on notice that he was a trespasser and barred from the
premises. His experience with the apartment, including his
conviction for trespassing, and Officer Burnett's warning the day
before the execution of the search warrant, clearly outweighs the
fact that his sister allowed him to reside there illegally.
Consequently, under the facts of this case, we reject appellant's
argument that he had a reasonable expectation of privacy in the
premises searched, and we hold that the trial court properly
denied appellant's motion to suppress. 1
Affirmed.
1
Our holding on the standing issue renders moot appellant's
second contention that the police were required to knock and
announce their presence before entry. However, the record
clearly established the requisite exigent circumstances.
8