COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Frank
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 1706-01-1 JUDGE RICHARD S. BRAY
DECEMBER 20, 2001
KENNETH WASHINGTON
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Stephen R. McCullough, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellant.
Robert W. Lawrence for appellee.
Kenneth Washington (defendant) was indicted in the trial
court for felonious assault and battery of a police officer in
violation of Code § 18.2-57(C). 1 Contending the offense resulted
from an unconstitutional search and seizure, defendant
successfully moved the court to suppress "any and all statements,
acts or other conduct that may be the basis of the" indictment.
The Commonwealth appeals pursuant to Code § 19.2-398, arguing,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Defendant was convicted by a jury of the subject offense
in a prior trial. However, by unpublished opinion, a panel of
this Court reversed the decision and remanded the proceedings,
finding the trial court had erroneously refused to admit a
certain audio recording into evidence. See Washington v.
Commonwealth, No. 2157-99-1 (Va. Ct. App. Jan. 9, 2001).
inter alia, that defendant failed to establish the standing
necessary to challenge the search by police. We agree and reverse
the trial court.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
I.
Upon appellate review of a ruling on a motion to suppress
evidence, we consider the evidence in the light most favorable to
the prevailing party below, defendant in this instance, together
with all reasonable inferences fairly deducible from such
evidence. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407
S.E.2d 47, 48 (1991). The burden is upon the Commonwealth "to
show the trial judge's ruling . . . constituted reversible error."
Green v. Commonwealth, 27 Va. App. 646, 652, 500 S.E.2d 835, 838
(1998). We review the trial court's findings of historical fact
only for "clear error," but review de novo the court's application
of defined legal standards to the particular facts of a case. See
Shears v. Commonwealth, 23 Va. App. 394, 398, 477 S.E.2d 309, 311
(1996).
The sole evidence before us on appeal is the uncontroverted
testimony of Newport News Police Detective Best, and former
officer Holloway, witnesses presented by defendant at the
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suppression hearing. 2 Detective Best testified that, on January
12, 1998, a confidential informant reported that a "black male"
"six feet in height, approximately 200 to 210 pounds, medium brown
complexion, 27 to 30 years old, with a close haircut, . . . known
as Mickey, was selling cocaine from 1507 Ivy Avenue." Acting on
the tip, Best obtained a search warrant for the designated
premises and "a black male known as Mickey." 3
The following evening, at approximately 7:10 p.m., Best and
Holloway, accompanied by several additional police officers,
proceeded to the specified address, a residence located in the
City of Newport News. Holloway, dressed in "[k]haki corduroy
pants," "a green Philadelphia Eagles baseball style hat and a blue
and green windbreaker," knocked at the door, and defendant
responded, opening the door "18 inches or so." Although Holloway
did not recognize defendant, he inquired, "Hey, Mickey, what's
up?" Defendant was unresponsive and, after "a few seconds,"
Holloway "pushed open the door the rest of the way," announced
"Police. Search warrant," and entered the residence, followed by
"[t]he rest of the team," all "screaming, 'Police. Search
warrant. . . .'"
2
The transcript of the earlier prosecution is not a part of
the instant record and, notwithstanding defendant's repeated
references to facts perhaps developed in such proceeding, we are
confined to the record before us.
3
Defendant does not challenge the validity of the search
warrant.
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As Holloway entered into the home, he pushed defendant
"fifteen feet back" against "an entertainment center" and "pinned
[him] there, to ensure the safety of the rest of the team" and
prevent a "bottleneck at the entrance." "Once . . . against the
entertainment center," defendant "grabbed [Holloway's] weapon" and
a brief struggle ensued, resulting in the arrest of defendant for
the subject offense.
Defendant filed a pretrial motion to suppress "any and all
statements, acts or other conduct that may be the basis of the
assault and battery as the seizure and warrantless arrest of [his
person] was a violation of [the] Fourth Amendment." In support of
his related argument that police had "no authority . . . to grab
him and forcibly try to detain and handcuff him," defendant
expressly relied upon Michigan v. Summers, 452 U.S. 692 (1981),
and its progeny. At the conclusion of the suppression hearing,
the following exchange occurred between the court and counsel:
THE COURT: The only issue I am willing to
review at this point is whether or not what
I consider an illegal entry was made in the
detention of the defendant in this
case. . . .
[DEFENSE COUNSEL]: What about the arrest
issue, that it was an illegal arrest? How
much force can be used or what do you need
to have for him to be arrested? He wasn't
free to leave. They physically tried to
detain him without sufficient foundation.
The court then directed counsel to submit memoranda addressing the
question, promising "a decision prior to the trial date."
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As a threshold issue to the concerns expressed by the trial
court, the prosecutor contended on memo that "defendant did not
have standing to object to the execution of the search warrant."
In responsive correspondence to the court, defendant ignored the
"illegal entry" issue raised by the trial court and the related
challenge to standing. Instead, defendant continued to insist
"the seizure of [his person] went beyond the deminimus [sic]
detention necessitated [sic] to do a pat down or frisk" and
constituted an "attempted . . . illegal arrest in violation of the
Fourth Amendment."
The trial court subsequently granted the motion to suppress,
concluding "defendant's rights under the Fourth Amendment . . .
were violated . . . [when] police . . . failed to comply with the
knock and announce rule," again faulting the police entry and
ignoring defendant's seizure/arrest argument. The Commonwealth
appeals to this Court.
II.
As a threshold issue, the Commonwealth contends the record
fails to demonstrate standing in defendant to object to entry by
police upon the premises, a necessary predicate to support the
court's rationale. 4 We agree.
4
On appeal, defendant for the first time adopts the
reasoning of the trial court.
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Fourth Amendment protection can only be claimed by one who
"has 'a legitimate expectation of privacy' in the property
searched or seized." Wells v. Commonwealth, 6 Va. App. 541, 549,
371 S.E.2d 19, 23 (1988). Thus, "[i]n order to obtain protection
against unreasonable searches and seizures, [an accused] bears the
burden of proving that he has standing to assert the
constitutional right." McCoy v. Commonwealth, 2 Va. App. 309,
311, 343 S.E.2d 383, 384 (1986) (citation omitted).
"The test is whether the [defendant] objectively had a
reasonable expectation of privacy at the time and place of the
disputed search. In making the analysis the court looks to the
totality-of-the-circumstances." McCoy, 2 Va. App. at 311, 343
S.E.2d at 385 (citing Rawlings v. Kentucky, 448 U.S. 98, 104
(1980); Rakas v. Illinois, 439 U.S. 128, 143 (1978)). "[F]actors
courts may consider when determining whether a defendant had a
legitimate expectation of privacy in the place searched include
whether the defendant had a possessory interest in the place, had
the right to exclude others from the place, and took normal
precautions to maintain privacy in the place." Commonwealth v.
Ealy, 12 Va. App. 744, 751, 407 S.E.2d 681, 685 (1991) (citing
McCoy, 2 Va. App. at 312, 343 S.E.2d at 385).
The record presently before us is silent with respect to the
circumstances surrounding defendant's presence on the premises at
the time of the search. No evidence suggests a possessory
interest in the property, a right to exclude others from the
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premises, precautions taken by defendant to maintain privacy or
other factors relevant to an objective assessment of his related
expectations. Having thus failed to establish the requisite
standing, defendant may not avail himself of Fourth Amendment
protections against an unlawful entry onto the premises by police.
III.
In Michigan v. Summers, 452 U.S. 692 (1981), the Supreme
Court of the United States recognized that "a warrant to search
for contraband founded on probable cause implicitly carries with
it the limited authority to detain the occupants of the premises
while a proper search is conducted." Id. at 705 (footnote
omitted). Among various "legitimate law enforcement
interest[s]" in such detention, the Court noted the "importance
. . . [of] minimizing the risk of harm to the officers," noting
"the execution of a warrant to search for narcotics . . . may
give rise to sudden violence or frantic efforts to conceal or
destroy evidence," circumstances that require "unquestioned
command of the situation" to protect both police and occupants.
Id. at 702-03 (footnote omitted); Welshman v. Commonwealth, 28
Va. App. 20, 30, 502 S.E.2d 122, 127 (1998) (en banc); Allen v.
Commonwealth, 3 Va. App. 657, 661-62, 353 S.E.2d 162, 165 (1987).
Thus, the police, while executing the instant search warrant,
were permitted to briefly seize and detain defendant, physically
present in the residence during the search, to facilitate access
to the premises, permit a proper search and insure the safety of
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the officers and other occupants. When defendant struggled with
police incident to such lawful detention, his conduct gave rise to
probable cause for arrest. 5
Accordingly, we reverse the trial court and remand the case
for further proceedings in accordance with this opinion.
Reversed and remanded.
5
Our resolution of the suppression issue is not intended to
implicate the merits of either the prosecution or defense in the
underlying cause.
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