COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Frank and Humphreys
Argued at Richmond, Virginia
DAITRONE LAMAR HARGROVE
MEMORANDUM OPINION * BY
v. Record No. 3059-99-2 JUDGE RUDOLPH BUMGARDNER, III
OCTOBER 17, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Catherine C. Hammond, Judge
Matthew P. Geary (Goodwin, Sutton, DuVal &
Geary, P.L.C., on brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Daitrone Lamar Hargrove appeals his conviction of unlawful
possession of marijuana. He contends the police conducted an
unlawful search and the trial court erred in admitting the
evidence they seized. Concluding the search was lawful, we
affirm.
We view the evidence in the light most favorable to the
Commonwealth. See Fore v. Commonwealth, 220 Va. 1007, 1010, 265
S.E.2d 729, 731, cert. denied, 449 U.S. 1017 (1980). We review
de novo the ultimate questions of reasonable suspicion and
probable cause, but we "review findings of historical fact only
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
for clear error and . . . give due weight to inferences drawn
from those facts . . . ." Ornelas v. United States, 517 U.S.
690, 699 (1996).
Officer Stromberg stopped a van driven by the defendant for
playing loud music. The owner, Antoine Harvey Squire, sat in
the front passenger seat, and Frederick Martin sat on a bench
seat in the very back of the van. While Stromberg validated the
driver's licenses of the defendant and Squire at his patrol car,
two additional officers, Perkins and Moore, arrived. Stromberg
determined the licenses were valid but also learned the
defendant was only 18 years old. Stromberg returned to the
driver's side of the van as Perkins went to the passenger's
side. Stromberg issued a warning about playing loud music and
returned the driver's licenses.
Stromberg then explained that he was working to interdict
drugs and asked Squire, the owner, if he "minded" if Stromberg
searched the van. Squire replied, "No," but Stromberg was
unsure whether Squire was consenting. He asked another
question, whether he could use a drug dog. To this Squire
stated that he was in a hurry and asked why the officer was
harassing him. Simultaneously, Stromberg noticed Martin was
sitting side-saddle on the bench seat and asked offhandedly if
his seat belt was broken. As Martin shifted to face forward,
Perkins announced that he saw an open beer in the vehicle.
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Stromberg had the defendant step out of the van. As he
did, Stromberg smelled alcohol on the defendant's breath and saw
a Michelob bottle cap on the floorboard where his feet had been.
The defendant admitted he had been drinking. Stromberg asked
the other passengers to exit the vehicle. He then entered the
van and removed a twelve-bottle carton of Michelob beer that
contained nine bottles. Two bottles were open, and a third had
been opened but re-capped.
Near the beer container but under the bench seat, Stromberg
found a backpack. Its weight made him think that it might
contain beer, so he asked who owned the backpack. Each of the
three denied ownership or knowledge of the backpack. Stromberg
searched the backpack and arrested all three when he found a
large amount of marijuana in it. The officers found marijuana
in the defendant's sock, when they searched him incident to his
arrest. The defendant contends the marijuana was unlawfully
seized and inadmissible at his trial.
During the stop, which the defendant concedes was lawful,
the officers saw open containers of beer in a vehicle driven by
a driver under twenty-one. A warrantless search and seizure is
valid when it is "'made upon probable cause, that is, upon a
belief, reasonably arising out of circumstances known to the
seizing officer, that an automobile . . . contains that which by
law is subject to seizure and destruction . . . .'" United
States v. Ross, 456 U.S. 798, 805 (1982) (citation omitted).
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The officers observed open bottles of beer in plain view while
lawfully positioned to see them.
[I]n order for a seizure to be permissible
under the plain view doctrine, two
requirements must be met: "(a) the officer
must be lawfully in a position to view and
seize the item, [and] (b) it must be
immediately apparent to the officer that the
item is evidence of a crime, contraband, or
otherwise subject to seizure."
Conway v. Commonwealth, 12 Va. App. 711, 718, 407 S.E.2d 310,
314 (1991) (en banc) (quoting Stokes v. Commonwealth, 4 Va. App.
207, 209, 335 S.E.2d 611, 612 (1987)).
Upon seeing the open beer bottles, the officers had reason
to suspect the defendant was violating any number of criminal
statutes. 1 That permitted them to investigate further. See
Terry v. Ohio, 392 U.S. 1, 20-22 (1968). As soon as the
defendant stepped out of the car, Stromberg smelled alcohol on
the defendant's breath and the defendant admitted drinking.
That additional information provided probable cause to arrest
the defendant for driving under the influence or driving after
consuming alcohol. "[A]n individual's expectation of privacy in
a vehicle and its contents may not survive if probable cause is
1
For example:
Code § 18.2-266 Driving under the influence;
Code § 18.2-266.1 Any person under twenty-one
operating a motor vehicle after consuming alcohol;
Code § 18.2-323.1 Consuming an alcoholic beverage
while driving; or
Code § 4.1-305 Possession of alcoholic beverage by
person under twenty-one.
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given to believe that the vehicle" contains contraband. Ross,
465 U.S. at 823.
The officers did not enter the van until Stromberg
determined the defendant had been drinking, but with that
knowledge they were entitled to seize the beer from the van.
While doing so, Stromberg found the backpack, which he
reasonably believed contained alcohol. When asked, the
defendant denied owning it or having any knowledge of it. The
defendant abandoned the backpack and surrendered any expectation
of privacy in it. "'One who voluntarily abandons property
forfeits any expectation of privacy he or she may have in it'
and 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) (quoting Commonwealth v. Holloway, 9 Va.
App. 11, 18, 384 S.E.2d 99, 103 (1989)). "'If a person
relinquishes possession and disclaims ownership of personal
property, he or she surrenders any expectation of privacy in the
property.'" Id. (citations omitted).
The trial court did not err in determining that the
defendant lacked standing to challenge the search of the
backpack. Once the marijuana was found in the backpack, the
defendant was lawfully arrested. The marijuana found in his
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sock was discovered during the search incident to his lawful
arrest. Accordingly, we affirm the conviction.
Affirmed.
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