COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Frank and Humphreys
Argued at Richmond, Virginia
ANTOINE HARVEY SQUIRE
MEMORANDUM OPINION * BY
v. Record No. 2824-99-2 JUDGE RUDOLPH BUMGARDNER, III
OCTOBER 17, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Catherine C. Hammond, Judge
W. Edward Riley, IV (Boone, Beale, Cosby &
Long, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Antoine Harvey Squire appeals his conviction of possession
with intent to distribute marijuana and possession of marijuana
after having been convicted of a similar offense in violation of
Code §§ 18.2-248.1 and -250.1. 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
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
de novo the ultimate questions of reasonable suspicion and
probable cause, but we "review findings of historical fact only
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 owned by the defendant for
playing loud music. Daitrone Hargrove drove, 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
Hargrove at his patrol car, two additional officers, Perkins and
Moore, arrived. Stromberg determined the licenses were valid
but also learned Hargrove was only 18 years old. Stromberg
returned to the driver's side of the van as Perkins went to the
defendant'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 the defendant if he "minded" if Stromberg
searched the van. The defendant replied, "No," but Stromberg
was unsure whether the defendant was consenting. He asked
another question, whether he could use a drug dog. To this the
defendant 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
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face forward, Perkins announced that he saw an open beer in the
vehicle.
Stromberg had Hargrove step out of the van. As he did,
Stromberg smelled alcohol on Hargrove's breath and saw a
Michelob bottle cap on the floorboard where his feet had been.
Hargrove 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. Later, the defendant admitted
the backpack was his.
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 Hargrove 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 Hargrove
stepped out of the car, Stromberg smelled alcohol on his breath,
and Hargrove admitted drinking. That additional information
provided probable cause to arrest Hargrove for driving under the
influence or driving after consuming alcohol. "[A]n
individual's expectation of privacy in a vehicle and its
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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contents may not survive if probable cause is given to believe
that the vehicle" contains contraband. Ross, 456 U.S. at 823.
The officers did not enter the van until Stromberg
determined Hargrove 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 the defendant denied owning it or
having any knowledge of it, he 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. Accordingly, we affirm the convictions.
Affirmed.
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