COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Willis and Senior Judge Hodges
Argued at Salem, Virginia
JOHNNY WAYNE WARREN
v. Record No. 0154-94-3 MEMORANDUM OPINION * BY
JUDGE LAWRENCE L. KOONTZ, JR.
COMMONWEALTH OF VIRGINIA MAY 2, 1995
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Joe Garrett (Garrett & Garrett, P.C, on brief), for
appellant.
Eugene Murphy, Assistant Attorney General (James S. Gilmore,
III, Attorney General; Leah A. Darron, Assistant Attorney
General, on brief), for appellee.
Johnny Wayne Warren (Warren) appeals his bench trial
conviction for possession of cocaine. Warren asserts that the
trial court erred in ruling that he lacked standing to challenge
the seizure of evidence during the execution of an invalid search
warrant at a home where he was a temporary guest. Warren further
asserts that the invalidity of the warrant resulted in an illegal
seizure of his person, requiring suppression of the evidence.
Warren also challenges the sufficiency of the evidence to support
his conviction. For the following reasons, we affirm Warren's
conviction.
We restate only those facts necessary to explain our
holding. Danville police, acting on information from a reliable
informant, sought and obtained a warrant to search for narcotics
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
in an apartment rented by George Scales. The supporting
affidavit, however, was ambiguous as to whether the warrant
sought was specific to Scales or the apartment generally.
During the execution of that warrant, officers observed
Warren, a guest at an on-going party in the apartment, toss away
a folded twenty dollar bill which he had held in his hand when
they entered the apartment. An officer recovered the bill and
discovered on the bill a white, powdery residue which analysis
showed to be cocaine.
Immediately prior to trial, Warren moved to suppress the
evidence on the ground that the search warrant was invalid.
While agreeing that the search warrant was invalid, the trial
court permitted the Commonwealth to proceed with its case on the
ground that Warren lacked standing to object to the validity of
the warrant.
Warren asserts that he had a reasonable expectation to
privacy in his person and possessions at the time of the
execution of the warrant and that this expectation was violated
by the illegal entry and search effected by the invalid warrant.
We disagree.
The Commonwealth does not challenge the trial court's
determination that the warrant was invalid. Thus, we will
assume, without deciding, that this ruling of the trial court was
correct. Nonetheless, in order for a defendant to object on
fourth amendment grounds to a search and seizure, he or she has
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the burden of showing that his or her own fourth amendment rights
were violated. Williams v. Commonwealth, 4 Va. App. 53, 70, 354
S.E.2d 79, 88 (1987); McCoy v. Commonwealth, 2 Va. App. 309, 311,
343 S.E.2d 383, 384 (1986). 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). See generally Katz
v. United States, 389 U.S. 347, 353 (1967).
Thus, before affording exclusionary rule protection to a
defendant, a trial court must determine whether, based on the
totality of the circumstances, the defendant "objectively had a
reasonable expectation of privacy at the time and place of the
disputed search." McCoy, 2 Va. App. at 311, 343 S.E.2d at 385.
The party asserting fourth amendment rights has the burden of
proving the government conducted an illegal search of a place
where that party had a legitimate expectation of privacy.
Rawlings v. Kentucky, 448 U.S. 98, 104 (1980). Some of the
factors 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. McCoy, 2
Va. App. at 312, 343 S.E.2d at 385; see also Barnes v.
Commonwealth, 234 Va. 130, 135, 360 S.E.2d 196, 200 (1987)
(defendant failed to meet his burden where he showed he had
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permission to be present in the place searched but did not have a
key, did not keep property there, and could not exclude others),
cert. denied, 484 U.S. 1036 (1988).
Here, the evidence shows that Warren was merely a transient
guest in the apartment. Although he frequently visited the
apartment, there was no evidence that he ever stayed overnight or
had access to the apartment other than by permission of the
lessee while he was also present. Accordingly, the trial court
did not err in ruling that Warren lacked standing to challenge
the validity of the search.
Warren further asserts that, because the police were
operating under an invalid search warrant, his detention within
the apartment was an illegal seizure and that the evidence
obtained during that seizure should have been suppressed. 1 We
will assume, without deciding, that the presence of multiple
police officers, some of whom blocked the principal paths of
egress from the apartment, and their display of weapons and
badges was sufficient to constitute a seizure of all the persons
inside the apartment.
On appeal, the burden is on the defendant to show that the
court's denial of a suppression motion based upon the illegal
1
The Commonwealth asserts that Warren raises this issue for
the first time on appeal and that it is therefore barred from our
consideration. Rule 5A:18. At trial, Warren asserted that he
had a reasonable expectation of privacy in his person. Although
it is unclear that this assertion was an attempt to challenge the
seizure of his person, we elect to consider the issue on its
merits.
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seizure of one's person, when considered in the light most
favorable to the Commonwealth, constituted reversible error. See
Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731,
cert. denied, 449 U.S. 1017 (1980). The fourth amendment does
not prohibit all seizures, only unreasonable ones. See Phillips
v. Commonwealth, 17 Va. App. 27, 30, 434 S.E.2d 918, 920 (1993).
Officers executing a search warrant for contraband may detain
the occupants of the premises to be searched while the search is
in progress. Michigan v. Summers, 452 U.S. 692, 705 (1981).
Although this act constitutes a seizure, it is reasonable because
its intrusiveness is limited and the exigencies of the
circumstances require it both to protect police and secure the
safe recovery of the evidence sought. Id.; see also Williams, 4
Va. App. at 67, 354 S.E.2d at 87.
Although we have assumed here that the trial court correctly
found that the warrant was not valid because of an error in the
supporting affidavit, nothing in the record suggests that the
officers were not acting under a good faith belief in the
validity of the warrant at the time it was executed. See United
States v. Leon, 468 U.S. 897, 918-21 (1984); Lanier v.
Commonwealth, 10 Va. App. 541, 547, 394 S.E.2d 495, 499 (1990).
Accordingly, the officers had the right to detain Warren and the
other guests during the execution of the warrant.
Furthermore, the police would have been permitted to conduct
a protective search of Warren under the circumstances. See
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Williams, 4 Va. App. at 66-67, 354 S.E.2d at 87. However, as
Warren discarded the bill before the officers had attempted such
a search, we are concerned only with the validity of the de facto
seizure caused by securing the residence. We hold that the
seizure was proper under Summers and, thus, did not require
suppression of the evidence discovered in the course of that
seizure.
Finally, Warren asserts that the evidence was insufficient
to prove that he exercised dominion and control over the bill and
residue or that he was aware of the character and nature of the
residue. We disagree. "On appeal, we review the evidence in the
light most favorable to the Commonwealth, granting to it all
reasonable inferences fairly deducible therefrom. The judgment
of a trial court sitting without a jury is entitled to the same
weight as a jury verdict and will not be set aside unless it
appears from the evidence that the judgment is plainly wrong or
without evidence to support it." Martin v. Commonwealth, 4 Va.
App. 438, 443, 358 S.E.2d 415, 418 (1987) (citing
Code § 8.01-680). Here, the evidence showed that Warren
voluntarily disposed of a valuable possession when confronted by
police. Although he denied knowledge and ownership of the bill,
the testimony of the officers established that the bill
discovered on the floor was the object Warren was seen discarding
moments before. Warren also inquired of one of the arresting
officers more than once concerning the penalty he might receive
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for possession of cocaine. From these facts, the trial judge
could reasonably infer that Warren was aware of the presence and
character of the cocaine residue and harbored a guilty conscience
as to his possession of it.
For these reasons, the judgment of the trial court is
affirmed.
Affirmed.
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