Woodson v. Commonwealth

                     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




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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.




                                   5
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



                                 6
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.



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