Arnold v. Com.

• Decision Date: 23 November 1993
• Docket Number: No. 1316-92-4,1316-92-4
• Citation: 437 S.E.2d 235,17 Va.App. 313
• Parties: Joseph Patrick ARNOLD v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 235

437 S.E.2d 235

17 Va.App. 313

Joseph Patrick ARNOLD v. COMMONWEALTH of Virginia.

Record No. 1316-92-4.

Court of Appeals of Virginia.

Nov. 23, 1993.

Kevin T. Gaynor, Asst. Public Defender, for appellant.

Virginia B. Theisen, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., on brief), for appellee.

Present: MOON, C.J., ELDER, J., and DUFF, ^* Senior Judge.

ELDER, Judge.

Joseph Patrick Arnold appeals from his conviction for receiving stolen property in violation of Code § 18.2-108. This stolen property was discovered in his possession when a car in which he was a passenger was stopped for failure to display proper license tags. On appeal, he argues (1) that he had standing to object to the search of the vehicle and shopping bag, and (2) that the trial court erred in concluding that the search of the shopping bag was a valid inventory search rather than a pretext for an investigatory search, thereby denying his motion to suppress. For the reasons set forth below, we affirm appellant's conviction.

On April 25, 1992, Officer Craig stopped the car in which appellant and two others were traveling because the car displayed no rear license tags. At Craig's request, the driver produced a rental agreement which showed that the car had been rented the previous day in Georgia, but he produced no driver's license, stating that his license had expired. Although Craig requested it, the passengers produced no identification. Craig also testified that the two people who had signed the rental agreement were not in the car, but he did not explain how he arrived at this conclusion. The record contains no affirmative evidence that appellant and the other occupants unlawfully possessed the car. Craig testified that, based on the information available to him at that time, he decided to arrest the driver and impound the vehicle because it was obstructing traffic and neither of the car's passengers had produced a driver's license entitling him to move the car to another location.

Craig then asked the driver if the car contained any contraband, drugs, or stolen property. The driver responded that Craig would have to ask appellant. Appellant said Craig would have to ask the driver. During that time, while checking the car's vehicle identification number, Craig noticed a plastic Hecht's shopping bag in the rear passenger seat next to appellant. Based on the manner in which the bag was folded and his experience in retail security, Craig concluded that the bag might be lined with foil, a method used by shoplifters to disable the anti-theft tags commonly placed on clothing. Craig testified that, in his experience, "a plastic ... bag," after being folded down or rolled up, "will tend to open back up on its own." If a bag is foil-lined, by contrast, "it's as if you fold up a piece of foil, tin foil, into a roll, it stays that way. It ... keeps its rigidity. It doesn't open back up." Craig also knew that possession of such a device is a class 3 misdemeanor in Virginia. Craig then touched the bag, which "felt like it was lined with some type of rigid material." Upon searching the bag, Craig found that it contained six dresses still on the hangers with security tags on them. During the subsequent inventory search, Craig found other stolen items and related paraphernalia in the vehicle. Although Craig asserted that the search at the scene was an inventory search, he admitted that he did not actually prepare a written inventory at the scene. Craig learned later that the vehicle's license tags were valid under Georgia law.

Based on Officer Craig's testimony (neither of the defendants testified), the trial court concluded that the search was proper as an inventory search. The Commonwealth never challenged the motion based on lack of standing, and the trial court did not discuss standing in ruling on the motion. Appellant then entered a plea of guilty conditioned on the preservation of his right to appeal the denial of the motion to suppress. Neither the parties nor the court specifically addressed the issue of standing at the trial level.

I.

We consider first whether appellant had standing to contest the search of the vehicle and shopping bag. This Court has not had occasion to consider this precise issue before. In Josephs v. Commonwealth, 10 Va.App. 87, 91-98, 390 S.E.2d 491, 493-97 (1990) (en banc), and McCoy v. Commonwealth, 2 Va.App. 309, 311, 343 S.E.2d 383, 385 (1986), we discussed some of the overriding legal principles, noting that "[t]he test is whether the appellant 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, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978)). Under that test, we concluded in Josephs that a passenger in a stolen vehicle, whose presence was unlawful, had no legitimate expectation of privacy and therefore lacked standing to contest the stop of the vehicle. 10 Va.App. at 98, 390 S.E.2d at 497. Central to the discussion and holding in Josephs was that the car was stolen, and the Court implied that the result might have been different if "the defendant had permission of the owner to be in the vehicle as a passenger." Id. at 96, 390 S.E.2d at 495-96. In this case, by contrast, the Commonwealth does not contend that the possession of the automobile was unlawful or that appellant was not lawfully present in it.

We conclude that appellant had a reasonable expectation of privacy in the shopping bag located at his feet and, therefore, under the test enunciated above, had standing to contest Officer Craig's search of the bag. Contrary to the Commonwealth's assertions, the Supreme Court's holding in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), does not compel a different result. In Rakas, the question was "a narrow one: Did the search of their friend's automobile after they had left it violate any Fourth Amendment right of the petitioners?" Id. at 151, 99 S.Ct. at 434 (Powell, J., concurring), cited with approval in 4 Wayne R. LaFave, Search and Seizure § 11.3(e), at 324 (2d ed. 1987). In addition, in Rakas, the defendants asserted no interest in the property seized. 439 U.S. at 129, 99 S.Ct. at 423.

In this case, by contrast, appellant was present in the car at the time of the search, and the bag was clearly within his reach. The issue here is not so much appellant's legitimate expectation of privacy in the vehicle itself as it is in the closed shopping bag and its contents. See LaFave, supra, § 11.3(e), at 331. This is precisely the issue addressed by the Court of Appeals for the Ninth Circuit in United States v. Salazar, 805 F.2d 1394 (9th Cir.1986). The Court held in that case that a passenger lawfully present in a vehicle had standing to contest the search of a closed shopping bag found on the floor at his feet. Id. at 1396. This was so, said the Court, because "[the defendant] demonstrate[d] a[n] [objectively] justifiable expectation of privacy" in the closed container ¹ and "one that society is 'prepared to recognize as legitimate.' " Id. (quoting Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984)) (other citations omitted); see also Massachusetts v. King, 389 Mass. 233, 449 N.E.2d 1217, 1222-23 (1983).

Although the Commonwealth cites United States v. Hargrove, 647 F.2d 411, 412 (4th Cir.1981), for the proposition that "[a] person who cannot assert a legitimate claim to a vehicle cannot reasonably expect that the vehicle is a private repository for his personal effects, whether or not they are enclosed in some sort of a container, such as a paper bag," it takes that statement out of context. In Hargrove, the police had a warrant for the defendant's arrest, and the evidence showed that he was driving a stolen car and disclaimed ownership of the bag. Id. Because the vehicle was stolen, the Court concluded that he had no legitimate expectation of privacy in either the vehicle or its contents, including the paper shopping bag. Id.

II.

Appellant contends that the trial court erred in denying his motion to suppress on the ground that the search of the shopping bag violated his fourth amendment rights. On appeal, the burden is on appellant to show, considering the evidence in the light most favorable to the Commonwealth, that the denial of the motion to suppress constituted reversible error. See Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017, 101 S.Ct. 579, 66 L.Ed.2d 477 (1980). The trial court held that the search was constitutionally permissible as an inventory search conducted pursuant to the valid impoundment of the vehicle. The Commonwealth argues alternatively that the search and seizure were also valid under the plain view exception to the warrant requirement. For the reasons set forth below, we conclude that the search was valid under the plain view exception and do not resolve the issue of the validity of the inventory search.

The officer's actions were supported by probable cause developed pursuant to the plain view exception to the warrant requirement. The theory of the plain view doctrine is that an individual has no reasonable expectation of privacy in items that are in plain view. Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301, 2306, 110 L.Ed.2d 112 (1990). In order to invoke this exception, an officer must meet two requirements: first, he must be lawfully in position to "perceive" a suspicious object, and second, he must have probable cause to believe it to be contraband. Ruffin v. Commonwealth, 13 Va.App. 206, 208-09, 409 S.E.2d 177, 179 (1991) (citations omitted). Officer Craig was lawfully present when he observed the bag, for he had stopped the vehicle for a possible license...