Atkins v. Commonwealth Of Va., Record No. 1864-09-1.

Citation57 Va.App. 2,698 S.E.2d 249
Decision Date31 August 2010
Docket NumberRecord No. 1864-09-1.
CourtCourt of Appeals of Virginia
PartiesKentora Delvontae ATKINSv.COMMONWEALTH of Virginia.

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Lenita J. Ellis, for appellant.

Susan M. Harris, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on briefs), for appellee.

Present: FRANK, KELSEY and POWELL, JJ.

FRANK, Judge.

Kentora Delvontae Atkins, appellant, was convicted, in a bench trial, of possession of heroin, in violation of Code § 18.2-250, possession of a firearm while in possession of heroin, in violation of Code § 18.2-308.4(B), and possession of a firearm by a convicted felon, in violation of Code § 18.2-308.2. On appeal, he contends the trial court erred in: 1) finding he had no standing to challenge the search of the automobile in which he was a passenger; 2) denying his motion to suppress the heroin and the gun; 3) finding the evidence sufficient to prove he possessed the firearm while simultaneously in possession of heroin; 4) denying his motion to dismiss the felony firearm indictment for containing a fatal variance; and 5) finding the evidence sufficient to prove possession of a firearm by a convicted felon. For the reasons stated, we affirm.

BACKGROUND

Special Agent P.N. Gallaccio of the Virginia State Police and Norfolk Police Officer W.K. Winningear, on September 3, 2008, stopped a vehicle for a defective equipment violation because the license plate bulb was burned out. While the stop was in progress, appellant, the right rear passenger, “turned around” several times and Gallaccio lost sight of appellant's head “as if he was bending over in the seat.”

After approaching the car, Gallaccio asked appellant for identification. Appellant stated that he had none. Gallaccio asked the front seat passenger for her identification, and she gave him a driver's license. Appellant then handed his license to Gallaccio. Gallaccio noticed that appellant did not appear nervous at that time. Gallaccio gave the licenses to Officer Winningear. It was then discovered that the front female passenger had outstanding warrants. For that reason, she was removed from the car. During this time, appellant was “constantly turning around and observing [the police] and [their] actions.”

While appellant was still in the car, Gallaccio watched him as he tried to light a cigarette. Gallaccio observed that appellant was having difficulty doing so because he was “shaking unbelievably in his seat.” Gallaccio testified, “in my 13 years of experience watching traffic stops, I'd never seen anybody struggle to light a cigarette as much as [appellant] did.”

Winningear returned appellant's license to him and asked the driver for consent to search the vehicle. The driver did not consent. The officers told the occupants they were going to screen the vehicle with a drug dog.2 At that point, the officers asked appellant and the driver to get out of the car.

After the driver got out of the vehicle, he and Officer Winningear engaged in a brief conversation before the driver abruptly retrieved his keys from the console and started the engine. In trying to keep the driver from leaving, Winningear struggled with the driver, and the driver fled. The driver was not apprehended that evening.

When appellant got out of the car, Gallaccio observed needle marks on appellant's arms. He also saw that appellant's hands were “balled up,” there was “tension in his arms,” and he appeared nervous. When asked why, appellant responded, “because cops around here beat people up for no reason.” Appellant then placed his hands in his pockets. Gallaccio advised him to take his hands out of his pockets and that he was going to pat him down for weapons. Appellant was instructed to walk to the back of the police vehicle, but he continued to walk past that vehicle. When he was passing another police vehicle, Special Agent Gallaccio grabbed him by the back of his shirt because he “thought something was afoot.” Gallaccio testified that he thought appellant was going to run. As Gallaccio grabbed him, appellant took his hands out of his pockets and dropped a white pill bottle that contained eleven capsules of heroin. After a brief struggle with appellant, Gallaccio placed appellant under arrest.

At the suppression hearing, Gallaccio testified without objection that he searched the vehicle “incident to arrest.” He also testified at trial that he searched the car because the driver ran, so the car was going to have to be towed and he was “inventorying the vehicle.”

Inside the car, the officers recovered one firearm from under the driver's seat. Another firearm was found in the back seat area under the right passenger seat. The barrel was facing forward “with the magazine port facing toward the right as if someone was sitting there and stuck it right there.” Gallaccio testified that he believed it would have been visible to someone sitting in the rear passenger seat. A DNA test was performed on the gun found in the back seat area, and no DNA was recovered.

This appeal follows.

ANALYSIS
Standing

Appellant argues that the trial court erred in ruling that he did not have standing to challenge the illegal search of the vehicle and the seizure of the weapons. As a result of the court's ruling, reasons appellant, the guns recovered from the car were erroneously admitted into evidence. The Commonwealth argues that the trial court properly found that Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), prevents appellant, as a passenger, from challenging the search of the vehicle.3

At oral argument, we asked counsel to file supplemental briefs to address the applicability of Rakas and Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007).

At the suppression hearing, the Commonwealth initially raised the argument that appellant, as a passenger, would not have standing to challenge the search of the vehicle pursuant to Rakas. Appellant agreed, stating that he has “very little standing to contest the search.” The trial court, citing Rakas, ruled that appellant, as a passenger, could not challenge the search and recovery of the firearms. Appellant responded, “yes, sir.” In a timely filed motion to vacate, appellant cited Brendlin and contended that contrary to the trial court's ruling, appellant does have standing to contest the search of the vehicle and the seizure of the weapon.

We agree with the trial court that Rakas controls. Rakas was a passenger in an automobile in which police found a box of rifle shells in a locked glove compartment and a sawed-off rifle under the front passenger seat. 439 U.S. at 130, 99 S.Ct. at 423-24. The Supreme Court rejected Rakas' argument that simply being a passenger in the vehicle afforded him standing to contest the search of the vehicle. Id. at 148, 99 S.Ct. at 432-33. Rakas neither owned nor leased the vehicle. Id. at 140, 99 S.Ct. at 428-29. Significantly, the Supreme Court found Rakas “asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized.” Id. at 148, 99 S.Ct. at 433. The Court then concluded:

Judged by the foregoing analysis, petitioners' claims must fail. They asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized. And as we have previously indicated, the fact that they were “legitimately on [the] premises” in the sense that they were in the car with the permission of its owner is not determinative of whether they had a legitimate expectation of privacy in the particular areas of the automobile searched.

* * * * * *

But here petitioners' claim is one which would fail even in an analogous situation in a dwelling place, since they made no showing that they had any legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they were merely passengers. Like the trunk of an automobile, these are areas in which a passenger
qua passenger simply would not normally have a legitimate expectation of privacy.

Id. at 148-49, 99 S.Ct. at 433 (citations omitted).

Appellant argues Brendlin supports his position. We find that his reliance is misplaced. Brendlin does not address a defendant passenger's right to contest the search of the vehicle Brendlin addresses only a passenger's challenge to the stop itself. The Supreme Court concluded a passenger may bring a Fourth Amendment challenge to the legality of a traffic stop because the passenger is seized as a result of the traffic stop. Brendlin, 551 U.S. at 255, 127 S.Ct. at 2405-06. The Court reasoned, “A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver, diverting both from the stream of traffic to the side of the road....” Id. at 257, 127 S.Ct. at 2407. The Court added,

If the likely wrongdoing is not the driving, the passenger will reasonably feel subject to suspicion owning to close association; but even when the wrongdoing is only bad driving, the passenger will expect to be subject to some scrutiny, and his attempt to leave the scene would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place.

Id. By its own language Brendlin does not address whether a passenger can challenge the legality of a search of the vehicle in which he is a passenger.

Appellant further cites Arizona v. Johnson, --- U.S. ----, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009), to support his contention. However Johnson simply reiterates the Brendlin ruling that [a] passenger therefore has standing to challenge a stop's constitutionality.” Johnson, 129 S.Ct. at 787.

Under Rakas, we begin our analysis by noting that appellant bears the burden of proving that he has standing to assert the constitutional right. Abell v. Commonwealth, 221 Va. 607, 614, 272 S.E.2d 204, 208 (1980). In keeping with Rakas, [t]he test is whether ...

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