Chesson v. Com.

• Decision Date: 23 April 1976
• Docket Number: No. 750639,750639
• Citation: 216 Va. 827,223 S.E.2d 923
• Parties: James Adolph CHESSON v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 923

223 S.E.2d 923

216 Va. 827

James Adolph CHESSON v. COMMONWEALTH of Virginia.

Record No. 750639.

Supreme Court of Virginia.

April 23, 1976.

Robert S. Ganey, Mechanicsville, for plaintiff in error.

Jerry P. Slonaker, Asst. Atty. Gen. (Andrew p. Miller, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

CARRICO, Justice.

This case involves the theft of a Walker coonhound. For the theft, the defendant, James Adolph Chesson, was convicted by a jury of larceny, ¹ and his punishment was fixed at three years in the penitentiary. To the final order imposing the sentence, we granted a writ of error to decide the question whether the defendant had standing to attack the validity of an alleged search of a kennel and the seizure therefrom of the dog following its theft.

Before trial, contending that the evidence relating to discovery and seizure of the dog was illegally obtained, the defendant moved to suppress the evidence. After a hearing, the motion was denied, and the evidence was later admitted at trial.

The record shows that on October 8, 1974, the dog was stolen from the home of E.C.C. Woods, III, in Hanover County. Later the same day, the defendant, a resident of Henrico County, transported the dog to the home of Maurice Harver in Dinwiddie County for the purpose of ascertaining whether the hound 'would tree coons.' When the dog was turned loose, it ran away. The defendant searched unsuccessfully for the dog, and then returned home.

The next day, the dog was found by one of Harver's neighbors and placed in Harver's pen. Later in the day, Woods and a game warden visited the Harver property. Finding no one home, they went to the pen and observed the dog. Woods identified the hound as his, removed it from the pen, and he and the game warden carried the animal away in the warden's automobile. The discovery and seizure of the dog were accomplished without a search warrant.

We will assume that the discovery and removal of the dog by Woods and the game warden constituted a police search and seizure, without a warrant, of evidence relating to the crime for which the defendant later was charged. This brings into focus the question of the defendant's standing to attack the validity of the search and seizure.

Prior to the decision in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), standing was afforded only when an accused owned or possessed the seized property or had a substantial possessory interest in the premises searched. These restricted bases for standing, the Jones court said, placed an accused charged with a possessory crime, E.g., possession of narcotics, in the dilemma of having to admit possession to gain standing while facing the risk that the admission would be used against him at trial. The previously restricted rules, the court opined, also permitted the prosecution to take advantage of contradictory positions by alleging possession as part of the crime charged but denying possession sufficient to afford the accused standing.

To correct what it termed a situation 'not consonant with the amenities,' the court fashioned two new rules relative to standing. First, it established 'automatic' standing where 'possession both convicts and confers standing.' In such a situation, the court held, there is no 'necessity for a preliminary showing of an interest in the premises searched or the property seized.' 362 U.S. at 263, 80 S.Ct. at 732. Second, the court established an additional basis for standing. It held that it is not necessary that an accused have a possessory interest in the premises searched; he is entitled to standing if he is 'legitimately on premises where a search occurs.' 362 U.S. at 267, 80 S.Ct. at 734.

Later, the Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the court considered the question whether persons charged with non-possessory crimes, E.g., bank robbery, 'are entitled to be relieved of their dilemma entirely,' the dilemma consisting of the necessity, referred to in Jones, of admitting possession to gain standing while facing the risk that the admission would be used at trial to prove an element of the offense. The court held that 'when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.' 390 U.S. at 394, 88 S.Ct. at 976.

Then, in Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), the court considered the contention of the defendants, charged with transporting and conspiring to transport stolen goods, that they were entitled to the Jones 'automatic' standing to challenge the seizure of goods from the store of a co-conspirator. The court rejected the contention, holding that there was no standing becaue the defendants (a) were not on the premises at the time of the contested search and seizure, (b) alleged no proprietary or possessory interest in the premises, and (c) were not charged with an offense that included, as an essential element of the offense charged, possession of the seized evidence At the time of the contested search and seizure. 411 U.S. at 229, 93 S.Ct. 1565. The court intimated that, because Simmons barred use at trial of any admission made by an accused at a suppression hearing, the Jones 'automatic' standing rule no longer would be necessary, especially where possession at the time of the contested search and seizure is not an essential element of the offense charged. 411 U.S. at 229, 93 S.Ct. 1565.

Jones and Brown make clear that it is possession At the time of the contested search and seizure, possession essential to the prosecution's case, which is crucial to a determination whether a defendant is entitled to 'automatic' standing. In the present case, the defendant was not charged with a crime in which possession At the time of the disputed search and seizure was an essential element of the offense. While the defendant was charged with larceny, and while asportation, which implies at least a modicum of possession, is an element of larceny, the Commonwealth's case against the defendant did not depend upon either allegation of proof that he carried away or possessed the dog in question At the time of the disputed search and seizure. Indeed, the defendant was charged with stealing the god on the day preceding the search and seizure; independent evidence, both at the suppression hearing and at trial, showed his asportation and possession of the dog on that earlier date. Furthermore, at the time of the search, the defendant did not have the dog in his...