Commonwealth Of Va. v. Ferrell

• Decision Date: 10 February 2011
• Docket Number: Record No. 1979-10-2
• Court: Virginia Court of Appeals
• Parties: COMMONWEALTH OF VIRGINIA v. MICHAEL ADAM FERRELL

COMMONWEALTH OF VIRGINIA

v.MICHAEL ADAM FERRELL

Record No. 1979-10-2

COURT OF APPEALS OF VIRGINIA

FEBRUARY 10, 2011

Present: Chief Judge Felton, Judges Elder and Alston

Argued by teleconference

MEMORANDUM OPINION^* BY

JUDGE ROSSIE D. ALSTON, JR.

FROM THE CIRCUIT COURT OF LOUISA COUNTY

Timothy K. Sanner, Judge

Gregory W. Franklin, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on briefs), for appellant.

Stephen C. Harris for appellee.

The Commonwealth appeals the trial court's pretrial order granting a motion to suppress evidence recovered by the police during a search of a Chevrolet Celebrity automobile. On appeal, the Commonwealth argues that the trial court erred in granting the motion to suppress because Michael Adam Ferrell (defendant) lacked standing to object to the search and because the trial court's ruling that consent to the search was withdrawn was unsupported by the evidence and plainly wrong. For the reasons that follow, we find that the trial court erred in granting the motion to suppress and remand the case for trial on the merits if the Commonwealth is so inclined.

I. Background¹

On May 22, 2010, assailants in a vehicle shot William Luck at the Lake Anna Beach Marina. Investigating officers, including Detective Jeffrey Simms of the Louisa County Sheriff's Office, obtained a description of the vehicle from which the shot was fired. A witness to the shooting, Christopher Cox, informed the officers that the vehicle belonged to the defendant's grandmother, Evelyn Ferrell (herein "grandmother"). Subsequently, police located a Chevrolet Celebrity, a vehicle matching the description of that used in the shooting, parked in the carport of a residence on Hayden Lane. The residence, along with several other residences on the street, belonged to Daniel A. Ferrell, Sr., defendant's father (herein "father"). Although the residence at which the car was found belonged to father, grandmother lived there.

Officers approached grandmother's house to obtain consent to search the vehicle. At the house, they spoke first with Daniel Ferrell, Jr., defendant's brother, who told them that the car belonged to grandmother. Officers then spoke to grandmother, who consented to a search of the car. The police then began to search the car. At some point, after grandmother consented to the search, grandmother called father and told him that the police were at the house. At the hearing on the motion to suppress, father testified as follows regarding his conversation with grandmother:

A:... I tried to speak to [the police] when [grandmother] called me crying and said that the police were there, and I asked them not to do anything until I got there, you know, that I would be there in 15 or 20 minutes, and I asked her if they wanted to talk to me at that time on the cell phone, and I heard them-cause [sic] she was on the deck... my daughter helped them get her outside-THE COURT: Let me just back you up for a minute. So, who are you on the phone with at this point?

A: I-[grandmother] had called me hysterical, just crying and, you know-you know, and I told her then to tell them not to do anything else, because she-she don't [sic] understand a lot of times....

THE COURT: So... [grandmother] had called you. So then you told her to tell the police, basically, not to search the vehicle?

A: She had me on the phone and the police was [sic] right there in front of her-the two officers were right there in front of her with Hillary [Pritchett], and I said that I was leaving Mineral [Restaurant] right then.... I told them we was [sic] leaving, I could be there in 15 or 20 minutes, do not do anything until I get there.

THE COURT: You're telling this to who, [grandmother]?

A: [Grandmother] on the phone-

THE COURT: Okay.

A:--and she's relaying it to the police officers, cause [sic] I heard her tell the police officers, and I mean, I asked if they needed to speak to me and they refused to speak to me. He told me-you know, I heard them say---reply back to her, they did not need to speak to me. That's how close they were with the conversation. I could hear both ends.

Father's adult daughter, Hillary Pritchett (Pritchett), was present at grandmother's house while the search was conducted. Pritchett testified as follows regarding the phone conversation:

A: [When I arrived at grandmother's house], the police were already searching the vehicle. I ran up on the porch and [grandmother] was already on the phone with [father], and at that time he was telling her to tell the cops to not do anything, to tell them that he would be there in 20 minutes.

THE COURT: How did you-how could you hear that?

A: Because she was repeating everything he was saying, and their response were-to her, was they don't need to talk to him.

In contrast to father's and Pritchett's testimony, Detective Simms testified at the hearing on the motion to suppress that, at the time of the search, he was unaware of any telephone conversation between father and grandmother and did not hear grandmother speaking to father as father and Pritchett testified.

During the search, officers discovered in the car a.40 caliber shell casing, consistent with the casing found where Luck was shot and made by the same manufacturer. A lab report later revealed that the same weapon fired the casing at the scene of the shooting and the casing found in the car.

Defendant was charged with aggravated malicious wounding, use of a firearm in a felony, and possession of a firearm as a convicted felon. Before trial, defendant moved to suppress the evidence obtained from the search of the car. On August 23, 2010, the trial court held a hearing on the motion to suppress. Detective Simms, Pritchett, and father testified concerning the circumstances of the search of the car. In addition to the testimony described above, father testified that he had been the sole owner of the Chevrolet Celebrity for at least the previous five years, when he bought it from grandmother. He kept the car as a "good spare vehicle for the family" and had lent it to both his friends and his family in the past. Approximately three or four weeks before the search of the vehicle, defendant's truck was damaged, and defendant needed a car. Father lent defendant the Chevrolet Celebrity, and, at the time of the search, defendant had the only set of keys to the car.

The trial court found that father was the true owner of the Chevrolet Celebrity and defendant's possession of the only set of keys to the vehicle and his continued exclusive use of the vehicle for several weeks gave him an expectation of privacy in the car and standing to challenge the search. The trial court further found that Detective Simms, father, and Pritchett were all credible witnesses, with some flaws in their testimony. Specifically, the trial courtapparently discredited Detective Simms' testimony that police were unaware of the phone conversation between father and grandmother and credited father and Pritchett's testimony regarding the phone conversation. Moreover, the trial court found that the officers reasonably believed that grandmother had authority to grant consent to search the vehicle, but that, subsequently,

[Grandmother], apparently upset that the police were now searching the vehicle, calls [father] and Ms. Pritchett. On this evidentiary point, detective Sims [sic] was relatively weak and the defendant's evidence strong. Ms. Pritchett went to the scene soon thereafter and her testimony was that [grandmother] was on the phone with [father] repeating for the officers what he said, which generally seemed to consist of the fact that he was the owner of the vehicle and didn't want the vehicle searched. It appears to the Court that at that point [grandmother] was making it known to the officers that [father] and implicitly herself, as well, did not want the vehicle searched and were ignored by the officers present.... It appears to the Court that when [grandmother's] demeanor changed and she advised the officers that [father] was on his way and wanted the search stopped that a decidedly different set of circumstances was now occurring than had originally been the case. Under these circumstances, consent was being withdrawn.

As a result, the trial court granted defendant's motion to suppress. This appeal followed.

II. Analysis

On appeal, the Commonwealth argues that the trial court erred in holding that defendant had standing to challenge the search and that grandmother had effectively withdrawn her consent to the search.

A. Standing

A defendant who moves to suppress evidence obtained as a result of a search has the burden to prove that he had a legitimate expectation of privacy in the area searched so as to confer standing to challenge the search. Bell v. Commonwealth, 264 Va. 172, 190, 563 S.E.2d 695, 708 (2002) (citing Barnes v. Commonwealth, 234 Va. 130, 135, 360 S.E.2d 196, 200 (1987)).

In Hardy v. Commonwealth. 17 Va. App. 677, 680, 440 S.E.2d 434, 436 (1994) (citing Josephs v. Commonwealth. 10 Va. App. 87, 92-95, 390 S.E.2d 491, 493-96 (1990) (en banc)), this Court held that "[a]n accused has standing to object to a search of an automobile only if he is the owner or in lawful possession of it." In Hardy, the defendant's brother-in-law lent his Thunderbird car to the defendant. Id. at 679, 440 S.E.2d at 436. "At the time of the search, [the defendant] had been in lawful possession of the vehicle for several days." Id. at 680, 440 S.E.2d at 436. Noting that "[o]ther jurisdictions have uniformly held that the mere fact that a vehicle is borrowed does not diminish the borrower's reasonable expectation of privacy in it," id. (citing United States v. Miller, 821 F.2d 546 (11th Cir. 1987); United States v. Portillo, 633 F.2d 1313 (9th Cir. 1980); United States v. Williams, 714 F.2d 777 (8th Cir. 1983)), the Court held that the defendant had standing to challenge the search of the car. Id. at 681, 440 S.E.2d at 437.

From the analytical framework articulated in ...