Hawley v. Com.

• Decision Date: 11 October 1965
• Citation: 206 Va. 479,144 S.E.2d 314
• Parties: John Edward HAWLEY v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 314

144 S.E.2d 314

206 Va. 479

John Edward HAWLEY v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

Oct. 11, 1965.

Frederick T. Stant, Jr., Norfolk (Thomas W. Moss, Jr., Roger T. Williams, Stant, Moss, Rafal & Stokes, Norfolk, on brief), for plaintiff in error. D. Gardiner Tyler, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.

Before SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.

GORDON, Justice.

The defendant, John Edward Hawley, asks us to set aside his conviction of statutory burglary because the conviction rested on illegally obtained evidence that he had possession of the stolen property shortly after the crime was committed. This evidence, the defendant says, was procured by an unreasonable search of a Chrysler automobile, in violation of his constitutional rights, and was therefore inadmissible.

On November 15, 1963, a dwelling in the city of Chesapeake, Virginia, was broken into, and United States coins (including currency and proof coins) and whiskey were stolen.

On November 16, 1963, Hawley arrived at a motel in Salisbury, Maryland, driving a Chrysler automobile, and he engaged a room in the motel, registering under a false name (Mark Richmond) and giving a false address. Before checking out on the same day, Hawley attempted to arrange for the safekeeping of coins in his possession; he asked the manager to place the coins, which he said totaled approximately $2,000, in the motel safe. The manager refused; but he acceded to Hawley's alternative request that he be permitted to park the automobile in front of the office. Hawley drove the automobile to that place and departed, telling the manager that he would return in three or four days to pick up the automobile.

The automobile remained eight or ten days on the motel premises, where it had been parked by Hawley. Then, the manager of the motel called the Salisbury police, and in response Sergeant Barnett came to the motel to investigate.

Sergeant Barnett obtained the name of the owner of the Chrysler by transmitting the license number to the Virginia Department of Motor Vehicles and receiving return advice. Apparently, he learned that the automobile was owned by one Melvin Blake.

Later in the day, Sergeant Barnett received information that the Chrysler was believed to have been involved in a burglary in the city of Chesapeake. A person who identified himself as a detective of the Chesapeake police force called Sergeant Barnett to give him this information. (When he testified at the trial of this case, Sergeant Barnett could not recall the name of the detective who called him, and he admitted that he had never talked to him before.)

The Chrysler was towed from the motel to the police headquarters in Salisbury. It was entered through an unlocked door, and the officers found under the right front seat a cigar box containing seven sets of proof coins and a bottle of whiskey, part of which had been consumed. Before entering the automobile, Sergeant Barnett saw, by looking through the window, the packages of proof coins and the whiskey. ¹ Then, the trunk of the automobile was opened by force and a large quantity of currency and proof coins was found in bags or in packages in the trunk. ² A search warrant was not obtained.

The Chesapeake police attempted to locate Hawley in the vicinity of Chesapeake and in other states and regions during the five-month period beginning November 16, 1963. He was found and arrested in Norfolk, Virginia on April 8, 1964, and he was later indicted for the burglary in Chesapeake.

There is no evidence that during the five-month period, while Hawley was a fugitive, he returned to Salisbury or made any effort to obtain the Chrysler or to ascertain its whereabouts.

At Hawley's trial, he was identified as the person who left the Chrysler at the motel in Salisbury, and the currency and proof coins were identified as those stolen on November 15, 1963 in Chesapeake. Hawley did not testify, and no evidence was offered to explain his possession of the stolen articles.

We are compelled to follow the federal rule that evidence obtained in violation of the Fourth Amendment to the United States Constitution is inadmissible in criminal trials. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (overruling Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949)); Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). By Mapp and Ker, the Fourth Amendment and the accompanying federal exclusionary rule (relating to illegally seized evidence) have been made applicable to the states. ³

It is settled, however, that the right afforded to persons by the Fourth Amendment--to be secure against unreasonable searches and seizures of 'their' persons and property--does not extend to abandoned premises or property. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). So, if the Chrysler had been abandoned by Hawley, the search of the automobile and the seizure of the stolen coins and whiskey did not violate any right afforded him under the Fourth Amendment, and the seized evidence was properly admitted at his trial for statutory burglary.

In considering the question of abandonment, we should first notice Hawley's interest in the Chrysler. The record does not disclose the arrangements, if any, between the owner of the automobile and Hawley respecting Hawley's use of the automobile. The evidence fails to show that Hawley had the owner's permission to possess and use the automobile; it shows only that he possessed and drove the automobile continually or from time to time during the period April 15, 1963--November 16, 1963 and, in particular, in Chesapeake on the day of the crime and in Salisbury on the next day (November 16, 1963). Melvin Blake (who has been mentioned as the apparent owner of the automobile and who testified in this case) did not say that he gave Hawley permission to use the automobile or that permission was given by any other person. Accordingly, there was no proof that Hawley, when he drove the automobile to Salisbury on November 16, 1963 and left it there, had the right to use and occupy the vehicle. Nevertheless, for the purpose of discussing the issue of abandonment, we will assume that Hawley possessed the automobile on November 16, 1963 with the owner's permission.

Defense counsel does not base Hawley's constitutional right or 'standing' to object to the search on a claim of ownership of the automobile. He relies upon Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), which held that an invitee of the tenant of an apartment, which was searched by police officers, had standing to object to the admission of seized articles. ⁴

We have, then, at most the question of abandonment of the mere right to possession, and not the abandonment of ownership.

Admittedly, intention is a prime factor in determining whether there has been an abandonment. And courts must determine intent from what the actor said and did; intent, though subjective, is determined from the objective facts at hand.

In view of the facts of this case, the finding that Hawley abandoned his right to possess the Chrysler is inescapable. He left it in Salisbury, with stolen goods inside, and fled. He was apprehended some five months later and (insofar as the record shows) never attempted to retrieve the automobile or to find out whether it had been moved from the place where he left it.

True, there is evidence in the record that Hawley did not intend to abandon any possessory right in the automobile when he left the motel on November 16. He parked the automobile in a place where it could be observed, obviously for the preservation of its contents. But, significantly, he told the manager that he would return in three or four days. Accordingly, if we recognize Hawley's intention to return when he left the motel, from what he said and did, we must recognize from the same evidence his change of intention at some time during the three or four day period. And the only hypothesis consistent with the evidence is that he determined to abandon any right in the automobile during that...