Johnson v. Com.

• Decision Date: 24 February 1998
• Docket Number: No. 1791-96-1,1791-96-1
• Citation: 26 Va.App. 674,496 S.E.2d 143
• Parties: Barry Thomas JOHNSON v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 143

496 S.E.2d 143

26 Va.App. 674

Barry Thomas JOHNSON v. COMMONWEALTH of Virginia.

Record No. 1791-96-1.

Court of Appeals of Virginia Norfolk.

Feb. 24, 1998.

Jon C. Poulson, Accomac, for appellant.

John K. Byrum, Jr., Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.

Present: BAKER, BRAY and OVERTON, JJ.

BAKER, Judge.

Barry Thomas Johnson (appellant) was convicted in a bench trial in the Accomack County Circuit Court for "failure to tag striped bass after bringing to shore" in violation of Code § 28.2-201 and Virginia Regulation 450-01-0104. ¹ On appeal, he contends the trial court erroneously denied his motion to suppress evidence seized during a warrantless search of his business premises. The Commonwealth contends the administrative search exception to the warrant requirement validated the search or, alternatively, that appellant had no reasonable expectation of privacy in the area searched. We conclude that the Commonwealth waived its right to assert the administrative search exception as a basis for the search when it conceded in the trial court that the exception did not apply, and we hold that the search violated the Fourth Amendment. For the reasons set forth more fully below, we reverse appellant's conviction.

Background

At about 10:30 a.m. on January 30, 1996, Officer Judith Mackley of the Virginia Marine Resources Commission (VMRC) entered onto the Onancock fish house property, co-leased by appellant, in order to "conduct an inspection of seafood." She did not have a search warrant.

The fish house property is comprised of (1) a warehouse building, approximately "180 foot square," with a small office in the southwest corner and (2) a dock adjacent to the Onancock Creek on the west. The property is bounded on the north and west by the Onancock Creek. A right-of-way leading due south from the southeast corner of the warehouse property connects it to King Street, a public thoroughfare. The property to the south of the warehouse and west of the right-of-way is the Walker Gravel Company.

On January 30, 1996, the entrance to the gravel company property bore three signs: a "POSTED private property" sign on the building to the left of the entrance; a "PRIVATE PROPERTY NO TRESPASSING" sign hanging from a chain across an opening in the fence which served as the entrance; and a "NO TRESPASSING" sign on the fence to the right of the entrance. However, the chain was down in order to permit entry during Walker's business hours. Appellant and his co-lessees had permission to use the Walker property.

Mackley parked on the gravel company lot on the south side and walked onto the fish house property through an opening in the fence and toward "NO TRESPASSING" and "DANGER KEEP OUT" signs posted on the south side of the warehouse. Mackley understood that the signs meant "[y]ou cannot go onto that property or ground," but she nevertheless proceeded past the signs and the entrance to the office and walked down the dock on the west side of the building. The weather was cold and drizzly, and all doors on the south side of the building were closed.

After walking approximately seventy feet down the dock, Mackley saw about thirty untagged striped bass below the gunnel on the deck of appellant's boat, the Lady Bea, which was moored to the dock. Mackley walked further, looked through an open ten-by-ten-foot door on the right, and saw appellant's mate weigh an untagged striped bass and drop it into an iced seafood box. A conveyor belt moved the fish from the boat through the open door into the warehouse's packing area. The fish could not have been "offloaded ... without the door being open."

Appellant, who was in the office, saw Mackley walk past the office window toward the dock packing area, and he proceeded to the packing area, as well. When he rounded the corner, Mackley pointed to the fish in the open box, and appellant confirmed that they were his. He also confirmed that the fish on his boat were his. Appellant "immediately" asked, "When are you supposed to tag them?" Mackley replied, "[Y]ou're supposed to tag them as soon as you capture them and certainly by the time you get to shore." Appellant responded, "Nobody tells me nothing. I didn't know that you were supposed to tag them." Mackley then walked through the open warehouse door, put her hands on eleven closed seafood boxes sitting on a pallet and asked appellant if they were his. When he responded affirmatively, she removed the lids and discovered additional untagged striped bass. She seized all the untagged fish. Mackley agreed that she had seen nothing illegal on appellant's boat or inside the warehouse until she had entered the property and walked down the dock.

The evidence showed that appellant and five other men, including James Stalgaitis and Sam Swift, leased the warehouse and property jointly and had done so for about ten years. The men were all watermen, working separately, who used the property to store equipment, dock their boats and pack fish for wholesale, not retail, sale. They all used the whole premises, which included a cooler and an ice machine, and did not have separate storage areas. The property had been posted for the duration of their lease. It was not open to the general public, and entry was by invitation only. Each co-lessee had a key to the premises and the right to exclude others subject to the majority rule. The building was poorly lit, and two of the lessees testified that when the door facing King Street or the door facing Onancock Creek was open, "It's a dark place." "All you will see [from the street or the creek] ... is a black hole. You can't see through the building" and "would [not] really know what was there."

Appellant offered evidence that the last waterman to return each evening was responsible for securing the warehouse premises. The Commonwealth presented evidence that the local police had found the darkened warehouse open and apparently untended on fifteen to twenty occasions during the year prior to trial. On cross-examination, the police officer admitted that he did not actually search the premises and did not know whether any of the watermen were still on the way to shore in their boats.

In the year prior to January 30, 1996, Mackley had been on the fish house property nine times to conduct seafood inspections and to check the condemned area of the adjacent Onancock Creek. On none of those occasions did she announce that she was coming or ask for permission to be on the property. On one occasion during August of 1995, Stalgaitis found Mackley on appellant's boat, which was moored at the warehouse dock, when appellant was not on the premises. She was "looking in the fish box." Stalgaitis told her, "[T]his is private property.... The boat is private and you really don't have the authority to do this." Mackley responded that she had the authority and that appellant had given her permission.

Mackley testified that she did not remember the conversation very well, but confirmed that a conversation took place while she was on appellant's boat and that she told Stalgaitis she had "the right to make an inspection." She indicated that she had boarded the boat "when [appellant] was there" and that she might have asked for his consent. She did not believe that Stalgaitis told her the dock and the boat were private property, but said that "[h]e might have." She conceded that other than the August 1995 incident when appellant may have given her permission to search, neither appellant nor any of his co-lessees had given her permission to come onto the property.

In addition to Mackley, other VMRC officials visited the warehouse property for various purposes, including posting notices and conducting inspections. Other than Stalgaitis' August 1995 encounter with Mackley, the watermen did not challenge the authority of the VMRC officers to be on the premises, but none gave them blanket permission to be on the premises. Some of the officers routinely came to the office first to ask permission to visit the rest of the property, and some did not. All wore uniforms, badges, and guns. Appellant and his co-lessees did not know the nature or scope of VMRC authority to come onto their property. Officer Landon admitted that a person refusing or interfering with an inspection could be charged for that offense.

Appellant admitted that as of January 30, 1996, he was not certain whether their lease covered the dock area. He admitted that it was not unusual for people other than wholesalers to come to the property, but indicated that he would ask what they wanted.

At the request of the trial court, appellant and the Commonwealth's attorney reviewed case law relating to the administrative search exception to the warrant requirement, and both represented to the trial court that the exception did not apply in this case. Based on the parties' representations and its own review of the relevant legal principles, the trial court held that the VMRC had no administrative authority to conduct a warrantless inspection or search of the premises for untagged striped bass. However, it held that appellant had no subjective expectation of privacy in the dock and warehouse because he and his co-lessees allowed other people, including VMRC officials, on the property for a variety of reasons and that the untagged fish were in plain view of both those on the property and those on the navigable waters of Onancock Creek. It noted that when appellant left the fish in plain view of his co-lessees, he showed that he had no legitimate expectation of privacy in them.

The trial court appeared to conclude that the viewing of the warehouse was a "search," but held that it was reasonable under the circumstances: "Once the officer observed the [untagged fish in the boat], she then could legitimately look to her right, through the open door and see the fish on the scale," and exigent circumstances permitted her...