Josephs v. Com.

• Decision Date: 27 March 1990
• Docket Number: No. 0423-87-2,0423-87-2
• Citation: 10 Va.App. 87,390 S.E.2d 491
• Parties: Faith Angela JOSEPHS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 491

390 S.E.2d 491

10 Va.App. 87

Faith Angela JOSEPHS v. COMMONWEALTH of Virginia.

Record No. 0423-87-2.

Court of Appeals of Virginia.

March 27, 1990.

[10 Va.App. 89] Michael Morchower (Sharon E. Gregory, Morchower, Luxton and Whaley, Richmond, on brief), for appellant.

H. Elizabeth Shaffer, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and BARROW, BENTON, COLE, COLEMAN, DUFF, HODGES, ¹ KEENAN and MOON, JJ.

ON HEARING EN BANC

COLE, Judge.

This case was heard en banc pursuant to Code § 17-116.02(D). The appellant, Faith Angela Josephs, contends that her conviction for distribution of marijuana in violation of Code § 18.2-248.1 should be overturned because (1) the state police improperly stopped the vehicle in which she was a passenger, and (2) the evidence was insufficient to establish that she knowingly and intentionally possessed marijuana. For the reasons that follow, we affirm the conviction.

Josephs was indicted on two charges: (1) grand larceny of the vehicle, the property of General Rent-A-Car; and (2) possession with intent to distribute more than five pounds of marijuana. She moved to suppress all of the evidence secured by virtue of the illegal stop. After denial of her motion to suppress, the trial court found her guilty of both charges. No appeal was taken from the larceny conviction. This appeal results from the conviction of possession of marijuana with intent to distribute.

Trooper C.S. Asbury was the only witness who testified at the suppression hearing. On August 20, 1986, Asbury, a twenty-one year veteran of the Virginia State Police, was stationed on Interstate 95 in Hanover County. At the time of the events in question, he was in uniform, displaying his badge of office, but driving an unmarked police car. According to his testimony, his attention was drawn to a 1986 blue Cavalier Chevrolet proceeding north, five miles below the speed limit. It bore a Florida license plate indicating it was a rental vehicle from Dade County, Florida. Asbury saw only one person in the car, a black male. Asbury could see no luggage in the vehicle. At least twice, the trooper pulled along side of the vehicle and looked at the driver for ten to fifteen seconds. The driver never looked at the trooper, but kept looking straight ahead. When Asbury dropped back behind the Chevrolet, the driver repeatedly glanced in the rear view mirror at him. This action and reaction continued for approximately seven miles, during which time Asbury decided that he had reasonable suspicion to stop the vehicle for further investigation. He called for assistance from a marked police car. Despite the fact that the troopers had red and blue flashing lights on their vehicles, the driver was slow to stop. He travelled about half a mile before pulling into the right emergency lane on the shoulder of the highway. Asbury did not see the defendant and her five year old daughter, who were lying down in the back seat. After stopping the vehicle, the trooper found that the car was rented in the name of a third party who was not in it. The documents further indicated that the vehicle was not to be driven out of Florida. The trooper verified this information in Florida and discovered that the occupants were not authorized to have possession of the vehicle. The driver and Josephs were arrested for larceny of the car and informed of their rights.

The officers requested the driver's permission to search the trunk. He refused. A narcotics dog was called to the scene and he promptly alerted on the trunk. Armed with this information, the officers opened the trunk and searched it. When the trunk was opened, Asbury noticed a strong odor of marijuana and discovered four tied opaque garbage bags containing a weed-like substance which proved to be 130 pounds of marijuana. They also found two pieces of luggage. Josephs identified her luggage but maintained that she knew nothing about the drugs, saying that she was merely riding in the car in order to get to New York.

I. STANDING

The defendant challenges the legality of the initial stop of the vehicle, which she asserts was a violation of her right under the fourth and fourteenth amendments to be free from illegal seizure. The Attorney General contends that, since the defendant was a thief in a stolen car, she has no standing to complain of the stop and search of the car.

As early as 1907 the Supreme Court held that remedies for violations of constitutional rights would only be afforded to a person who "belongs to the class for whose sake the constitutional protection is given." Hatch v. Reardon, 204 U.S. 152, 160, 27 S.Ct. 188, 190, 51 L.Ed. 415 (1907). "[I]t is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he ... establish that he himself was the victim of an invasion of privacy." Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697 (1960). Subsequent attempts to vicariously assert violations of the fourth amendment rights of others have been rejected repeatedly by the Supreme Court. See, e.g., Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969). We, therefore, address the history of standing since it is essential to an understanding of the principles involved.

In Jones, a defendant charged with unlawful possession of contraband desired to contest the search and seizure that led to discovery of the contraband. The law of standing then in effect required that he establish his possession of the contraband. This evidence of possession, however, could later be used against him at trial. The Supreme Court attempted to resolve this dilemma through two alternative holdings. First, it established a rule of "automatic" standing to contest an allegedly illegal search where the proof of possession needed to establish standing was also an essential element of the offense charged. 362 U.S. at 264, 80 S.Ct. at 732. Second, it held that anyone legitimately on the premises where a search occurred could challenge its legality. Id. at 267, 80 S.Ct. at 734. We are not concerned with "automatic" standing since this principle was overruled in United States v. Salvucci, 448 U.S. 83, 95, 100 S.Ct. 2547, 2554, 65 L.Ed.2d 619 (1980); see also McCoy v. Commonwealth, 2 Va.App. 309, 311, 343 S.E.2d 383, 385 (1986). Our interest lies in the second alternative--the legitimacy of presence at the location of a search. The Jones Court concluded:

No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him.

362 U.S. at 267, 80 S.Ct. at 734. The Court modified this holding by adding: "This would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched." Id. (emphasis added).

One authoritative writer, in commenting upon this proscription, stated that "[t]his limitation also has its counterpart in the vehicle search cases decided both before and after Rakas: most courts agree that an occupant of a vehicle cannot be said to have standing by virtue of his presence if he is in possession of a stolen or otherwise illegally possessed or controlled vehicle." 4 W. LaFave, Search and Seizure § 11.3(e) (2d ed. 1987). In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) the Supreme Court stated that, despite the "clear statement" in Jones, "several lower courts inexplicably have held that a person present in a stolen automobile at the time of a search may object to the lawfulness of the search of the automobile." Rakas at 141 n. 9, 99 S.Ct. at 429 n. 9. This language clearly suggests that the lawfulness of the defendant's interest in the place searched is critically important.

The standard of "legitimately on premises" announced in Jones was reexamined in Rakas, where the petitioners urged the Court to broaden the rule of standing so that "any criminal defendant at whom a search was 'directed' would have standing to contest the legality of that search and object to the admission at trial of evidence obtained as a result of the search." Id. at 132, 99 S.Ct. at 424. The Court rejected this approach and in the process announced a new focus for the inquiry in cases such as this. The Court observed that labeling the question in Jones as one of "standing" did not aid in the determination of the motion to suppress. Id. 439 U.S. at 133, 99 S.Ct. at 425. The question would be more appropriately characterized by "simply recognizing it as one involving the substantive question of whether or not the proponent of the motion to suppress has had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge." Id.

The Court then departed from the Jones standard of "legitimately on premises," which it felt was too broad, and reaffirmed the criterion first established in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)--whether the person claiming the protection of the fourth amendment "has a legitimate expectation of privacy in the invaded place." 439 U.S. at 143, 99 S.Ct. at 430. In a lengthy footnote, the Court explained "legitimate expectation of privacy:"

Obviously, however, a "legitimate" expectation of privacy by definition means more than a subjective expectation of not being discovered. A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as "legitimate." His presence, in the words of Jones, 362 U.S. at 267 , is "wrongful"; his expectation is not "one that society is prepared to recognize as 'reasonable.' " Katz v. United States, 389 U.S. at 361 ...