Redmond v. Com.

• Decision Date: 16 November 2010
• Docket Number: Record No. 2443-09-4.
• Citation: 57 Va.App. 254,701 S.E.2d 81
• Parties: John Brian REDMOND v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

701 S.E.2d 81

57 Va.App. 254

John Brian REDMOND

v.COMMONWEALTH of Virginia.

Record No. 2443-09-4.

Court of Appeals of Virginia.

Nov. 16, 2010.

Roger A. Inger (Inger & Collins, P.C., on brief), Winchester, for appellant.

Eugene Murphy, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: HALEY and ALSTON, JJ., and CLEMENTS, S.J.

ALSTON, Judge.

John Brian Redmond (appellant) appeals his conviction of violating Code § 18.2-308.2 by possessing a firearm afterhaving been convicted of a felony. Appellant contends the trial court erred in denying his motion to suppress the evidence. Appellant also argues the evidence was insufficient to sustain his conviction. Finding no error, we affirm appellant's conviction.

I. BACKGROUND

Applying well-established principles of review on appeal, we state the evidence in the light most favorable to the party prevailing below, the Commonwealth in this instance. Haskins v. Commonwealth, 31 Va.App. 145, 148, 521 S.E.2d 777, 778 (1999).

The evidence showed that Eric Flagg, a special agent with the Bureau of Alcohol, Tobacco and Firearms, received information that appellant, who had a prior felony conviction, possessed firearms at his residence on Middle Road in Shenandoah County. Flagg also learned that the property had been listed for sale through a real estate company. In response, Flagg contacted the real estate agent for the property and said he was interested in looking at the house.

On August 3, 2008, Flagg and Investigator Laura Clutz met the realtor at the Middle Road residence. The realtor showed Flagg and Clutz the home, which had three levels of living space. In a den located in the basement was a wooden gun cabinet with glass panels. Several long guns were visible in the case. Flagg also saw several rounds of ammunition in the case. The realtor did not ask if Flagg and Clutz were police officers, and the officers did not volunteer this information.

Subsequently, the police filed an affidavit to obtain a warrant to search the Middle Road residence for illegal firearms, ammunition, and related evidence. The search warrant affidavit stated that Flagg had visited the residence with a realtor on August 3, 2008. The affidavit further stated,

During the walk through with the realtor, SA Flagg observed a pawn ticket on the refrigerator door. The pawn ticket was recent and showed that Tonya [sic] Henry had pawned three firearms at Bear's Trading Post, a pawnbroker in Winchester, Virginia. Additionally, while walking through the den located on the first floor, SA Flagg observed a glass and oak gun cabinet, which contained several firearms [including] modern rifles and black powder rifles. SA Flagg also observed a box of rifle ammunition.

A magistrate issued a search warrant for the entirety of the Middle Road residence on August 11, 2008, and police officers executed the warrant that same day. When the officers arrived, appellant was not present, but Tanya Henry and two young children were there.¹ The police advised Henry about the search warrant. Henry started making telephone calls in an attempt to locate appellant.

In the search, the police recovered several long guns from the unlocked gun cabinet in the basement den. During the search, police also observed on the walls of the residence's den photographs of appellant posing with deer that had been killed. In addition, miscellaneous items related to guns and hunting were present in the den. The police also found a pistol in a shed adjacent to the residence. Two boxes of ammunition, a gun magazine, and some loose bullets were found in a kitchen cabinet. In the foyer, the police found a box of ammunition on top of a periodical published in January 2007. The periodical was addressed to appellant at the Middle Road residence. Men's clothing, boots, hunting equipment, and a firearm were found in the closet of the master bedroom in the house.

At trial, Henry testified that the property at Middle Road was titled in her name alone. She had moved into the residence in 2004, when appellant was renting the home. According to Henry, appellant subsequently bought the home and then sold it to her. She said appellant had moved out of the residence in June 2008 because she and appellant had been arguing. However, appellant would return to the house periodically to see the children and get clothes. Henry testifiedthat after appellant left in June 2008, her nineteen-year-old son moved in to help her around the house. Henry said the guns the police found during the search belonged to her son and that the firearms were not present in the house when appellant was living there. Henry did acknowledge, however, that the male clothing in the master bedroom closet belonged to appellant.

The Commonwealth introduced documents proving that appellant deeded the property to himself and Henry as joint tenants in 2006. When the house was listed for sale in 2008, "Redmond" was indicated as the name of the owner of the property. At the time a bank foreclosed upon the property in March 2009, the listed owners were Henry and appellant.

II. SUPPRESSION

Appellant argues the police unlawfully entered the home and made the observations that provided the predicate for the items that were referenced in the search warrant affidavit.² Thus, he argues, the warrantwas invalid and thetrial court erred in refusing to suppress the evidence seized during the search. Essentially, appellant claims that the original entry into the residence by the police under the guise of being a potential buyer of the real estate was an illegal subterfuge, thus invalidating the basis for the search warrant. Where the defendant challenges the seizure of evidence by the police pursuant to a search warrant, he bears the burden of proving the search warrant invalid.³See Lebedun v. Commonwealth, 27 Va.App. 697, 710-11, 501 S.E.2d 427, 433-34 (1998) (citations omitted).

The Fourth Amendment

"protects people, not places." Katz v. United States, 389 U.S. 347, 351 [88 S.Ct. 507, 511, 19 L.Ed.2d 576] (1967). In order to effectuate the fourth amendment guarantees, the Supreme Court established the "exclusionary rule" whichprevents evidence obtained in violation of the fourth amendment from being used against an accused. Reynolds v. Commonwealth, 9 Va.App. 430, 435, 388 S.E.2d 659, 662-63 (1990); see also Walls v. Commonwealth, 2 Va.App. 639, 651, 347 S.E.2d 175, 182 (1986). Yet, the protections of the exclusionary rule are only available to individuals whose fourth amendment rights have been violated. Rakas [ v. Illinois ], 439 U.S. [128,] 134 [99 S.Ct. 421, 425-26, 58 L.Ed.2d 387 (1978) ]; accord United States v. Salvucci, 448 U.S. 83, 85 [100 S.Ct. 2547, 2549-50, 65 L.Ed.2d 619] (1980); McCoy v. Commonwealth, 2 Va.App. 309, 311, 343 S.E.2d 383, 385 (1986). Thus, before affording the exclusionary rule protections to a defendant, a court must determine whether, based on the totality of the circumstances, the defendant "objectively had a reasonable expectation of privacy at the time and place of the disputed search." McCoy, 2 Va.App. at 311, 343 S.E.2d at 385. The party asserting fourth amendment rights has the burden of proving the government conducted an illegal search of a place where that party had a legitimate expectation of privacy. Rawlings v. Kentucky, 448 U.S. 98, 104 [100 S.Ct. 2556, 2561, 65 L.Ed.2d 633] (1980).

Commonwealth v. Ealy, 12 Va.App. 744, 750-51, 407 S.E.2d 681, 685 (1991). "What a person knowingly exposes to the public, even in his own home ..., is not a subject of Fourth Amendment protection." Katz, 389 U.S. at 351, 88 S.Ct. at 511 (citations omitted).

In Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966), the United States Supreme Court considered whether the exclusionary rule prohibited the use of evidence obtained by a federal narcotics agent who gained entry to a defendant's home through subterfuge. In Lewis, a federal narcotics agent disguised his identity and was invited into the defendant's home, where the officer purchased drugs from the defendant. Id. at 206, 87 S.Ct. at 425. The Court found that

when, as here, the home is converted into a commercial center to which outsiders are invited for purposes of transactingunlawful business, that business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street. A government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant.

Id. at 211, 87 S.Ct. at 427. The Court noted that the officer, while in the defendant's home, did not "see, hear, or take anything that was not contemplated, and in fact intended, by [the defendant] as a necessary part of his illegal business." Id. at 210, 87 S.Ct. at 427.

We find no Virginia appellate decisions where a police officer, posing as a potential buyer of real property, entered a defendant's home that was listed for sale and thereby either viewed or obtained evidence against him. However, we find cases from other jurisdictions instructive.

In People v. Lucatero, 166 Cal.App.4th 1110, 83 Cal.Rptr.3d 364, 366 (2008), a police officer contacted a real estate agent and feigned interest in a house listed for sale. The officer, accompanied by the real estate agent, then toured the home. Id. During the viewing, the officer confirmed information a source previously had provided to him. Id. The officer included those confirmed facts in an affidavit and obtained a search warrant for the property. Id. The California Court of Appeal found the officer's entry to the home and the later search lawful, concluding that

an investigating officer may pose as a potential buyer and enter a home under this misrepresentation, assuming the officer's actions do not exceed the scope of the consent. The officer must act as a potential buyer and do nothing that would violate the homeowner's

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