Shaver v. Com.

• Citation: 30 Va. App. 789,520 S.E.2d 393
• Decision Date: 26 October 1999
• Docket Number: Record No. 1915-98-3.,Record No. 1909-98-3
• Court: Court of Appeals of Virginia
• Parties: William Dean SHAVER v. COMMONWEALTH of Virginia. Susan Elaine Bailey v. Commonwealth of Virginia.

520 S.E.2d 393

30 Va. App. 789

William Dean SHAVER v. COMMONWEALTH of Virginia.

Susan Elaine Bailey v. Commonwealth of Virginia.

Record Nos. 1909-98-3, 1915-98-3.

Court of Appeals of Virginia, Salem.

October 26, 1999.

Frederick M. Kellerman, Jr. (Long, Long & Kellerman, P.C., on brief), Blacksburg, for appellant William Dean Shaver.

Beverly M. Davis (Davis, Davis & Davis, on brief), Radford, for appellant Susan Elaine Bailey.

"Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on briefs), for appellee.

Present: FITZPATRICK, C.J., COLEMAN and BUMGARDNER, JJ.

COLEMAN, Judge.

William Dean Shaver and Susan Elaine Bailey were convicted in a joint bench trial of receiving stolen property, viz., an all-terrain vehicle (ATV), in violation of Code § 18.2-108. They appeal the trial court's refusal to suppress evidence allegedly obtained in violation of their Fourth Amendment protection against unreasonable search and seizures. They also contend the evidence was insufficient to support their convictions. Because the codefendants had no cognizable expectation of privacy at the place the vehicle was located or in the stolen vehicle, we affirm the trial court's denial of the motion to suppress. Additionally, we find the evidence sufficient to support the convictions.

BACKGROUND

Investigator Croy went to the home of William Shaver and Susan Bailey to investigate a forgery complaint that Bailey had lodged. As Croy left the residence, he observed an ATV with a non-factory camouflage paint job parked at the end of the driveway, next to the front porch and about 250 feet from the main road. The ATV was uncovered and visible from the road. Croy was aware of an ongoing investigation into ATV thefts and knew that his office recently recovered a stolen ATV with a similar camouflage paint job.

The following day, Croy returned to the defendants' residence with Investigator Fleet, who was investigating four or five recent ATV thefts in the area. Fleet knew that relatives of Bailey had been arrested in connection with other recent ATV thefts and that one of the recovered ATVs had a paint job similar to the one at the defendants' residence. The investigators intended to speak with the defendants and to examine the ATV to determine whether it was the same make and model as one reported stolen — a blue Honda with a gray seat and scratch marks on the right rear fender. The officers did not have a search warrant. The investigators knocked on the front door of the residence but no one answered. They then inspected the ATV and confirmed that it was the same make and model as the one reported stolen. Fleet confirmed that the camouflage paint and seat cover were not factory issued. The investigators raised the seat cover and observed that the original seat was gray. They also scratched some paint from the ATV with a penknife, which revealed underlying blue paint. The vehicle identification number had been filed or ground off.

The investigators then called Curtis Dean Fugate, the man who had recently reported stolen a blue Honda ATV with a gray seat, and requested that he come to the defendants' residence. On arrival, Fugate identified ten characteristics of the ATV that confirmed it to be his stolen ATV. The officers seized the ATV and released it to Fugate.

Shaver called the sheriffs office later that evening to report the ATV stolen. Shaver claimed to have purchased the ATV at a flea market for $1,500. At trial, Bailey corroborated Shaver's account of when they purchased the ATV and that she had given him the money from their joint funds. The date on which Shaver claimed to have purchased the ATV was, however, five months before the date the ATV was stolen from Fugate. Shaver could not produce a receipt or identify the person who allegedly had sold the ATV to him. Fugate estimated the ATV's value to be $3,500.

ANALYSIS

Suppression Motion

On appeal from a motion to suppress evidence, we review the evidence in the light most favorable to the prevailing party. See McGee v. Commonwealth, 25 Va.App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc.)

When reviewing a Fourth Amendment suppression ruling, "we are bound by the trial court's findings of historical fact unless `plainly wrong' or without evidence to support them." Id. at 198, 487 S.E.2d at 261 (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). However, we consider de novo whether those facts implicate the Fourth Amendment and, if so, whether the officers unlawfully infringed upon an area protected by the Fourth Amendment. See id. Here, accepting the facts as found by the trial judge, we hold that Bailey and Shaver had no legitimate expectation of privacy at the location on their property where the ATV was parked or in the ATV.

Two separate searches or intrusions by the officers are at issue. First, the officers entered upon the defendants' property where they saw and examined the ATV. Second, the officers searched the ATV by lifting the seat cover and scratching the ATV's surface paint.

Subject to several well established exceptions, the Fourth Amendment prohibits warrantless searches of any place or thing in which a person has a justifiable expectation of privacy. See Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)

. To determine whether a citizen "enjoys a reasonable expectation of privacy. . . we consider whether he [or she] has exhibited an expectation of privacy in the object and whether that expectation is one that `society is prepared to recognize as reasonable.'" Anderson v. Commonwealth, 25 Va.App. 565, 576, 490 S.E.2d 274, 279 (1997) (quoting Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)),

aff'd, 256 Va. 580, 507 S.E.2d 339 (1998).

Depending on circumstances, a citizen's reasonable expectation of privacy may extend to his or her residence, personal papers, vehicles, and belongings. However, where private lands are exposed to observation by members of the public who may legitimately come upon the property, a citizen does not reasonably have an expectation of privacy in areas that the passing public can observe. See Katz, 389 U.S. at 351,

88 S.Ct. 507 ("What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection."). Here, the defendants had no reasonable expectation of privacy in those areas of their property observable by members of the public who might approach their residence, pass by, or lawfully be upon their property. Therefore, they had no expectation of privacy in the area where the ATV was parked, which was next to their front porch, near the path of entry to the residence and visible from the road. See United States v. Ventling, 678 F.2d 63, 66 (8th Cir.1982) (finding that the defendant did not have a reasonable expectation of privacy in his driveway which was in public view); see generally United States v. McIver, 186 F.3d 1119, 1125 (9th Cir. Aug. 6, 1999) (concluding that affixing an electronic device to the undercarriage of defendant's vehicle which was parked in the defendant's driveway did not violate the Fourth Amendment because the defendant failed to demonstrate that he had a reasonable expectation of privacy in his driveway).

People commonly have different expectations, whether considered or not, for the access areas of their premises than they do for more secluded areas. Thus, we do not place things of a private nature on our front porches that we may very well entrust to the seclusion of a backyard, patio or deck. In the course of urban life, we have come to expect various members of the public to enter upon such a driveway, e.g., brush salesmen, newspaper boys, postmen, Girl Scout cookie sellers, distressed motorists, neighbors, friends. Any one of them may be reasonably expected to report observations of criminal activity to the police.... If one has a reasonable expectation that various members of society may enter the property in their personal or business pursuits, he should find it equally likely that the police will do so.

State v. Corbett, 15 Or.App. 470, 516 P.2d 487, 490 (1973)

In United States v. Smith, 783 F.2d 648 (6th Cir.1986), the Sixth Circuit concluded that whether a driveway is protected from entry by police officers varies from case to case and is dependant on whether the driveway is visible and accessible to the public. The court further noted that whether the driveway was within the curtilage of the house was not determinative. See id. at 651. In Smith, a police officer, acting on an informant's tip, drove to the defendant's residence and up the private driveway approximately seventy-five to one hundred yards. See id. at 650. Although there was a wire fence along the highway, the driveway was unobstructed. When the officer reached the house, he observed a marijuana plant growing next to the house. See id. The court held that the defendant had no reasonable expectation of privacy where the plant was growing and further held that the officer did not violate the defendant's Fourth Amendment rights by entering the driveway and proceeding to the residence.

Here, the ATV was parked on a private drive near the front porch of the home where it was visible to the public from the street. The defendants made no attempt to restrict or shield the driveway from public view. The driveway was not enclosed by a fence, shrubbery, or other barrier. See United States v. Humphries, 636 F.2d 1172, 1179 (9th Cir.1980)

(finding that the defendant did not have a reasonable expectation of privacy in his driveway and in the inspection of the car parked thereon because the car was visible from the street and because the driveway was not enclosed by a fence or shrubbery and the officer did not have to move anything to gain access to the driveway). Therefore, when the officers entered upon the defendants' property to...