Thomas v. Commonwealth, Record No. 0524-03-3 (VA 6/29/2004), Record No. 0524-03-3.
| Decision Date | 29 June 2004 |
| Docket Number | Record No. 0524-03-3. |
| Parties | KEVIN MAURICE THOMAS v. COMMONWEALTH OF VIRGINIA. |
| Court | Virginia Supreme Court |
Appeal from the Circuit Court of Pittsylvania County, Charles J. Strauss, Judge.
Jesse W. Meadows III, for appellant.
Leah A. Darron, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: Judges Bumgardner, McClanahan and Senior Judge Coleman.
Kevin Maurice Thomas (Thomas) was convicted of two counts of possessing stolen property with altered serial numbers in violation of Code § 18.2-96.1 and two counts of concealment of stolen property in violation of Code § 18.2-108. On appeal, Thomas contends the trial court erred by refusing to suppress evidence seized by the police when they searched the U-Haul truck he had rented and left stuck on the property of Olivia Kelly, Thomas' aunt. Thomas argues that the search violated his privacy rights as protected by the Fourth Amendment of the United States Constitution. Finding no error warranting reversal, we affirm.
Ordinarily, in reviewing a trial court's ruling on a motion to suppress, this Court views the evidence in the light most favorable to the prevailing party, the Commonwealth in this instance. See Greene v. Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138, 139 (1994). We examine the records of both the suppression hearing and the trial to determine whether the evidence was lawfully seized. See DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 542 (1987). "In reviewing a trial court's denial of a motion to suppress, `[t]he burden is upon [the defendant] to show that th[e] ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error.'" McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (citation omitted). In this case, however, the facts which are relevant to the suppression motion are uncontested. Therefore, we review only the legal question of whether the search of the truck violated defendant's constitutional rights. See Lawrence v. Commonwealth, 40 Va. App. 95, 100, 578 S.E.2d 54, 56 (2003).
Because our legal review is de novo, Hayes v. Commonwealth, 29 Va. App. 647, 652, 514 S.E.2d 357, 359 (1999), we may affirm on a legal ground the trial court did not reach. See Frye v. Commonwealth, 231 Va. 370, 389, 345 S.E.2d 267, 281 (1986) () (citing Thims v. Commonwealth, 218 Va. 85, 93, 235 S.E.2d 443, 447 (1977)). See also Driscoll v. Commonwealth, 14 Va. App. 449, 452, 417 S.E.2d 312, 313 (1992). But, in affirming on a ground other than that relied upon by the trial court, we necessarily limit our review and ruling to those facts the defendant does not contest because the trial court made no specific factual findings upon which our legal conclusions rely. See Sheler v. Commonwealth, 38 Va. App. 465, 475 n.1, 566 S.E.2d 203, 207 n.1 (2002) ().
The uncontested facts are that on the night of September 29, 2001, two motorcycles were stolen from the parking lot of a motel in Danville, Virginia. Defendant rented a truck from a U-Haul establishment in Martinsville, Virginia on November 30, 2001. Pursuant to the rental agreement, which defendant signed, the rental period expired on December 3, 2001. The rental agreement further stated: "Any operation of equipment outside of time agreed and allowed mileage stated is without U-Haul consent." The rental contract also prohibited defendant from using the truck in "any illegal activity."
On December 12, 2001, Pittsylvania County police officers received information that stolen motorcycles could be found inside a U-Haul truck located at 1808 Wateroak Road in Callands, Virginia in Pittsylvania County. Acting upon this information, Deputies Suzanne Divine and Scott Campbell of the Pittsylvania County police went to the Callands address and found a U-Haul truck stuck in the mud in the backyard of the Wateroak Road residence. The officers spoke with Olivia Kelly, the owner of the residence. Kelly stated she did not know who owned the truck or how it had gotten onto her property. She said she discovered the truck stuck in her yard when she returned from an out-of-town trip on December 2, 2001. Kelly told the officers she did not possess any keys to the vehicle. Upon request from the officers, Kelly signed a consent form granting the officers permission to search the U-Haul truck.
The police officers removed the locking bolt from the back door of the U-Haul truck and opened the rear compartment. Inside were six motorcycles, including the two motorcycles that had been stolen from the motel parking lot in Danville. While the police were examining the motorcycles, defendant arrived on the scene. He claimed the motorcycles belonged to him and he had documentation to prove his ownership.
At the suppression hearing defendant testified that he had parked the U-Haul truck on Kelly's property on November 30, 2001. He left Virginia a few days later, going to Ohio for a doctor's appointment. He did not return to the U-Haul truck until December 12, 2001. He had not contacted the U-Haul company about extending the term of the rental period, but he assumed from past experience that he could merely pay late charges when he returned the vehicle. Defendant testified that his cousin, DeMario Craighead, who lived with Kelly, his grandmother at the Wateroak residence, was with defendant when he rented the U-Haul truck and when the vehicle got stuck in the mud on Kelly's property. Defendant said that Craighead was the only person other than him with any right or access to the truck. Craighead testified that the key to the U-Haul truck had been left hanging on the wall in Kelly's house. No evidence at the motion hearing or at trial proved that Kelly knew the keys were there; to the contrary, the police testified at the motion hearing that Kelly said she did not have or know where the keys were.1
The trial court ruled that Kelly lacked authority to consent to the search of the truck. However, in denying defendant's motion to suppress, the court found that defendant had no expectation of privacy in the U-Haul truck because his use of the truck for illegal activity — the concealment of stolen property — was outside the terms of the rental agreement. The dispositive issues on appeal are whether defendant had a reasonable expectation of privacy in the U-Haul truck at the time of the search and whether Kelly provided the police with valid consent to the search. Because we find that defendant abandoned the U-Haul truck on Kelly's property, we conclude that he had no such expectation.
"protects people, not places." In order to effectuate the [F]ourth [A]mendment guarantees, the Supreme Court established the "exclusionary rule" which prevents evidence obtained in violation of the [F]ourth [A]mendment from being used against an accused. Yet, the protections of the exclusionary rule are only available to individuals whose [F]ourth [A]mendment rights have been violated. 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."
Commonwealth v. Ealy, 12 Va. App. 744, 750-51, 407 S.E.2d 681, 685 (1991) (citations omitted).
"An individual who has a legitimate expectation of privacy in an object nevertheless may abandon that expectation, thereby forfeiting `all standing to complain of its warrantless search and seizure.'" Al-Karrien v. Commonwealth, 38 Va. App. 35, 42-43, 561 S.E.2d 747, 751 (2002) (quoting Weschler v. Commonwealth, 20 Va. App. 162, 173, 455 S.E.2d 744, 749 (1995)). "[T]he 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." Hawley v. Commonwealth, 206 Va. 479, 482, 144 S.E.2d 314, 316 (1965) (citing Abel v. United States, 362 U.S. 217 (1960)).
Generally speaking, in Fourth Amendment analysis, the concepts of abandonment and lack of expectation of privacy go hand in hand, as the proverbial two sides of the same coin. Indeed, in Fourth Amendment parlance, the term "abandonment" is often a shorthand reference for the concept of lack of expectation of privacy.
Powell v. State, 776 A.2d 700, 710 (Md. Ct. Spec. App. 2001).
Abandonment in the context of the Fourth Amendment Commonwealth v. Holloway, 9 Va. App. 11, 18, 384 S.E.2d 99, 103 (citation omitted). "[I]ntention is a prime factor in determining whether there has been an abandonment." Hawley, 206 Va. at 483, 144 S.E.2d at 317. "An intent to retain or abandon an expectation of privacy is determined by objective standards and `may be inferred from words, actions and other objective facts.'" Hardy v. Commonwealth, 17 Va. App. 677, 680, 440 S.E.2d 434, 436 (1994) (citation omitted). The relevant inquiry is whether, at the time of the search, a person's words and actions, or other known objective facts, demonstrate his or her intent to abandon a privacy interest in the property in question.
To demonstrate abandonment, the government must establish by a preponderance of the evidence that the defendant's voluntary words or conduct would lead a reasonable person in the...
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