Watts v. Commonwealth Of Va.

• Citation: 57 Va.App. 217,700 S.E.2d 480
• Decision Date: 02 November 2010
• Docket Number: Record No. 2644-09-1.
• Court: Virginia Court of Appeals
• Parties: Antonio D. WATTS v. COMMONWEALTH of Virginia.

57 Va.App. 217

700 S.E.2d 480

Antonio D. WATTS

v.COMMONWEALTH of Virginia.

Record No. 2644-09-1.

Court of Appeals of Virginia,Chesapeake.

Nov. 2, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

From the Circuit Court of the City of Norfolk Jerrauld C. Jones, Judge. ¹

Lenita J. Ellis for appellant.

Gregory W. Franklin, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: ELDER and HUMPHREYS, JJ., and COLEMAN, Senior Judge.

ELDER, Judge.

Antonio D. Watts (appellant) appeals his bench trial convictions for possession of cocaine in violation of Code § 18.2-250 and possession of marijuana in violation of Code § 18.2-250.1. On appeal, he contends the trial court erroneously concluded the search that yielded the cocaine and marijuana did not violate his Fourth Amendment rights. He also contends the evidence was insufficient to support his convictions because it did not prove he constructively possessed the drugs found hidden in the car he was driving. We hold the trial court's denial of the motion to suppress was error. Thus, we reverse appellant's convictions and remand for further proceedings consistent with this opinion.

I. BACKGROUND

On December 8, 2007, uniformed Norfolk Police Officer S.A. Maxey was patrolling a Norfolk Redevelopment & Housing Authority (NRHA) property in his marked police vehicle when he saw a gold car with a peeling inspection sticker, a missing front license plate, and a temporary rear license tag. As Officer Maxey watched, the vehicle left the NRHA property, pulled into the driveway and parking area of a private two- or four-unit apartment building on a public street adjacent to the NRHA property, and came to a stop.

Officer Maxey described the area where the gold car parked as “a giant slab of concrete” between the apartment building, on one side, and the public street and sidewalk, on the other side. He said the slab contained “no actual marked [parking] spots” but permitted numerous vehicles to park in a fashion so as not to block any other vehicles parked on the slab. At the time the gold car pulled into the lot, the vehicles already parked in the lot “were all facing as if they pulled in from the street facing the [apartment] building,” such that they were perpendicular to the building and the street. The driver of the gold car parked his vehicle in the same fashion. The manner in which the driver parked was not “blocking another car,” but Officer Maxey described the gold car as “actually ... occupying one of the [unmarked] spots of the building,” thereby preventing anyone else from being able to park in the location in which it was parked.

Officer Maxey observed the vehicle's driver, appellant, exit the car and walk toward the apartment complex and away from the street. He was “walking normally” and did not “appear[ ]” to “know [Officer Maxey] [was] there.” Officer Maxey had not activated his lights or siren at that time and believed appellant had stopped in the parking lot of the private apartment building of his own accord. Officer Maxey then stopped his vehicle on the public street adjacent to the apartment building and called out to appellant, who was near the gold car's front bumper and about ten feet away from Officer Maxey at the time. Appellant turned around and saw Officer Maxey. In what Officer Maxey described as a “consensual[ ]” encounter lasting about a minute, appellant indicated that the gold car was his, “that he had just bought it,” and he admitted he did not have a driver's license. During that exchange, Officer Maxey observed a bulge in appellant's front waistband area, which, based on his training and experience, he thought might be a firearm. When Maxey “told [appellant] [he] was going to pat him down for weapons,” appellant fled, and Maxey was unable to keep up. Officer Maxey did not know appellant's name at that time.

When Officer Maxey returned to the vehicles after the foot chase, “several of the residents who lived at the units actually had came out [sic].” Officer Maxey “asked any of them if this [gold] car belonged to them or if they had seen the car in the driveway before, and they stated it did not [sic].” Officer Maxey did not know whether “any special decals or stickers [were] required for the residents to park there to show that it's exclusive to the residents of that building.” Although appellant's counsel inquired whether Officer Maxey talked to anyone who “live[d] in,” “own[ed] or manage[d]” the apartment complex to determine whether appellant's vehicle “could” or “should not” be there, Officer Maxey referred only to the inquiries he made to the residents who had come outside and made no mention of attempting to contact management.

At some point, Officer Maxey “ran the 30-day tag” on appellant's vehicle. He testified that “if [he] remember[ed] right, it came back to a car company,” and he “wasn't sure if it hadn't been entered yet or not.” Officer Maxey then determined that he was going to have appellant's vehicle towed because it was occupying a resident's spot, and he searched the vehicle pursuant to that plan. He saw no contraband in plain view in the vehicle; however, he immediately noticed the center console of the vehicle “looked strange” and “was not setting as if it was from the factory.” Maxey testified that, based on his past experience, “usually when stuff” which “comes from the factory ... bolted down” “is pried up like that, people use it as a place to hide or conceal different kinds of contraband.” When he lifted the loose center console, he found a baggie containing crack cocaine and a baggie containing marijuana. Using some of the other contents of the car, including two photographs, Officer Maxey was able to confirm the driver who fled from him was Antonio D. Watts, appellant, who was then charged with the instant offenses.

Appellant moved to suppress the drugs as the product of an unreasonable search. At a hearing on the motion, the Commonwealth argued appellant abandoned the vehicle when he fled and, thus, that he lacked standing to contest the search. ² Appellant responded that the evidence failed to prove he abandoned the vehicle because he stopped the vehicle and got out before Officer Maxey approached him and no evidence contradicted that “it was parked in the manner in which [appellant] intended to park in the des[ti]nation he was driving to.” The trial court denied the motion to suppress, stating only, “I don't think there was an unreasonable search here under all the circumstances.”

At trial, the Commonwealth presented evidence in keeping with the above. Appellant testified, averring he did not tell Officer Maxey the car was his. He claimed he had borrowed the car from a friend and did not know the drugs were in the car. The trial court rejected appellant's testimony, convicting him of the charged offenses, and appellant noted this appeal.

II. ANALYSIS

A. MOTION TO SUPPRESS

On appeal of a ruling denying a motion to suppress, the appellant has the burden to show that the trial court's ruling constituted reversible error. See Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002). Our examination of this issue “presents a mixed question of law and fact that we review de novo.... In making such a determination, we give deference to the factual findings of the trial court and independently determine whether the manner in which the evidence was obtained [violated] the Fourth Amendment.” Id. (citations omitted). The trial court is not required to make explicit findings of fact, and if it does not, we view the evidence in the light most favorable to the prevailing party, here the Commonwealth, granting to the evidence all reasonable inferences fairly deducible therefrom. Satchell v. Commonwealth, 20 Va.App. 641, 648, 460 S.E.2d 253, 256 (1995) (en banc).

Although “the Fourth Amendment protects people, not places,” from unreasonable searches and seizures, Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967), “[the] capacity to claim [its] protection ... depends ... upon whether the person ... has a legitimate expectation of privacy in the invaded place [or object],” Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387, 401 (1978).

An individual who has a legitimate expectation of privacy in an object nevertheless may abandon that expectation, thereby forfeiting “[the ability] to complain of its warrantless search and seizure.” Although the individual whose property was searched bears the burden of proving a legitimate expectation of privacy in the item searched, the burden of proving abandonment is on the government.

Al-Karrien v. Commonwealth, 38 Va.App. 35, 42-43, 561 S.E.2d 747, 751 (2002) (quoting Wechsler v. Commonwealth, 20 Va.App. 162, 173, 455 S.E.2d 744, 749 (1995)). ³ [6] If a court determines the defendant had a right of privacy in the place searched and the Commonwealth failed to prove he abandoned that right, the defendant must then establish a prima facie case that a warrantless search of the item has occurred. United States v. Thompson, 409 F.2d 113, 117 (6th Cir.1969); see Megel v. Commonwealth, 262 Va. 531, 534, 551 S.E.2d 638, 640 (2001) (noting warrantless searches are presumptively unreasonable). If the defendant establishes the search was conducted without a warrant, the burden shifts to the Commonwealth to prove an exception to the warrant requirement. Simmons v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989).

Here, the trial court held without elaboration that “[it did not] think there was an unreasonable search ... under all the circumstances.” The Commonwealth does not dispute that appellant had a reasonable expectation of privacy in the vehicle when Officer Maxey first approached him, but it contends he abandoned that expectation when he fled from Officer Maxey and, thus, that the trial court correctly denied the motion to suppress.

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