Williams v. Commonwealth of Virginia, Record No. 2217-04-4 (Va. App. 6/20/2006)

• Decision Date: 20 June 2006
• Docket Number: Record No. 2217-04-4.
• Citation: Williams v. Commonwealth of Virginia, Record No. 2217-04-4 (Va. App. 6/20/2006), Record No. 2217-04-4. (Va. App. Jun 20, 2006)
• Court: Virginia Court of Appeals
• Parties: MICHAEL ANTWUAN WILLIAMS, v. COMMONWEALTH OF VIRGINIA.

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Unpublished Opinion

MICHAEL ANTWUAN WILLIAMS, v.COMMONWEALTH OF VIRGINIA.

Record No. 2217-04-4.

Court of Appeals of Virginia, Alexandria.

June 20, 2006.

Appeal from the Circuit Court of Stafford County, Ann Hunter Simpson, Judge.

Brent A. Jackson(Olaun A. Simmons; The Jackson Law Group, on brief), for appellant.

Michael T. Judge, Assistant Attorney General(Judith Williams Jagdmann, Attorney General, on brief), for appellee.

Present: Judges Benton, Haley and Senior Judge Bumgardner.

MEMORANDUM OPINION^*

JUDGE JAMES W. HALEY, JR.

Convicted of transporting cocaine with intent to distribute, transporting heroin with intent to distribute, and possession of a firearm while in possession of drugs, Michael Antwaun Williams maintains the trial court"committed reversible error by holding that appellant, a passenger in a rental vehicle, had no standing to challenge the traffic stop of said vehicle" and in accordingly denying a motion to suppress.¹We affirm.

I.STANDARD OF REVIEW

In determining whether or not the trial court properly denied Williams' motion to suppress, "we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial."Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598(2004)(citingBass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 923-24(2000)).

II.FACTS

The uncontested facts are as follows:

At approximately 1:20 a.m. on March 24, 2003, Stafford County Sheriff's Deputy Kevin Gary observed a vehicle with its interior lights (including the "dome" light) on traveling southbound on Interstate 95.Deputy Gary pulled up next to the vehicle and witnessed the "passenger rolling what . . . appeared to me to be a marijuana cigarette."Gary testified the passenger "was pouring it — pouring something out of a bag into it, into his cupped hand . . . proceeded to roll the end of the cigarette and then light it."He described the rolled cigarette as "tapered on each end" with "twisted" ends.The deputy testified that he was familiar with marijuana, seeing the same "once a week" as either an arresting or back-up officer.Gary continued:

Since I've been in law enforcement, I've never come across anything that was hand rolled other than marijuana cigarettes.I've got family members who work on tobacco farms who roll personally.It's not rolled the same, and it doesn't look the same.

Based on his observations, Deputy Gary pulled behind the vehicle, switched on his emergency equipment, and performed a traffic stop.As he approached, all the windows were down, and he smelled marijuana coming from the vehicle.He asked the driver for her license and registration.She provided a driver's license, which identified her as Twana Davis.She stated the car was rented and produced a Hertz rental agreement that was issued on March 21, 2003 at 8:20 p.m., was to terminate one day later — March 22, 2003 — at the same time, and named one Crystal James as the lessee and sole authorized driver.During the stop, subsequent arrest, and seizure, neither Davis nor appellant offered any information to explain how either had come into possession of the vehicle.

The agreement contained the following language: "No `additional authorized operators' without Hertz written approval," and "WARNING: You must obtain Hertz's prior written approval for any additional authorized operators."A representative of Hertz testified at trial that the vehicle was "rented 3-21, [with] charges for one day, and you're supposed to return on 3-22, so one day."He confirmed Crystal James was the only authorized driver.

At the scene, Gary also asked the appellant for identification.After appellant stated that he did not have an ID, Gary asked him to step out of the vehicle.As appellant opened the door and began to exit, "two little red plastic baggies" fell from under his leg into the floorboard of the vehicle.Gary testified that "[t]hey appeared to be marijuana," as later analysis proved.Gary subsequently arrested appellant for possession of marijuana.A search of appellant incident to this arrest produced $2,800 in cash and a brick of cocaine.A subsequent search of the vehicle garnered a half-kilo of heroin, $18,000 in cash, a loaded .357 revolver, and various other drug paraphernalia and residue.

As here relevant, appellant moved to suppress "all items seized as a result of the illegal stop."Appellant offered no evidence at the suppression hearing.Following argument, the trial court denied the motion, holding that defendant was "without standing to challenge the stop."²

III.ANALYSIS

An individual may only assert a Fourth Amendment violation if he has "a reasonable expectation of privacy" in the place searched.Rakas v. Illinois, 439 U.S. 128, 130(1987);DeLong v. Commonwealth, 234 Va. 357, 363, 362 S.E.2d 669, 672(1987);Hardy v. Commonwealth, 17 Va. App. 677, 680, 440 S.E.2d 434, 436(1994).

In support of a motion to suppress, the defendant has the burden of proving he has a reasonable expectation of privacy in the place searched.Rawlings v. Kentucky, 448 U.S. 98, 104(1980);Barnes v. Commonwealth, 234 Va. 130, 135, 360 S.E.2d 196, 200(1987);Sharpe v. Commonwealth, 44 Va. App. 448, 455, 605 S.E.2d 346, 349(2004).

In order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched . . . [and] . . . a defendant must demonstrate . . . that his expectation is reasonable; i.e., one that has "a source outside of the Fourth Amendment, either by reference to concepts of real property or personal property law or to understandings that are recognized and permitted by society."

Minnesota v. Carter, 525 U.S. 83, 88(1998)(citations omitted).

In Josephs v. Commonwealth, 10 Va. App. 87, 91, 390 S.E.2d 491, 492(1990)(en banc), the appellant was a passenger in a rental car, which had been rented to a third party who was not present in the vehicle.The rental agreement showed that neither the appellant nor the driver was an authorized driver, that the vehicle was not to be driven outside Florida, and that "the occupants were not authorized to have possession of the vehicle."Appellant was charged with theft of the vehicle, and a subsequent search of the same produced 130 pounds of marijuana.Appellant filed a motion to suppress.

This Court formulated the issue presented as follows:

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.

Id. at 91, 390 S.E.2d at 493.

Noting that a stop of a motor vehicle is a seizure, this Court resolved the above issue by holding as follows:

Having only an illegitimate, wrongful, and unreasonable expectation of privacy in the stolen vehicle, Josephs lacks standing to object to the stop of the car.Josephs' expectation of privacy in her own person does not confer automatic standing upon her to contest the stopping of the vehicle in which she was riding when she had no reasonable expectation of privacy in it.

Id. at 98, 390 S.E.2d at 497(emphasis added).

As this Court further explained, while a passenger may have a legitimate expectation of privacy in their person when a vehicle is stopped, that principle "presupposes the occupant's rightful presence in the vehicle.Otherwise the privacy expectation is not legitimate."Id. at 96, 390 S.E.2d at 496.Rather, an occupant has the burden of establishing a "property []or a possessory interest" in the vehicle as a condition precedent to a Fourth Amendment challenge.Id. at 97, 390 S.E.2d at 496."`[M]ost 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.'"Id. at 92, 390 S.E.2d at 493(quoting4 W. LaFave, Search and Seizure§ 11.3(e)(2d ed. 1987)).This Court's analysis flowed from Rakas, where appellants occupied a vehicle they"neither owned nor leased" and "asserted neither a property nor possessory interest in the automobile."439 U.S. at 140, 148.Finally, this Court specifically rejected the minority's view that there was a distinction between "standing to challenge a search of an automobile in which she was riding and her standing to challenge a stop of the same automobile," and maintaining standing for the later remained.Josephs, 10 Va. App. at 102, 390 S.E.2d at 499(Barrow, J., dissenting)(emphasis in original).

Though dealing with standing as to a search of a vehicle rather than the stop of the same, in Bell v. Commonwealth, 264 Va. 172, 190, 563 S.E.2d 695, 708(2002), the appellant asserted a reasonable expectation of privacy in a vehicle because "he had been driving it, had the keys in his possession and had parked it in a parking lot, leaving it locked with his belongings inside."The vehicle had been impounded by a lien-holder.The owner had not given appellant permission to use the vehicle; the owner's girlfriend had taken the car from the impoundment lot; she had twice given appellant permission to use it; appellant had returned the vehicle to her once, but not the second time, despite her requests that he do so.

There, the Virginia Supreme Court held that the defendant

bore the burden of proving he had a legitimate expectation of privacy in the vehicle so as to confer standing to challenge the search.He did not carry that burden.Bell did not own the vehicle, and he did not establish that he was authorized to have the car in his possession when it was searched.SeeUnited States v. Wellons, 32 F.3d 117, 119(4th Cir.1994)(unauthorized driver of rental had no legitimate expectation of...