Opinion
Record No. 2056-91-1
August 17, 1993
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH L. CLEAVES MANNING, JUDGE.
Brenda C. Spry, Senior Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Eugene Murphy, Assistant Attorney General (Mary Sue Terry, Attorney General; Margaret Ann B. Walker, on brief), for appellee.
Present: Judges Baker, Willis and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Timothy Gregory Epperson (appellant) appeals from a judgment of the Circuit Court of the City of Portsmouth (trial court) that approved jury verdicts convicting him for possession of cocaine with the intent to distribute and possession of marijuana. Appellant contends that the trial court erroneously refused to suppress evidence of the drugs found in his coat during an inventory search of an automobile in which he had been seated, and further asserts that the evidence was insufficient to support his convictions. Finding no error, we affirm the judgment of the trial court.
We recite only the evidence essential to an understanding of this opinion and state it in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
On March 11, 1991, at approximately 5:30 p.m., Portsmouth police officer W.T. Shipley received a radio broadcast that a shot had been fired from a vehicle, license plate HML-662, occupied by three black males. He proceeded to the area and located the car "backed in" a parking space in front of an apartment. The car had been reported stolen. Two individuals occupied the front seat and appellant was alone in the back seat. Shipley called for "backup units" and kept the vehicle "under observation" until they arrived. The officers then approached the vehicle and told the occupants "to keep their hands in sight." Appellant had a "stadium coat across his lap." Each occupant was ordered to exit the vehicle and was patted down for weapons. Appellant left his coat when he exited the vehicle. The officers "looked in the vehicle" and patted down the coat for a firearm, but did not find one.
The driver of the car was then arrested on an outstanding warrant. The car was impounded, "[a]s per policy of the police department," and an inventory search was conducted. Appellant's coat, lying on the back seat of the vehicle, was also searched. In its pockets, police found a box of Arm Hammer baking soda, twelve individual baggies of crack cocaine, seven baggies of marijuana, approximately thirty unused baggies and appellant's identification. After being arrested and advised of his rights, appellant stated, "It is my coat but it's not my dope." Prior to trial, appellant's motion to suppress this evidence was denied.
Detective K.A. Armstrong testified as an expert in the packaging, use and distribution of narcotics. She explained that baking soda was used to manufacture crack cocaine and testified that possession of twelve individual baggies of crack cocaine was inconsistent with personal use. She also stated that the packaging of the drugs in appellant's coat was consistent with common distribution methods in the City of Portsmouth.
Appellant testified that he did not know the drugs were in his coat and had no idea how they got there.
I. The Search
During oral argument, appellant conceded that the police lawfully seized the vehicle in which his coat was found. He further conceded that, having lawfully seized the vehicle, the police properly conducted an inventory search. See South Dakota v. Opperman, 428 U.S. 364 (1976). He argues, however, that because the search of the coat he left in the vehicle was made without a warrant, evidence of illegal activity discovered by that search should have been suppressed. We disagree.
In United States v. Hargrove, 647 F.2d 411 (4th Cir. 1981), the Fourth Circuit Court of Appeals affirmed the denial of Hargrove's motion to suppress evidence found in a search of a paper bag left in a stolen car. The Court noted that the burden was on Hargrove to establish his standing to contest the search at the suppression hearing. Id. at 412. Because the paper bag in which contraband was found was located in a stolen vehicle, Hargrove failed to show that he had "a legitimate expectation of privacy" and, therefore, lacked standing to object to a search of the vehicle. Id. Moreover, the Court stated that one who has no legitimate claim to the stolen car cannot reasonably assert an expectation of privacy in a bag found in that automobile. Id.
Whether a person has an expectation of privacy in a container that is searched is not determined by his subjective beliefs. His expectation must be objectively reasonable. A person who cannot assert a legitimate claim to a vehicle cannot reasonably expect that the vehicle is a private repository for his personal effects, whether or not they are enclosed in some sort of a container, such as a paper bag. See Rakas, 439 U.S. at 151-52, 99 S.Ct. at 423-24 (Powell, J., concurring); cf. United States v. Smith, 621 F.2d 483, 486-88 (2nd Cir. 1980). Consequently, Hargrove lacked standing to challenge the search of the bag and the seizure of the cocaine it contained.
Id.
We hold that appellant did not have standing to object to the search of the stolen vehicle or the coat he left lying on the back seat. See also Josephs v. Commonwealth, 10 Va. App. 87, 91 390 S.E.2d 491, 493 (1990).
Even if appellant had standing to object to the search, he has not shown a Fourth Amendment violation. The police possessed sufficient information to justify impoundment of the vehicle and to conduct an inventory search. The right to conduct such a search includes the right to search containers found inside the vehicle for inventory purposes; therefore no Fourth Amendment violation occurred when the officers searched the pockets of appellant's jacket, which he left in the impounded vehicle. Hogan v. Commonwealth, 15 Va. App. 355, 365, 423 S.E.2d 841, 848 (1992).
II. Sufficiency
Appellant admitted that the coat in which the contraband was found belonged to him. Appellant's identification was found inside the coat. Prior to exiting the stolen vehicle, appellant was holding the coat across his lap. No evidence established that any other person had access to the coat. The quantity of cocaine found in the coat was shown to be in excess of an amount ordinarily possessed for one's personal use. Evidence of the quantity seized, the packaging and other items sufficiently established an intent to distribute. See Monroe v. Commonwealth, 4 Va. App. 154, 156, 355 S.E.2d 336, 337 (1987);Colbert v. Commonwealth, 219 Va. 1, 4, 244 S.E.2d 748, 749 (1978).
For the reasons stated, we affirm the judgment of the trial court.
Affirmed.