Opinion
Record No. 0803-91-2
December 8, 1992
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND JOSEPH F. SPINELLA, JUDGE DESIGNATE.
John L. Taylor, III, for appellant.
John H. McLees, Jr., Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Benton, Coleman, and Fitzpatrick.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
William Henry Johnson was convicted of possession of cocaine with intent to distribute and was sentenced to ten years in prison with six years suspended. Johnson contends that the trial judge erred in denying his motions (1) to suppress evidence obtained in a warrantless search, and (2) to strike the evidence because of the Commonwealth's failure to prove intent to distribute. We affirm the conviction.
I.
At the hearing on the motion to suppress, the evidence proved that police officers Deaton, Tyler, and French separately responded to a call from Amanda Brower, who wanted to retrieve her personal property from a house. As Officer Deaton arrived at the house, he saw an automobile drive away. Brower told Deaton that the owner of the house was driving the automobile. Brower also told Deaton that the owner of the house would not allow her to remove her personal property and that there was an outstanding felony warrant against the owner for stealing a check from her. Officer French drove away to stop the owner but could not locate the automobile.
Brower further told Deaton that her name was on the lease for the house and that she had recently moved away. Deaton knocked on the front door of the house. When no one answered, Deaton asked Brower if she was sure her name was on the lease. She responded affirmatively. He then asked if she wanted him to help her enter the house to retrieve her property. She told him she did. Deaton then went to a front window and removed the window screen. As Deaton was doing this, Officer Tyler, who had walked down a walkway to the rear of the adjacent house, contacted Deaton by radio and told him someone had come out the back door.
Officer Tyler testified that she was standing in the yard of the adjacent house when she saw Johnson run out the back door in his underwear with a package of plastic baggies. Johnson put the package under a bush and then ran back inside. Tyler testified that because she recognized the plastic baggies to contain cocaine, she entered the yard and removed the baggies. A few seconds after Johnson ran into the house, he opened the front door and allowed Brower to enter and retrieve her property.
II.
Johnson contends the officers violated his fourth amendment rights when Deaton raised the storm window and again when Tyler walked from the front of the house to the backyard. As the proponent of a motion to suppress, Johnson had "the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure." Rakas v. Illinois, 439 U.S. 128, 131 n. 1 (1978). It is a fundamental principle that "the Fourth Amendment protects people from unreasonable government intrusions [of] their legitimate expectations of privacy." United States v. Chadwick, 433 U.S. 1, 7 (1977). The inquiry on a motion to suppress "requires a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect." Rakas, 439 U.S. at 140.
The Commonwealth argues that Johnson had no expectation of privacy in the house. We disagree. The evidence proved that the house was owned by five persons, including Johnson's uncle and Johnson's mother. The house was occupied by Johnson's uncle, Johnson's mother, and Johnson. Although Johnson did not own the house, Johnson resided in the house and paid rent.
The evidence proved no direct link, however, between Deaton's removal of the screen and Tyler's discovery of the cocaine. Although Deaton removed the window screen based only upon Brower's oral assertion that she leased the house, that trespass did not result in the discovery of the cocaine. Johnson exited the house to secrete the drugs because of the officers' presence on the premises, not because the officers were making an illegal entry into his home. The evidence showed that Johnson exited the home either before or simultaneously with Deaton raising the storm window, not as a response thereto. The cocaine was discovered by Tyler when Johnson went into the yard to discard the drugs. The evidence clearly proved that Tyler was standing in the backyard of the adjacent house when she saw Johnson leave the house with the bags of cocaine.
Furthermore, the facts do not support Johnson's contention that his fourth amendment rights were violated when Tyler walked to the backyard of the adjacent property. Tyler testified that the walkway between the house where Johnson resided and the adjacent property led to the backyard of the adjacent house. When Tyler walked to the backyard, she stayed in the yard of the adjacent house on the far side of the fence. The trial judge found that the walkway between the houses led to the backyard of the adjacent residence. The evidence clearly supports that finding.
Johnson also did not establish the right to exclude others from the walkway. On the contrary, the evidence proved that the land between the houses was frequently used by the neighbors and by whomever the neighbors chose to permit to pass. Although Johnson's uncle testified that the fence at the rear of the houses was actually inside his own property, he also testified that the landlord of the adjacent house maintained the fence. He further testified that the owner of the adjacent house always used the walkway to gain access to the backyard of the adjacent house. Consequently, Johnson had no reasonable expectation of privacy from observation by Officer Tyler while on the walkway or from the adjoining backyard. Thus, Johnson can assert no fourth amendment violation based on Tyler's presence on a walkway between the houses or in the neighboring yard where she saw Johnson place the cocaine under the bush.
Tyler was six feet away from Johnson when he ran out the door carrying a cellophane bag of drugs. Tyler testified that the package was about the size of a softball and that she immediately recognized it to contain cocaine. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection."Katz v. United States, 389 U.S. 347, 351 (1967). We conclude that the trial judge did not err in denying the motion to suppress.
III.
The physical and the testimonial evidence in the record support the trial judge's finding of intent to distribute.
In determining whether a defendant is guilty of possession with the intent to distribute, the trier of fact is entitled to weigh all the circumstances in a given case. The quantity of narcotics possessed is only one factor to be considered. Thus, a conviction for possession with the intent to distribute may be upheld even though the quantity of drugs seized is consistent with personal use.
Stanley v. Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 14-15 (1991) (citations omitted).
Approximately sixty-four individual baggies of cocaine were found in the plastic bag, together with other large empty plastic bags, a large number of empty corners cut from sandwich bags, and a large number of tops from sandwich bags that remained after the corners had been cut. Testimony established that all these items were consistent with preparation for packaging cocaine for street distribution. Consequently, the evidence supports the trial court's finding of intent to distribute.
For these reasons, we affirm the conviction.
Affirmed.