Commonwealth v. Simpson

COMMONWEALTH OF VIRGINIA v. THEODORE KEITH SIMPSON, JR.

Record No. 1348-16-4

COURT OF APPEALS OF VIRGINIA

JANUARY 17, 2017

UNPUBLISHED

Present: Chief Judge Huff, Judge Humphreys and Senior Judge Annunziata Argued by teleconference

MEMORANDUM OPINION^* BY JUDGE ROBERT J. HUMPHREYS

FROM THE CIRCUIT COURT OF STAFFORD COUNTY

Victoria A.B. Willis, Judge

Aaron J. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellant.

Christopher M. Reyes (Spencer, Meyer, Koch & Cornick, PLC, on brief), for appellee.

In this interlocutory appeal by the Commonwealth of Virginia pursuant to Code § 19.2-398(A)(2), the Commonwealth challenges the ruling of the Circuit Court of Stafford County (the "circuit court") granting a motion to suppress the evidence in favor of Theodore Keith Simpson, Jr. ("Simpson").

I. BACKGROUND

In reviewing a circuit court's decision to grant a motion to suppress, this Court "view[s] the evidence in a light most favorable to [Simpson], the prevailing party below, and we grant all reasonable inferences fairly deducible from that evidence." Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). "On appeal, we consider the entire record in determining whether the trial court properly [ruled on a] motion to suppress." Patterson v. Commonwealth, 17 Va. App. 644, 648, 440 S.E.2d 412, 415 (1994).

So viewed, the evidence established that on November 21, 2015, First Sergeant Robert Grella ("Grella") and two other officers were surveilling a motel known for illicit drug activity. After observing a car with two occupants enter the motel parking lot and stay for around five minutes before departing, Grella suspected involvement in a drug transaction and followed the car. Around 10:15 p.m., Grella conducted a traffic stop of the car based on his observation of an object dangling from the rearview mirror and a cracked windshield.¹ The driver stepped out of the vehicle at Grella's request and spoke with him at the rear of the car.

Meanwhile, Deputy Mervil ("Mervil") arrived on the scene and began speaking with Simpson, who was seated in the front passenger seat. Mervil relayed Simpson's name to dispatch, which then advised that Simpson was wanted in Spotsylvania County.² Grella then asked Simpson to step out of the vehicle and detained him at the rear of the car, leaving the passenger door open. By this time, Sergeant Volpe ("Volpe") had also arrived on scene. While standing outside the open passenger door, Volpe advised Grella that he observed "a possible weapon or gun in the vehicle." Grella asked Volpe to point it out because it was "quite difficult" for him to see it. Volpe shined his flashlight on the gun located in a recess in the center consoleunderneath the front dash and behind two cup holders, one of which contained a large fast food cup.³

Based on the location of the gun in the car, Grella determined that he had probable cause to believe Simpson was carrying a concealed weapon. After removing the gun from the car, Grella learned from dispatch that Simpson was a convicted felon. Simpson was read his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and he then admitted that he was a convicted felon and that the gun Grella seized belonged to him.

The grand jury indicted Simpson for possession of a firearm while being a convicted felon and possession of a concealed weapon. Before trial, Simpson moved to suppress all evidence relating to the indictments on the grounds that such evidence was obtained in violation of Simpson's federal and state constitutional protections against unreasonable searches and seizures. At a hearing on that motion, the Commonwealth primarily asserted that Simpson lacked a reasonable expectation of privacy in the vehicle and thus lacked standing to object on constitutional grounds to either the search of the vehicle or the seizure of the gun; the Commonwealth further argued that in any event, the gun was found in "plain view" and therefore no Fourth Amendment violation occurred.

The circuit court found that Simpson had standing to challenge Grella's seizure of the gun, that the plain view doctrine did not justify that seizure, and that the seizure violated Simpson's constitutional rights. Accordingly, the circuit court granted Simpson's motion to suppress. This interlocutory appeal by the Commonwealth followed.

II. ANALYSIS

This Court will not reverse the circuit court's ruling on a motion to suppress unless it is plainly wrong. Grimstead, 12 Va. App. at 1067, 407 S.E.2d at 48. In reviewing the circuit court's decision, this Court is "bound by the trial court's findings of historical fact unless 'plainly wrong' or without evidence to support them and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers." McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc). In contrast, the circuit court's application of defined legal standards—that is, "whether the rule of law as applied to the established facts is or is not violated"—is subject to de novo review. Ornelas v. United States, 517 U.S. 690, 699 (1996) (quoting Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982)).

The essential issue raised in this appeal is whether Grella's actions violated Simpson's Fourth Amendment rights. Before we can address the merits of that issue, this Court must determine de novo whether Simpson had standing to challenge either or both the search of the car and the seizure of the gun.

A. Simpson's Standing to Assert a Constitutional Violation

The Fourth Amendment of the United States Constitution, as incorporated in and applied to the states through the Fourteenth Amendment, provides, in part, that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."⁴ Only someone whose individual rights have been violated by government action may raise a Fourth Amendment challenge because "Fourth Amendment rightsare personal rights which . . . may not be vicariously asserted." Alderman v. United States, 394 U.S. 165, 174 (1969). Originally a separate inquiry, the United States Supreme Court has held that this Fourth Amendment standing requirement is "subsumed under substantive Fourth Amendment doctrine." Rakas v. Illinois, 439 U.S. 128, 134 (1978). Accordingly, "the question is whether the challenged search and seizure violated the Fourth Amendment rights of a criminal defendant . . . . That inquiry in turn 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." Id. at 140.

The Fourth Amendment "protects two types of expectations, one involving 'searches,' the other 'seizures.' A 'search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A 'seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property." United States v. Jacobsen, 466 U.S. 109, 112 (1984). While in most cases, a party aggrieved by a seizure will also be aggrieved by a search, such is not necessarily the case and in this instance, it is critical to parse the search and seizure to identify the exact Fourth Amendment violation, if any, suffered by Simpson.

Turning first to whether Simpson's Fourth Amendment rights were violated by Grella's search of the car, we conclude that they were not because, under the totality of the circumstances, Simpson did not have a reasonable expectation of privacy or property interest in the areas of the car searched.

Simpson was merely a passenger in a car that he did not own or have a right to possess—"the fact that [Simpson was] 'legitimately on [the] premises' in the sense that [he was] in the car with . . . permission . . . is not determinative of whether [he] had a legitimate expectation of privacy in the particular areas of the automobile searched." Rakas, 439 U.S. at 148 (quotingJones v. United States, 362 U.S. 257, 267 (1960)). Simpson was the passenger of a nonowner driver, and the record is silent as to whether the driver did or did not have permission to use the car.⁵ Even applying the factual inference drawn by the circuit court that the driver had permission to use the car and invited Simpson to be a passenger, Simpson nonetheless had no right to exclude others from the car or any part thereof. No facts before the circuit court indicated that Simpson had any expectation that the car and its contents would be free from governmental invasion or that he exercised control over any portion of the car. Simpson was thus nothing more than a temporary passenger in another's car. Cf. Barnes v. Commonwealth, 234 Va. 130, 135, 360 S.E.2d 196, 200 (1987) (holding that a defendant had no standing to challenge the search of an apartment where defendant had permission to be present in the apartment, but did not have a key, keep property there, or have any right to exclude others).

However, since the United States Supreme Court's 2012 decision in United States v. Jones, 565 U.S. 400, 409 (2012) ("[T]he Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test."), standing to assert the protections of the Fourth Amendment exist if one has either a reasonable expectation of privacy or a common-law property interest in the place searched or the things seized. Simpson asserted a property interest in the gun, and the Commonwealth implicitly concedes as much by the nature of the charges it brought against him. We therefore hold that the circuit court was correct in determining that Simpson had constitutional standing to object to the seizure of the gun, though not the search of the vehicle.

Concluding as we do that Simpson has standing to object to the warrantless seizure of the gun, we now turn to whether any...