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Full Opinion
Kentora Delvontae Atkins, appellant, was convicted, in a bench trial, of possession of heroin, in violation of Code § 18.2-250, possession of a firearm while in possession of heroin, in violation of Code § 18.2-308.4(B), and possession of a firearm by a convicted felon, in violation of Code § 18.2-308.2. On appeal, he contends the trial court erred in: 1)
BACKGROUND
Special Agent P.N. Gallaceio of the Virginia State Police and Norfolk Police Officer W.K. Winningear, on September 3, 2008, stopped a vehicle for a defective equipment violation because the license plate bulb was burned out. While the stop was in progress, appellant, the right rear passenger, âturned aroundâ several times and Gallaceio lost sight of appellantâs head âas if he was bending over in the seat.â
After approaching the car, Gallaceio asked appellant for identification. Appellant stated that he had none. Gallaceio asked the front seat passenger for her identification, and she gave him a driverâs license. Appellant then handed his license to Gallaceio. Gallaceio noticed that appellant did not appear nervous at that time. Gallaceio gave the licenses to Officer Winningear. It was then discovered that the front female passenger had outstanding warrants. For that reason, she was removed from the car. During this time, appellant was âconstantly turning around and observing [the police] and [their] actions.â
While appellant was still in the car, Gallaceio watched him as he tried to light a cigarette. Gallaceio observed that appellant was having difficulty doing so because he was âshaking unbelievably in his seat.â Gallaceio testified, âin my 13 years of experience watching traffic stops, Iâd never seen anybody struggle to light a cigarette as much as [appellant] did.â
After the driver got out of the vehicle, he and Officer Winningear engaged in a brief conversation before the driver abruptly retrieved his keys from the console and started the engine. In trying to keep the driver from leaving, Winningear struggled with the driver, and the driver fled. The driver was not apprehended that evening.
When appellant got out of the car, Gallaccio observed needle marks on appellantâs arms. He also saw that appellantâs hands were âballed up,â there was âtension in his arms,â and he appeared nervous. When asked why, appellant responded, âbecause cops around here beat people up for no reason.â Appellant then placed his hands in his pockets. Gallaccio advised him to take his hands out of his pockets and that he was going to pat him down for weapons. Appellant was instructed to walk to the back of the police vehicle, but he continued to walk past that vehicle. When he was passing another police vehicle, Special Agent Gallaccio grabbed him by the back of his shirt because he âthought something was afoot.â Gallaccio testified that he thought appellant was going to run. As Gallaccio grabbed him, appellant took his hands out of his pockets and dropped a white pill bottle that contained eleven capsules of heroin. After a brief struggle with appellant, Gallaccio placed appellant under arrest.
At the suppression hearing, Gallaccio testified without objection that he searched the vehicle âincident to arrest.â He also testified at trial that he searched the car because the driver ran, so the car was going to have to be towed and he was âinventorying the vehicle.â
This appeal follows.
ANALYSIS
Standing
Appellant argues that the trial court erred in ruling that he did not have standing to challenge the illegal search of the vehicle and the seizure of the weapons. As a result of the courtâs ruling, reasons appellant, the guns recovered from the car were erroneously admitted into evidence. The Commonwealth argues that the trial court properly found that Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), prevents appellant, as a passenger, from challenging the search of the vehicle.
At oral argument, we asked counsel to file supplemental briefs to address the applicability of Rakas and Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007).
At the suppression hearing, the Commonwealth initially raised the argument that appellant, as a passenger, would not have standing to challenge the search of the vehicle pursuant to Rakas. Appellant agreed, stating that he has âvery little standing to contest the search.â The trial court, citing Rakas,
We agree with the trial court that Rakas controls. Rakas was a passenger in an automobile in which police found a box of rifle shells in a locked glove compartment and a sawed-off rifle under the front passenger seat. 439 U.S. at 130, 99 S.Ct. at 423-24. The Supreme Court rejected Rakasâ argument that simply being a passenger in the vehicle afforded him standing to contest the search of the vehicle. Id. at 148, 99 S.Ct. at 432-33. Rakas neither owned nor leased the vehicle. Id. at 140, 99 S.Ct. at 428-29. Significantly, the Supreme Court found Rakas âasserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized.â Id. at 148, 99 S.Ct. at 433. The Court then concluded:
Judged by the foregoing analysis, petitionersâ claims must fail. They asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized. And as we have previously indicated, the fact that they were âlegitimately on [the] premisesâ in the sense that they were in the car with the permission of its owner is not determinative of whether they had a legitimate expectation of privacy in the particular areas of the automobile searched.
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But here petitionersâ claim is one which would fail even in an analogous situation in a dwelling place, since they made no showing that they had any legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they were merely passengers. Like the trunk of an automobile, these are areas in which a passen*12 ger qua passenger simply would not normally have a legitimate expectation of privacy.
Id. at 148-49, 99 S.Ct. at 433 (citations omitted).
Appellant argues Brendlin supports his position. We find that his reliance is misplaced. Brendlin does not address a defendant passengerâs right to contest the search of the vehicle; Brendlin addresses only a passengerâs challenge to the stop itself. The Supreme Court concluded a passenger may bring a Fourth Amendment challenge to the legality of a traffic stop because the passenger is seized as a result of the traffic stop. Brendlin, 551 U.S. at 255, 127 S.Ct. at 2405-06. The Court reasoned, âA traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver, diverting both from the stream of traffic to the side of the road....â Id. at 257, 127 S.Ct. at 2407. The Court added,
If the likely wrongdoing is not the driving, the passenger will reasonably feel subject to suspicion owning to close association; but even when the wrongdoing is only bad driving, the passenger will expect to be subject to some scrutiny, and his attempt to leave the scene would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place.
Id. By its own language, Brendlin does not address whether a passenger can challenge the legality of a search of the vehicle in which he is a passenger.
Appellant further cites Arizona v. Johnson, â U.S.-, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009), to support his contention. However, Johnson simply reiterates the Brendlin ruling that â[a] passenger therefore has standing to challenge a stopâs constitutionality.â Johnson, 129 S.Ct. at 787.
Under Rakas, we begin our analysis by noting that appellant bears the burden of proving that he has standing to assert the constitutional right. Abell v. Commonwealth, 221 Va. 607, 614, 272 S.E.2d 204, 208 (1980). In keeping with Rakas, â[t]he test is whether the appellant objectively had a reasonable expectation of privacy at the time and place of the disputed search.â McCoy v. Commonwealth, 2 Va.App. 309, 311, 343
âinclud[ing] whether the defendant has a possessory interest in ... the place searched, whether he has the right to exclude others from that place, whether he has exhibited a subjective expectation that it would remain free from governmental invasion, whether he took normal precautions to maintain his privacy and whether he was legitimately on the premises.â
Id. at 312, 343 S.E.2d at 385 (quoting United States v. Haydel, 649 F.2d 1152, 1155 (5th Cir.1981)). See also Barnes v. Commonwealth, 234 Va. 130, 135, 360 S.E.2d 196, 200 (1987) (discussing that defendant failed to meet his burden where he showed he had permission to be present in the place searched but did not have a key, did not keep property there, and could not exclude others), cert. denied, 484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988).
The Commonwealth argues, and we agree, that appellant asserted neither a property nor a possessory interest in the vehicle. Because appellant asserted a Fourth Amendment violation, it was his burden to show he had standing to challenge the search of the vehicle. At no point did he claim any interest in the vehicle or in the weapons found inside. From this record, it is clear that appellant did not own the vehicle and was in the vehicle to purchase heroin. All that appellant has shown is that he was a passenger in the vehicle.
Appellant contends Arnold v. Commonwealth, 17 Va.App. 313, 437 S.E.2d 235 (1993), modifies Rakas. We disagree. In Arnold, we held that a passenger had an expectation of privacy in a shopping bag found on the vehicleâs floor at his feet. Id. at 316, 437 S.E.2d at 237. We distinguished Rakas in two respects. First, we found that in Rakas, the question was âa narrow one: Did the search of their friendâs automobile after they had left it violate any Fourth Amendment right of the petitioners?â Id. We further distinguished Rakas be
Also of note in Arnold, Arnold never denied ownership of the items seized. In the instant case, unlike Arnold, appellant denied any interest in the weapon seized. While such a denial is not determinative of the issue, it clearly is a factor as part of the totality of the circumstances.
Under a totality of the circumstances approach, we find appellant did not have standing to challenge the search of the vehicle. He made no showing that he had a possessory interest in the car, that he had the right to exclude others from the vehicle, that he had exhibited a subjective expectation that the vehicle and its contents would remain free from governmental invasion, that he exercised control over the vehicle, or that appellant took any precautions to maintain his privacy. As in Rakas, appellant has not shown he has a legitimate expectation of privacy in the area under the seat where the guns were located. Appellant was nothing more than a temporary passenger in anotherâs vehicle.
Appellantâs contention that simply being a legitimate passenger affords him an expectation of privacy was clearly rejected in Rakas. â[T]he fact that they were âlegitimately on [the] premisesâ in the sense that they were in the car with the permission of its owner is not determinative of whether they had a legitimate expectation of privacy in the particular areas of the automobile searched.â Rakas, 439 U.S. at 148, 99 S.Ct. at 433.
Since we conclude appellant failed to meet his burden, we do not address the legality of the seizure of the weapon in the vehicle. We find the trial court did not err in determining appellant had no standing to challenge the search of the vehicle and the seizure of the weapon.
Appellant argues that once his identification was returned to him, there was no justification to detain him further, reasoning that there was no independent reasonable suspicion to detain appellant once he left the vehicle. Appellant also contends that Officer Winningear had no further particularized information of ongoing criminal activity when he chose to have the car checked by a drug dog.
Appellant cites a variety of cases in support of his position that the officers detained the occupants of the vehicle after the traffic stop had ended, thereby turning the detention into a non-consensual encounter.
temporary seizure of the driver and passengers ordinarily continues, and remains reasonable for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers that they are free to leave. An officerâs inquiries into matters unrelated to the justification of the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as*16 those inquiries do not measurably extend the duration of the stop.
Winningear estimated the entire encounter took between five and seven minutes, including the time to process the female passenger with her outstanding warrants. Investigator Glenn Gardiola, who was present at the traffic stop, explained:
During the course of [the] traffic stop, I encountered a female in the vehicle who was later identified as [having] outstanding warrants in Nassau County [New York] and LA county [California]---- I was taking her off to the side and verifying the facts of the warrants making sure they were still active and still valid.
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As I was speaking to her and awaiting for verification for these warrants, I then observed Investigator Gallaccio and Investigator Measel in a physical struggle with [appellant] and at that time left my position to assist them in taking him into custody.
It is well established that a police officer making a routine traffic stop may order a passenger out of the car for safety reasons, even if the officer has no reason to suspect the passenger of criminal behavior. Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 333-34, 54 L.Ed.2d 331 (1977). However, âwhen an officer makes a lawful traffic stop, the scope of the temporary detention may not exceed the purpose of the stop.â Dickerson v. Commonwealth, 35 Va.App. 172, 177-78, 543 S.E.2d 623, 626 (2001) (citing Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325-26, 75 L.Ed.2d 229 (1983) (plurality opinion)), aff'd, 266 Va. 14, 581 S.E.2d 195 (2003).
Here, Gallaccio asked appellant to step out of the car while Investigator Gardiola was still in the process of verifying the outstanding warrants on the female passenger. Because Gardiola observed Gallaccio struggle with appellant before the warrant check was complete, the evidence clearly shows that
We conclude that any detention of appellant was reasonable and took place while the investigation was ongoing, as the police had further need to control the scene. Johnson, 129 S.Ct. at 788. Further questioning of appellant or the driver regarding possession of contraband did not constitute an illegal detention in violation of the Fourth Amendment.
Fruit of the Poisonous Tree
Appellant claims that the drugs found in his possession should not have been admitted into evidence, as they were the âfruit of the poisonous tree,â flowing from the unlawful search of the car. Appellantâs argument presupposes that the search of the vehicle came first. Factually, this is incorrect.
âIf evidence is seized during an illegal stop, it is not admissible at trial under the doctrine known as âthe fruit of the poisonous tree.â â Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004); see Wong Sun v. United States, 371 U.S. 471, 484-88, 83 S.Ct. 407, 415-18, 9 L.Ed.2d 441 (1963) (excluding evidence obtained as the result of illegal police action). â âThe exclusionary rule operates ... against evidence seized and information acquired during an unlawful search or seizure ... [and] against derivative evidence discovered because of the unlawful act.â â Watson v. Commonwealth, 19 Va.App. 659, 662, 454 S.E.2d 358, 360 (1995) (quoting Warlick v. Commonwealth, 215 Va. 263, 265, 208 S.E.2d 746, 748 (1974)).
Seizure of Appellant Outside the Vehicle
In the alternative, appellant contends that Special Agent Gallaccio did not have reasonable suspicion to seize him once appellant exited the vehicle.
When reviewing a trial courtâs denial of a motion to suppress, âwe are bound by the trial courtâs findings of historical fact unless âplainly wrongâ 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.â McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). The burden is on the defendant to show that the denial of his suppression motion, when the evidence is considered in the light most favorable to the Commonwealth, was reversible error. McCain v. Commonwealth, 261 Va. 483, 489-90, 545 S.E.2d 541, 545 (2001). â âUltimate questions of reasonable suspicion and probable cause to make a warrant-less searchâ â involve questions of both law and fact and are reviewed de novo on appeal. McGee, 25 Va.App. at 198, 487
The Fourth Amendment prohibits only unreasonable searches and seizures. James v. Commonwealth, 22 Va.App. 740, 745, 473 S.E.2d 90, 92 (1996). If a police officer has reasonable, articulable suspicion that a person is engaging in, or is about to engage in, criminal activity, he may detain the person to conduct a brief investigation without violating the Fourth Amendmentâs protection against unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968). The reason for stopping an individual need not rise to the level of probable cause, but must be more than an âinchoate and unparticularized suspicion or âhunch.â â Id.
âReasonableness is judged from the perspective of a .reasonable officer on the scene allowing for the need of split-second decisions and without regard to the officerâs intent or motivation.â Scott v. Commonwealth, 20 Va.App. 725, 727, 460 S.E.2d 610, 612 (1995) (citing Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 1871-73, 104 L.Ed.2d 443 (1989)). An officer is entitled to view the circumstances confronting him in light of his training and experience, Terry, 392 U.S. at 27, 88 S.Ct. at 1883, and he may consider any suspicious conduct of the suspected person, Williams v. Commonwealth, 4 Va.App. 53, 67, 354 S.E.2d 79, 86-87 (1987).
In this case, we conclude that Special Agent Gallaccioâs investigatory detention of appellant was justifiable and based upon reasonable, articulable suspicion. While the traffic stop was in progress, Gallaccio observed appellant bobbing up and down in the car as if he was bending over the seat. Then, appellant began to behave strangely as soon as he was removed from the car. His hands were balled into fists and he continued to move in circles, ultimately in the direction of the police vehicle. Appellantâs arms indicated he was a heavy drug user; his manner was very nervous. He did not comply with Special Agent Gallaccioâs request to remove his hands from his pockets. See Walker v. Commonwealth, 42 Va.App.
Due Process
In his questions presented one and two, appellant contends the trial court erred in finding the police did not violate his Fourteenth Amendment due process rights.
Rule 5A:20(e) provided, in part, that the opening brief shall include â[t]he principles of law, the argument, and the authorities relating to each question presented.â âStatements unsupported by argument, authority, or citations to the record do not merit appellate consideration.â Buchanan v. Buchanan, 14 Va.App. 53, 56, 415 S.E.2d 237, 239 (1992). The Supreme Court concluded that âwhen a partyâs âfailure to strictly adhere to the requirements of Rule 5A:20(e)â is significant, âthe Court of Appeals may ... treat a question presented as waived.â â Parks v. Parks, 52 Va.App. 663, 664, 666 S.E.2d 547, 548 (2008) (quoting Jay v. Commonwealth, 275 Va. 510, 520, 659 S.E.2d 311, 317 (2008)). âIf the parties believed that the circuit court erred, it was their duty to present that error to [the Court of Appeals] with legal authority to support their contention.â Fadness v. Fadness, 52 Va.App. 833, 851, 667 S.E.2d 857, 866 (2008). Because appellant provides no legal argument or authority in his brief to support his argument, and we find this omission significant, appellantâs claim that the trial court erred in not finding his due process rights were violated is waived under Rule 5A:20(e).
Sufficiency
Appellant next contends the evidence was not sufficient to prove he possessed the weapon found under the passenger seat of the car.
When addressing the sufficiency of the evidence, we â âpresume the judgment of the trial court to be correctâ and reverse