Commonwealth v. Oral Wellesley Griggs, etc. ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 2067-95-2 JUDGE LARRY G. ELDER
FEBRUARY 13, 1996
ORAL WELLESLEY GRIGGS, a/k/a
WILBERT WELLSBY GAYLE
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge
H. Elizabeth Shaffer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellant.
Cullen D. Seltzer, Assistant Public Defender
(David J. Johnson, Public Defender, on brief),
for appellee.
The Commonwealth appeals the trial court's pretrial ruling
to suppress marijuana and cocaine found in Oral Wellesley Grigg's
(appellee's) luggage. The Commonwealth contends that the trial
court erred in deciding that appellee did not abandon his
luggage. Because the trial court did not err, we affirm its
ruling.
I.
FACTS
On May 10, 1995, Detective Ronnie L. Armstead of the
Richmond Bureau of Police was working at the Greyhound Bus
Station in Richmond. At approximately 3:25 a.m., Armstead
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
noticed appellee exit a bus parked at Gate 15, carrying a tan
folding clothes bag. A baggage handler shortly thereafter handed
appellee a black bag. Appellee then walked into the bus
terminal, proceeded to Gate 17, and set both pieces of luggage
down in the line of Gate 17. For a period of time, appellee
walked around the terminal, went to the men's room, went to the
game room, and then sat down, nervously waiting for the bus at
Gate 17 to be called.
When the dispatcher announced the departure of Gate 17's
bus, appellee retrieved both of his bags and placed the black bag
at the left side of the Gate 17 bus, near the bins where the
baggage handler loads luggage onto the bus. At this time,
Armstead approached appellee at the doorway to the bus, informed
appellee of his status as a police officer, and requested
appellee's permission to talk to him, to which appellee
consented.
Armstead explained to appellee that his purpose was to stop
the flow of drugs through the terminal, and he asked for
appellee's cooperation in the effort. Armstead asked appellee
whether he had any illegal drugs on his person "or in any of the
bags that he may have." Appellee replied "no" and consented to a
search of the tan bag he carried with him. Armstead then asked
appellee if he had any other bags, to which appellee responded
"no." Armstead did not specifically ask appellee about the black
bag at any time.
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Armstead found no illegal drugs on appellee's person or in
the tan bag. Armstead thanked appellee and allowed him to board
the bus. Armstead then retrieved the black bag, which had yet to
be loaded onto the bus, and searched it. After Armstead found
cocaine and marijuana in the black bag, he boarded the bus and
arrested appellee.
Appellee filed a pretrial motion to suppress the drug
evidence. The trial court granted the motion to suppress,
finding that appellee never abandoned his black bag and that the
police search was unconstitutional. The Commonwealth appeals.
II.
ABANDONMENT OF THE LUGGAGE
Upon appeal from a trial court's denial of a motion to
suppress, we must review the evidence in the light most favorable
to the prevailing party, granting to it all reasonable inferences
fairly deducible therefrom. Commonwealth v. Grimstead, 12 Va.
App. 1066, 1067, 407 S.E.2d 47, 48 (1991); Reynolds v.
Commonwealth, 9 Va. App. 430, 436, 388 S.E.2d 659, 663 (1990).
The trial court's findings will not be disturbed unless "plainly
wrong," Grimstead, 12 Va. App. at 1067, 407 S.E.2d at 48, and the
burden is upon the appellant to show that the denial constituted
reversible error. Fore v. Commonwealth, 220 Va. 1007, 1010, 265
S.E.2d 729, 731, cert. denied, 499 U.S. 1017 (1980).
At the core of the trial court's ruling to grant appellee's
suppression motion was its decision that appellee never abandoned
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his black bag containing the illegal drugs. The trial court
found that because appellee did not abandon the bag, appellee
retained a reasonable privacy interest in its contents. This
finding led directly to the trial court's conclusion that the
police performed an illegal warrantless search of the bag.
Applying the appropriate standards of review to the facts in this
case, we hold that the trial court did not err in its ruling.
"'One who voluntarily abandons property forfeits any
expectation of privacy he or she may have in it' and all standing
to complain of its warrantless search and seizure." Commonwealth
v. Holloway, 9 Va. App. 11, 18, 384 S.E.2d 99, 103 (1989)(citing
United States v. Thomas, 864 F.2d 843, 845 (D.C. Cir. 1989)).
Whether a person intends to retain a reasonable expectation of
privacy in property is determined by objective standards such as
the person's words and acts. Wechsler v. Commonwealth, 20 Va.
App. 162, 173, 455 S.E.2d 744, 749 (1995). "Two factors are
particularly relevant in ascertaining intent: [1] physical
relinquishment of the property and [2] denial of ownership." Id.
The record in this case reveals that neither of these factors
was satisfied in this case.
First, the evidence did not prove that appellee relinquished
control over the black bag. Appellee deposited the bag in a
location where he intended for a bus terminal employee to
properly place it in the bus on which appellee planned to depart.
The reasonable inference arises that appellee intended to
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transport the bag with him to the bus' destination, where he
could reclaim his property. These facts stand in contrast to
those in Wechsler, where this Court held that the defendant
voluntarily abandoned his luggage in an airport terminal after he
departed the terminal building and attempted to enter a taxi cab,
leaving the luggage at the terminal's baggage carousel.
Wechsler, 20 Va. App. at 173, 455 S.E.2d at 749. Here, appellee
remained within the bus terminal at all times and left the black
bag in an area designated for loading onto his departing bus; his
actions in no way diminished his privacy expectation in his
property.
Second, appellee's general denial of ownership of luggage
other than the tan bag did not prove he intended to abandon the
black bag. As this Court has stated, "[e]very disclaimer of
ownership of personalty [] does not conclusively establish the
intent to relinquish one's expectation of privacy. . . .
Similarly, an absence of assertion of ownership does not
necessarily constitute abandonment." Holloway, 9 Va. App. at 18,
384 S.E.2d at 104. In this case, although appellee told the
police that he had no bags other than his tan bag, the
Commonwealth failed to prove abandonment under all of the
attendant circumstances. See Wechsler, 20 Va. App. at 173-74,
455 S.E.2d at 749 (the defendant expressly denying ownership
after government agents specifically confronted him with baggage
claim tickets).
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"A trial court's finding that there has not been abandonment
is a factual finding which, even when arguably mixed with
questions of law, is subject to attack only if clearly
erroneous." Holloway, 9 Va. App. at 19, 384 S.E.2d at 104.
Based on the foregoing, we do not believe the trial court's
ruling was clearly erroneous.
Accordingly, we affirm the trial court's suppression order.
Affirmed.
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