Susan Elaine Bailey v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Bumgardner
Argued at Salem, Virginia
WILLIAM DEAN SHAVER
v. Record No. 1909-98-3
COMMONWEALTH OF VIRGINIA OPINION BY
JUDGE SAM W. COLEMAN III
SUSAN ELAINE BAILEY OCTOBER 26, 1999
v. Record No. 1915-98-3
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Ray W. Grubbs, Judge
Frederick M. Kellerman, Jr. (Long, Long &
Kellerman, P.C., on brief), for appellant
William Dean Shaver.
Beverly M. Davis (Davis, Davis & Davis, on
brief), for appellant Susan Elaine Bailey.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General,
on briefs), for appellee.
William Dean Shaver and Susan Elaine Bailey were convicted in
a joint bench trial of receiving stolen property, viz., an
all-terrain vehicle (ATV), in violation of Code § 18.2-108. They
appeal the trial court's refusal to suppress evidence allegedly
obtained in violation of their Fourth Amendment protection against
unreasonable search and seizures. They also contend the evidence
was insufficient to support their convictions. Because the
codefendants had no cognizable expectation of privacy at the place
the vehicle was located or in the stolen vehicle, we affirm the
trial court's denial of the motion to suppress. Additionally, we
find the evidence sufficient to support the convictions.
BACKGROUND
Investigator Croy went to the home of William Shaver and
Susan Bailey to investigate a forgery complaint that Bailey had
lodged. As Croy left the residence, he observed an ATV with a
non-factory camouflage paint job parked at the end of the
driveway, next to the front porch and about 250 feet from the main
road. The ATV was uncovered and visible from the road. Croy was
aware of an ongoing investigation into ATV thefts and knew that
his office recently recovered a stolen ATV with a similar
camouflage paint job.
The following day, Croy returned to the defendants' residence
with Investigator Fleet, who was investigating four or five recent
ATV thefts in the area. Fleet knew that relatives of Bailey had
been arrested in connection with other recent ATV thefts and that
one of the recovered ATVs had a paint job similar to the one at
the defendants' residence. The investigators intended to speak
with the defendants and to examine the ATV to determine whether it
was the same make and model as one reported stolen -- a blue Honda
with a gray seat and scratch marks on the right rear fender. The
officers did not have a search warrant.
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The investigators knocked on the front door of the residence
but no one answered. They then inspected the ATV and confirmed
that it was the same make and model as the one reported stolen.
Fleet confirmed that the camouflage paint and seat cover were not
factory issued. The investigators raised the seat cover and
observed that the original seat was gray. They also scratched
some paint from the ATV with a penknife, which revealed underlying
blue paint. The vehicle identification number had been filed or
ground off.
The investigators then called Curtis Dean Fugate, the man who
had recently reported stolen a blue Honda ATV with a gray seat,
and requested that he come to the defendants' residence. On
arrival, Fugate identified ten characteristics of the ATV that
confirmed it to be his stolen ATV. The officers seized the ATV
and released it to Fugate.
Shaver called the sheriff's office later that evening to
report the ATV stolen. Shaver claimed to have purchased the ATV
at a flea market for $1,500. At trial, Bailey corroborated
Shaver's account of when they purchased the ATV and that she had
given him the money from their joint funds. The date on which
Shaver claimed to have purchased the ATV was, however, five months
before the date the ATV was stolen from Fugate. Shaver could not
produce a receipt or identify the person who allegedly had sold
the ATV to him. Fugate estimated the ATV's value to be $3,500.
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ANALYSIS
Suppression Motion
On appeal from a motion to suppress evidence, we review the
evidence in the light most favorable to the prevailing party. See
McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261
(1997) (en banc). When reviewing a Fourth Amendment suppression
ruling, "we are bound by the trial court's findings of historical
fact unless 'plainly wrong' or without evidence to support them."
Id. at 198, 487 S.E.2d at 261 (citing Ornelas v. United States,
517 U.S. 690, 699 (1996)). However, we consider de novo whether
those facts implicate the Fourth Amendment and, if so, whether the
officers unlawfully infringed upon an area protected by the Fourth
Amendment. See id. Here, accepting the facts as found by the
trial judge, we hold that Bailey and Shaver had no legitimate
expectation of privacy at the location on their property where the
ATV was parked or in the ATV.
Two separate searches or intrusions by the officers are at
issue. First, the officers entered upon the defendants' property
where they saw and examined the ATV. Second, the officers
searched the ATV by lifting the seat cover and scratching the
ATV's surface paint.
Subject to several well established exceptions, the Fourth
Amendment prohibits warrantless searches of any place or thing in
which a person has a justifiable expectation of privacy. See
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Mincey v. Arizona, 437 U.S. 385, 390 (1978). To determine whether
a citizen "enjoys a reasonable expectation of privacy . . . we
consider whether he [or she] has exhibited an expectation of
privacy in the object and whether that expectation is one that
'society is prepared to recognize as reasonable.'" Anderson v.
Commonwealth, 25 Va. App. 565, 576, 490 S.E.2d 274, 279 (1997)
(quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan,
J., concurring)), aff'd, 256 Va. 580, 507 S.E.2d 339 (1998).
Depending on circumstances, a citizen's reasonable
expectation of privacy may extend to his or her residence,
personal papers, vehicles, and belongings. However, where
private lands are exposed to observation by members of the
public who may legitimately come upon the property, a citizen
does not reasonably have an expectation of privacy in areas that
the passing public can observe. See Katz, 389 U.S. at 351
("What a person knowingly exposes to the public, even in his own
home or office, is not a subject of Fourth Amendment
protection."). Here, the defendants had no reasonable
expectation of privacy in those areas of their property
observable by members of the public who might approach their
residence, pass by, or lawfully be upon their property.
Therefore, they had no expectation of privacy in the area where
the ATV was parked, which was next to their front porch, near
the path of entry to the residence and visible from the road.
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See United States v. Ventling, 678 F.2d 63, 66 (8th Cir. 1982)
(finding that the defendant did not have a reasonable
expectation of privacy in his driveway which was in public
view); see generally United States v. McIver, __ F.3d __, __
1999 WL 587573, at *5 (9th Cir. Aug. 6, 1999) (concluding that
affixing an electronic device to the undercarriage of
defendant's vehicle which was parked in the defendant's driveway
did not violate the Fourth Amendment because the defendant
failed to demonstrate that he had a reasonable expectation of
privacy in his driveway).
People commonly have different expectations,
whether considered or not, for the access
areas of their premises than they do for
more secluded areas. Thus, we do not place
things of a private nature on our front
porches that we may very well entrust to the
seclusion of a backyard, patio or deck. In
the course of urban life, we have come to
expect various members of the public to
enter upon such a driveway, e.g., brush
salesmen, newspaper boys, postmen, Girl
Scout cookie sellers, distressed motorists,
neighbors, friends. Any one of them may be
reasonably expected to report observations
of criminal activity to the police. . . .
If one has a reasonable expectation that
various members of society may enter the
property in their personal or business
pursuits, he should find it equally likely
that the police will do so.
State v. Corbett, 516 P.2d 487, 490 (Or. Ct. App. 1973)).
In United States v. Smith, 783 F.2d 648 (6th Cir. 1986), the
Sixth Circuit concluded that whether a driveway is protected from
entry by police officers varies from case to case and is dependant
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on whether the driveway is visible and accessible to the public.
The court further noted that whether the driveway was within the
curtilage of the house was not determinative. See id. at 651. In
Smith, a police officer, acting on an informant's tip, drove to
the defendant's residence and up the private driveway
approximately seventy-five to one hundred yards. See id. at 650.
Although there was a wire fence along the highway, the driveway
was unobstructed. When the officer reached the house, he observed
a marijuana plant growing next to the house. See id. The court
held that the defendant had no reasonable expectation of privacy
where the plant was growing and further held that the officer did
not violate the defendant's Fourth Amendment rights by entering
the driveway and proceeding to the residence.
Here, the ATV was parked on a private drive near the front
porch of the home where it was visible to the public from the
street. The defendants made no attempt to restrict or shield the
driveway from public view. The driveway was not enclosed by a
fence, shrubbery, or other barrier. See United States v.
Humphries, 636 F.2d 1172, 1179 (9th Cir. 1980) (finding that the
defendant did not have a reasonable expectation of privacy in his
driveway and in the inspection of the car parked thereon because
the car was visible from the street and because the driveway was
not enclosed by a fence or shrubbery and the officer did not have
to move anything to gain access to the driveway). Therefore, when
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the officers entered upon the defendants' property to view the
ATV, they were on the driveway and at the front of the residence
which was visible to the public and those persons approaching the
defendants' home. The Fourth Amendment protections did not
prohibit the officers from entering the driveway and approaching
the house from where they could see and observe the ATV. See
Illinois v. Andreas, 463 U.S. 765, 771 (1983) ("If the inspection
by police does not intrude upon a legitimate expectation of
privacy, there is no 'search' subject to the Warrant Clause.")
(citation omitted). Therefore, the presence of the officers in
the driveway and their observation of the ATV at that location did
not implicate the Fourth Amendment.
The defendants also contend they had an expectation of
privacy in the underside of the ATV's seat cushion and in the
ATV's undercoat of paint -- items which the defendants clearly did
not expose to the public. We find the defendants had no
legitimate expectation of privacy in the ATV because they had no
lawful claim of ownership in the ATV.
"A general rule has developed, stating that a person's
interest in his or her possession of stolen property is not a
legitimate expectation of privacy society is willing to recognize
as reasonable." Travis v. State, __ So.2d __, __ 1997 WL 187121,
at *50-51 (Ala. Crim. App. Apr. 18, 1997) (citing Brown v. United
States, 411 U.S. 223, 230 n.4 (1973); United States v. Hensel, 672
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F.2d 578 (6th Cir. 1982); United States v. Hargrove, 647 F.2d 411
(4th Cir. 1981); Smith v. Garrett, 586 F. Supp. 517 (N.D.W.Va.
1984); McMillian v. State, 499 A.2d 192 (Md. App. 1985); People v.
Mercado, 114 A.D.2d 377 (N.Y.S.2d 1985); Sanborn v. State, 304
S.E.2d 377 (Ga. 1983); State v. Hamm, 348 A.2d 268 (Me. 1975)).
"[A] thief has no legitimate expectation of
privacy in stolen property, as such" and
this means that the thief cannot establish
standing solely by virtue of his
relationship to the stolen property, but
would have to establish that the police
actually interfered with his person or with
a place as to which he had a reasonable
expectation of privacy.
5 Wayne R. LaFave, Search and Seizure § 11.3(f), at 203 (3d ed.
1996) (quoting Godfrey v. United States, 408 A.2d 1244, 1246 (D.C.
App. 1979), amended by 414 A.2d 214 (1980)); see Rakas v.
Illinois, 439 U.S. 128, 143-44 n.12 (1978) (noting a thief,
wrongfully present on another's property maintains no legitimate
expectation of privacy in that property); United States v.
McCambridge, 551 F.2d 865, 870 n.2 (1st Cir. 1977) (noting that
the defendant had no standing to challenge the search of the
stolen suitcase because he did not have an ownership interest or
other right to it); Josephs v. Commonwealth, 10 Va. App. 87, 98,
390 S.E.2d 491, 497 (1990) (en banc) (finding that a passenger
riding in a stolen vehicle maintained no expectation of privacy in
that vehicle); Commonwealth v. Strickland, 707 A.2d 531, 534 (Pa.
Super. 1998) (upholding the search of the vehicle in which the
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defendant was driving finding that the defendant could not
establish a legally-cognizable expectation of privacy in that
which was stolen); Hamm, 348 A.2d at 273 (stating that society is
unwilling to recognize as reasonable a thief's expectation of
privacy in stolen property); Graham v. State, 421 A.2d 1385, 1389
(Md. App. 1980) (refusing to recognize a thief's expectation of
privacy in a stolen backpack and moped).
This case and the foregoing cases are distinguishable from
Arizona v. Hicks, 480 U.S. 321 (1987). In Hicks, police
officers entered the defendant's home to investigate a recent
shooting. See id. at 323. While in the home, an officer
noticed two sets of expensive stereo equipment which seemed out
of place in the "squalid and otherwise ill-appointed four-room
apartment." Id. Suspecting that the equipment was stolen, the
officer moved some of the equipment to inspect it. The officer
reported his findings to his headquarters and, after learning
that the equipment was in fact stolen, seized it. See id. The
Supreme Court held that the officer exceeded the scope of the
initial, authorized intrusion when he moved the stereo equipment
in order to examine it. See id. at 324. The Court found that
moving the equipment constituted a "'search' separate and apart
from the search for the shooter, victims, and weapons that was
the lawful objective of his entry into the apartment." Id. at
324-25. The Court concluded that the officer's actions, which
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were unrelated to the authorized intrusion, "exposed to view
concealed portions of the apartment [and] its contents" and
constituted a new invasion of the defendant's privacy
unjustified by the exigent circumstances of the initial
authorized entry. Id. at 325. The Court held that absent
probable cause to believe the property was stolen, the search
was unjustified. See id. at 328. The controlling factor in
Hicks was that the stolen property was inside Hicks' apartment
where he clearly had an expectation of privacy which the officer
violated by moving and searching the personal belongings without
probable cause. Here, however, the entry into the defendants'
driveway and observation of the ATV did not implicate the Fourth
Amendment, 1 and the defendants had no expectation of privacy in
the stolen ATV. See Godfrey, 408 A.2d at 1247.
Because the police did not violate the defendants' Fourth
Amendment rights by entering upon their real estate, the
dispositive issue in the suppression motion was whether the
defendants unlawfully possessed the ATV. Because sufficient
evidence proved that the defendants knowingly and unlawfully
possessed the stolen ATV, the defendants had no legitimate
expectation of privacy in the ATV and no basis to challenge, on
1
Had the officers violated defendants' expectation of
privacy in order to gain access to the ATV, Hicks would be
controlling.
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Fourth Amendment grounds, the officers' examination of the
undercoat of paint or the underside of the ATV's seat cushion.
Accordingly, the trial court did not err by refusing to
suppress the evidence and proceeding to the merits of the case.
Sufficiency
Viewed in the light most favorable to the Commonwealth, see
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975), the evidence was sufficient to sustain the defendants'
convictions for receiving stolen property.
To convict a defendant under Code § 18.2-108, the
Commonwealth must prove that property "was (1) previously stolen
by another, and (2) received by defendant, (3) with knowledge of
the theft, and (4) a dishonest intent." Bynum v. Commonwealth, 23
Va. App. 412, 419, 477 S.E.2d 750, 754 (1996). Guilty knowledge
"is sufficiently shown if the circumstances proven are such as
must have made or caused the recipient of stolen goods to believe
they were stolen." Reaves v. Commonwealth, 192 Va. 443, 451, 65
S.E.2d 559, 564 (1951). The fact that a defendant paid a patently
low price for property is a circumstance from which a trier of
fact may infer guilty knowledge. See Wilson v. Commonwealth, 220
Va. 26, 35, 255 S.E.2d 464, 469-70 (1979).
"Circumstantial evidence is as competent and is entitled to
as much weight as direct evidence, provided it is sufficiently
convincing to exclude every reasonable hypothesis except that of
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guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864,
876 (1983). However, "[t]he Commonwealth need only exclude
reasonable hypotheses of innocence that flow from the evidence,
not those that spring from the imagination of the defendant."
Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29
(1993).
The evidence proved that Fugate's ATV, which was recently
stolen, was recovered from the defendants' property. The
defendants admitted they possessed the ATV and claimed to have
purchased it. Fugate identified ten characteristics of the ATV
that confirmed that it was his ATV. The Commonwealth's evidence
supported the inference that the defendants knew the ATV was
stolen property. The date on which the defendants claimed to have
purchased the ATV preceded the date by approximately five months
that the ATV was stolen from Fugate. This fact give rise to a
permissible inference that the defendants sought to conceal facts
about their acquisition of the ATV. The defendants, who claimed
to have paid $1,500 of on-hand cash for an ATV worth approximately
$3,500, were unable to produce a receipt or identify the seller.
The trial court accepted the Commonwealth's evidence while
rejecting the defendants' testimony, and we cannot hold that this
decision was plainly wrong. "The credibility of the witnesses and
the weight accorded the evidence are matters solely for the fact
finder who has the opportunity to see and hear that evidence as it
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is presented." Sandoval v. Commonwealth, 20 Va. App. 133, 138,
455 S.E.2d 730, 732 (1995) (citations omitted). Accordingly, the
trial court did not err by denying the defendants' motion to
strike the evidence.
Therefore, we affirm the defendants' convictions.
Affirmed.
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