                    COURT OF APPEALS OF VIRGINIA


Present: Judges Koontz, Willis and Senior Judge Hodges
Argued at Salem, Virginia

JOHNNY WAYNE WARREN

v.   Record No. 0154-94-3              MEMORANDUM OPINION * BY
                                    JUDGE LAWRENCE L. KOONTZ, JR.
COMMONWEALTH OF VIRGINIA                     MAY 2, 1995

           FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                       James F. Ingram, Judge

     Joe Garrett (Garrett & Garrett, P.C, on brief), for
     appellant.
     Eugene Murphy, Assistant Attorney General (James S. Gilmore,
     III, Attorney General; Leah A. Darron, Assistant Attorney
     General, on brief), for appellee.



     Johnny Wayne Warren (Warren) appeals his bench trial

conviction for possession of cocaine.   Warren asserts that the

trial court erred in ruling that he lacked standing to challenge

the seizure of evidence during the execution of an invalid search

warrant at a home where he was a temporary guest.   Warren further

asserts that the invalidity of the warrant resulted in an illegal

seizure of his person, requiring suppression of the evidence.

Warren also challenges the sufficiency of the evidence to support

his conviction.   For the following reasons, we affirm Warren's

conviction.

     We restate only those facts necessary to explain our

holding.   Danville police, acting on information from a reliable

informant, sought and obtained a warrant to search for narcotics

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
in an apartment rented by George Scales.   The supporting

affidavit, however, was ambiguous as to whether the warrant

sought was specific to Scales or the apartment generally.

     During the execution of that warrant, officers observed

Warren, a guest at an on-going party in the apartment, toss away

a folded twenty dollar bill which he had held in his hand when

they entered the apartment.   An officer recovered the bill and

discovered on the bill a white, powdery residue which analysis

showed to be cocaine.
     Immediately prior to trial, Warren moved to suppress the

evidence on the ground that the search warrant was invalid.

While agreeing that the search warrant was invalid, the trial

court permitted the Commonwealth to proceed with its case on the

ground that Warren lacked standing to object to the validity of

the warrant.

     Warren asserts that he had a reasonable expectation to

privacy in his person and possessions at the time of the

execution of the warrant and that this expectation was violated

by the illegal entry and search effected by the invalid warrant.

We disagree.

     The Commonwealth does not challenge the trial court's

determination that the warrant was invalid.   Thus, we will

assume, without deciding, that this ruling of the trial court was

correct.   Nonetheless, in order for a defendant to object on

fourth amendment grounds to a search and seizure, he or she has




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the burden of showing that his or her own fourth amendment rights

were violated.   Williams v. Commonwealth, 4 Va. App. 53, 70, 354

S.E.2d 79, 88 (1987); McCoy v. Commonwealth, 2 Va. App. 309, 311,

343 S.E.2d 383, 384 (1986).   Fourth amendment protection can only

be claimed by one who "has 'a legitimate expectation of privacy'

in the property searched or seized."   Wells v. Commonwealth, 6

Va. App. 541, 549, 371 S.E.2d 19, 23 (1988). See generally Katz

v. United States, 389 U.S. 347, 353 (1967).
     Thus, before affording exclusionary rule protection to a

defendant, a trial court must determine whether, based on the

totality of the circumstances, the defendant "objectively had a

reasonable expectation of privacy at the time and place of the

disputed search."   McCoy, 2 Va. App. at 311, 343 S.E.2d at 385.

The party asserting fourth amendment rights has the burden of

proving the government conducted an illegal search of a place

where that party had a legitimate expectation of privacy.

Rawlings v. Kentucky, 448 U.S. 98, 104 (1980).   Some of the

factors courts may consider when determining whether a defendant

had a legitimate expectation of privacy in the place searched

include whether the defendant had a possessory interest in the

place, had the right to exclude others from the place, and took

normal precautions to maintain privacy in the place.     McCoy, 2

Va. App. at 312, 343 S.E.2d at 385; see also Barnes v.

Commonwealth, 234 Va. 130, 135, 360 S.E.2d 196, 200 (1987)

(defendant failed to meet his burden where he showed he had



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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 (1988).

     Here, the evidence shows that Warren was merely a transient

guest in the apartment.   Although he frequently visited the

apartment, there was no evidence that he ever stayed overnight or

had access to the apartment other than by permission of the

lessee while he was also present.     Accordingly, the trial court

did not err in ruling that Warren lacked standing to challenge

the validity of the search.
     Warren further asserts that, because the police were

operating under an invalid search warrant, his detention within

the apartment was an illegal seizure and that the evidence

obtained during that seizure should have been suppressed. 1    We

will assume, without deciding, that the presence of multiple

police officers, some of whom blocked the principal paths of

egress from the apartment, and their display of weapons and

badges was sufficient to constitute a seizure of all the persons

inside the apartment.

     On appeal, the burden is on the defendant to show that the

court's denial of a suppression motion based upon the illegal
     1
      The Commonwealth asserts that Warren raises this issue for
the first time on appeal and that it is therefore barred from our
consideration. Rule 5A:18. At trial, Warren asserted that he
had a reasonable expectation of privacy in his person. Although
it is unclear that this assertion was an attempt to challenge the
seizure of his person, we elect to consider the issue on its
merits.



                                -4-
seizure of one's person, when considered in the light most

favorable to the Commonwealth, constituted reversible error.        See

Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731,

cert. denied, 449 U.S. 1017 (1980).     The fourth amendment does

not prohibit all seizures, only unreasonable ones.     See Phillips

v. Commonwealth, 17 Va. App. 27, 30, 434 S.E.2d 918, 920 (1993).

Officers executing a search warrant for contraband may detain

the occupants of the premises to be searched while the search is

in progress.   Michigan v. Summers, 452 U.S. 692, 705 (1981).

Although this act constitutes a seizure, it is reasonable because

its intrusiveness is limited and the exigencies of the

circumstances require it both to protect police and secure the

safe recovery of the evidence sought.     Id.; see also Williams, 4

Va. App. at 67, 354 S.E.2d at 87.

     Although we have assumed here that the trial court correctly

found that the warrant was not valid because of an error in the

supporting affidavit, nothing in the record suggests that the

officers were not acting under a good faith belief in the

validity of the warrant at the time it was executed.     See United

States v. Leon, 468 U.S. 897, 918-21 (1984); Lanier v.

Commonwealth, 10 Va. App. 541, 547, 394 S.E.2d 495, 499 (1990).

Accordingly, the officers had the right to detain Warren and the

other guests during the execution of the warrant.

     Furthermore, the police would have been permitted to conduct

a protective search of Warren under the circumstances.     See




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Williams, 4 Va. App. at 66-67, 354 S.E.2d at 87.      However, as

Warren discarded the bill before the officers had attempted such

a search, we are concerned only with the validity of the de facto

seizure caused by securing the residence.      We hold that the

seizure was proper under Summers and, thus, did not require

suppression of the evidence discovered in the course of that

seizure.

     Finally, Warren asserts that the evidence was insufficient

to prove that he exercised dominion and control over the bill and

residue or that he was aware of the character and nature of the

residue.   We disagree.   "On appeal, we review the evidence in the

light most favorable to the Commonwealth, granting to it all

reasonable inferences fairly deducible therefrom.      The judgment

of a trial court sitting without a jury is entitled to the same

weight as a jury verdict and will not be set aside unless it

appears from the evidence that the judgment is plainly wrong or

without evidence to support it."       Martin v. Commonwealth, 4 Va.

App. 438, 443, 358 S.E.2d 415, 418 (1987) (citing

Code § 8.01-680).   Here, the evidence showed that Warren

voluntarily disposed of a valuable possession when confronted by

police.    Although he denied knowledge and ownership of the bill,

the testimony of the officers established that the bill

discovered on the floor was the object Warren was seen discarding

moments before.   Warren also inquired of one of the arresting

officers more than once concerning the penalty he might receive



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for possession of cocaine.    From these facts, the trial judge

could reasonably infer that Warren was aware of the presence and

character of the cocaine residue and harbored a guilty conscience

as to his possession of it.

     For these reasons, the judgment of the trial court is

affirmed.
                                                    Affirmed.




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