                   COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Frank and Humphreys
Argued at Richmond, Virginia


DAITRONE LAMAR HARGROVE
                                           MEMORANDUM OPINION * BY
v.   Record No. 3059-99-2              JUDGE RUDOLPH BUMGARDNER, III
                                              OCTOBER 17, 2000
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF HENRICO COUNTY
                    Catherine C. Hammond, Judge

          Matthew P. Geary (Goodwin, Sutton, DuVal &
          Geary, P.L.C., on brief), for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Daitrone Lamar Hargrove appeals his conviction of unlawful

possession of marijuana.    He contends the police conducted an

unlawful search and the trial court erred in admitting the

evidence they seized.     Concluding the search was lawful, we

affirm.

     We view the evidence in the light most favorable to the

Commonwealth.   See Fore v. Commonwealth, 220 Va. 1007, 1010, 265

S.E.2d 729, 731, cert. denied, 449 U.S. 1017 (1980).     We review

de novo the ultimate questions of reasonable suspicion and

probable cause, but we "review findings of historical fact only


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
for clear error and . . . give due weight to inferences drawn

from those facts . . . ."     Ornelas v. United States, 517 U.S.

690, 699 (1996).

        Officer Stromberg stopped a van driven by the defendant for

playing loud music.    The owner, Antoine Harvey Squire, sat in

the front passenger seat, and Frederick Martin sat on a bench

seat in the very back of the van.    While Stromberg validated the

driver's licenses of the defendant and Squire at his patrol car,

two additional officers, Perkins and Moore, arrived.    Stromberg

determined the licenses were valid but also learned the

defendant was only 18 years old.    Stromberg returned to the

driver's side of the van as Perkins went to the passenger's

side.    Stromberg issued a warning about playing loud music and

returned the driver's licenses.

        Stromberg then explained that he was working to interdict

drugs and asked Squire, the owner, if he "minded" if Stromberg

searched the van.    Squire replied, "No," but Stromberg was

unsure whether Squire was consenting.    He asked another

question, whether he could use a drug dog.    To this Squire

stated that he was in a hurry and asked why the officer was

harassing him.    Simultaneously, Stromberg noticed Martin was

sitting side-saddle on the bench seat and asked offhandedly if

his seat belt was broken.    As Martin shifted to face forward,

Perkins announced that he saw an open beer in the vehicle.



                                 - 2 -
     Stromberg had the defendant step out of the van.    As he

did, Stromberg smelled alcohol on the defendant's breath and saw

a Michelob bottle cap on the floorboard where his feet had been.

The defendant admitted he had been drinking.   Stromberg asked

the other passengers to exit the vehicle.   He then entered the

van and removed a twelve-bottle carton of Michelob beer that

contained nine bottles.   Two bottles were open, and a third had

been opened but re-capped.

     Near the beer container but under the bench seat, Stromberg

found a backpack.   Its weight made him think that it might

contain beer, so he asked who owned the backpack.   Each of the

three denied ownership or knowledge of the backpack.    Stromberg

searched the backpack and arrested all three when he found a

large amount of marijuana in it.   The officers found marijuana

in the defendant's sock, when they searched him incident to his

arrest.   The defendant contends the marijuana was unlawfully

seized and inadmissible at his trial.

     During the stop, which the defendant concedes was lawful,

the officers saw open containers of beer in a vehicle driven by

a driver under twenty-one.   A warrantless search and seizure is

valid when it is "'made upon probable cause, that is, upon a

belief, reasonably arising out of circumstances known to the

seizing officer, that an automobile . . . contains that which by

law is subject to seizure and destruction . . . .'"     United

States v. Ross, 456 U.S. 798, 805 (1982) (citation omitted).

                               - 3 -
The officers observed open bottles of beer in plain view while

lawfully positioned to see them.

              [I]n order for a seizure to be permissible
              under the plain view doctrine, two
              requirements must be met: "(a) the officer
              must be lawfully in a position to view and
              seize the item, [and] (b) it must be
              immediately apparent to the officer that the
              item is evidence of a crime, contraband, or
              otherwise subject to seizure."

Conway v. Commonwealth, 12 Va. App. 711, 718, 407 S.E.2d 310,

314 (1991) (en banc) (quoting Stokes v. Commonwealth, 4 Va. App.

207, 209, 335 S.E.2d 611, 612 (1987)).

     Upon seeing the open beer bottles, the officers had reason

to suspect the defendant was violating any number of criminal

statutes. 1    That permitted them to investigate further.     See

Terry v. Ohio, 392 U.S. 1, 20-22 (1968).      As soon as the

defendant stepped out of the car, Stromberg smelled alcohol on

the defendant's breath and the defendant admitted drinking.

That additional information provided probable cause to arrest

the defendant for driving under the influence or driving after

consuming alcohol.     "[A]n individual's expectation of privacy in

a vehicle and its contents may not survive if probable cause is


     1
       For example:
          Code § 18.2-266 Driving under the influence;
          Code § 18.2-266.1 Any person under twenty-one
operating a motor vehicle after consuming alcohol;
          Code § 18.2-323.1 Consuming an alcoholic beverage
while driving; or
          Code § 4.1-305 Possession of alcoholic beverage by
person under twenty-one.


                                  - 4 -
given to believe that the vehicle" contains contraband.      Ross,

465 U.S. at 823.

     The officers did not enter the van until Stromberg

determined the defendant had been drinking, but with that

knowledge they were entitled to seize the beer from the van.

While doing so, Stromberg found the backpack, which he

reasonably believed contained alcohol.     When asked, the

defendant denied owning it or having any knowledge of it.      The

defendant abandoned the backpack and surrendered any expectation

of privacy in it.    "'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."     Wechsler v. Commonwealth, 20 Va. App. 162, 173, 455

S.E.2d 744, 749 (1995) (quoting Commonwealth v. Holloway, 9 Va.

App. 11, 18, 384 S.E.2d 99, 103 (1989)).    "'If a person

relinquishes possession and disclaims ownership of personal

property, he or she surrenders any expectation of privacy in the

property.'"     Id. (citations omitted).

     The trial court did not err in determining that the

defendant lacked standing to challenge the search of the

backpack.   Once the marijuana was found in the backpack, the

defendant was lawfully arrested.    The marijuana found in his




                                 - 5 -
sock was discovered during the search incident to his lawful

arrest.   Accordingly, we affirm the conviction.

                                                        Affirmed.




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