                       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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