                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Annunziata
Argued at Richmond, Virginia


COMMONWEALTH OF VIRGINIA

v.    Record No. 0704-95-2               MEMORANDUM OPINION * BY
                                      JUDGE ROSEMARIE P. ANNUNZIATA
GARY LEE CHRISTIAN                         SEPTEMBER 19, 1995


              FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                     Paul M. Peatross, Jr., Judge
             Michael T. Judge, Assistant Attorney General
             (James S. Gilmore, III, Attorney General, on
             brief), for appellant.

             (Sheila C. Haughey; J. Lloyd Snook, III;
             Snook & Haughey, P.C., on brief), for
             appellee.



     The appellee, Gary Lee Christian, was indicted in the

Circuit Court for the County of Albemarle for breaking and

entering and grand larceny.    The appellee filed a motion to

suppress evidence obtained from the October 29, 1994 search of a

vehicle in which he was a passenger.    After argument, the trial

court granted the appellee's motion, finding that the search

violated his Fourth Amendment rights.

     The Commonwealth appeals the suppression, alleging the

following:    (1) that the trial court erred in granting the motion

to suppress because the appellee failed to establish standing;

(2) that the trial court erred in concluding that the search of

the answering machine was not a valid search incident to arrest;
     *Pursuant to Code § 17.116.010 this opinion is not
designated for publication.
and (3) that the trial court erred in finding that the evidence

failed to establish the probable cause necessary under the "plain

view" exception to the warrant requirement.    For the reasons

stated below, we reverse and remand this case.

     On October 29, 1994, Officer Mike Wagner, of the Albemarle

County Police Department, patrolled an area north of

Charlottesville.   Just after midnight, a green Ford pickup drew

Officer Wagner's attention.    While stopped at a red traffic

light, the truck spun its wheels heavily for approximately ten to

fifteen seconds causing a large dust bowl of smoke.    Officer

Wagner observed the truck proceed through the green light and

enter an Amoco station just past the light.    Officer Wagner

identified the appellee, Gary Lee Christian, as the driver of the

truck.   Officer Wagner approached Christian with his badge

displayed as Christian fueled the truck.   Officer Wagner asked

Christian if there was a problem with the truck.   By this time,

Christian had returned to the driver's seat.
     Upon inquiring about the truck, Officer Wagner observed both

a strong odor of alcohol on Christian and a whiskey container on

the front seat of the truck.   Christian admitted to drinking and

proceeded to exit the truck to perform field sobriety tests.

After Christian failed Officer Wagner's field sobriety tests,

Officer Wagner arrested him for driving under the influence.

Officer Wagner then handcuffed Christian and searched his person

incident to the arrest.   As a result of the search, Officer




                                  2
Wagner found a ziplock bag of marijuana in Christian's front

pocket.    Officer Wagner placed Christian in his patrol car and

sought identification of Christian and registration of the truck.

Christian provided a false name to Officer Wagner and failed to

produce a vehicle registration or proof of ownership.

     Meanwhile Officer Barbour arrived on the scene and arrested

the truck's only passenger, David Winthrop Paschall, after

finding a concealed weapon on the truck's front seat.
     While both subjects were handcuffed, Officer Wagner searched

both the bed of the truck and a toolbox contained there.    Officer

Wagner observed some unboxed office products scattered loosely in

the bed of the truck and, upon opening the toolbox, found more

office products.   In response to Officer Wagner's inquiry about

the office products, Christian stated that his brother in

Richmond had given him all of the products except a computer that

he had purchased from an unnamed person for fifty dollars.     The

alleged purchase price of the computer caused Officer Wagner some

concern.   Based on this concern and Christian's statement that

the equipment came from his brother, Officer Wagner removed an

answering machine from the truck bed and took it into the Amoco

to play the greeting on the machine.   Christian's motion to

suppress the evidence obtained as a result of Officer Wagner's

search of the truck, including the evidence obtained from the

answering machine, was granted.




                                  3
                                 A

     Christian first contends that this Court should bar the

Commonwealth's claim because it failed to raise the issue of

standing at the suppression hearing.   The record fails to support

Christian's contention.   The Commonwealth elicited testimony from

Officer Wagner, the hearing's only witness, that Christian could

not provide proof of ownership of the truck when asked.   The

Commonwealth also made clear that it was contesting Christian's

standing to challenge the suppression of the office equipment by

seeking to elicit testimony at the hearing that the equipment was

owned by a church.   The Commonwealth also sought to have admitted

a stipulation regarding the ownership of the equipment, thought

to have been agreed to by Christian's counsel.   Finally, at the

trial court's direction, the Commonwealth provided the court a

legal memorandum in lieu of closing argument, asserting clearly

the Commonwealth's contention that Christian failed to establish

standing with respect to either the truck or the tape machine.

Christian's brief likewise addressed the issue of standing,

contending, in effect, that the Commonwealth had the burden to

establish that Christian did not have standing and that it failed

to put on any such evidence.   While the trial court did not rule

on the question, it is apparent from both the briefs and the

evidence the Commonwealth sought to elicit, that both parties

believed that standing was in dispute and before the court.



                                 4
Accordingly, the Commonwealth's appeal is properly before us.

     In this appeal by the Commonwealth of the trial court's

order suppressing evidence, we view the evidence in the light

most favorable to Christian, and we will not reverse the trial

judge's decision unless it is plainly wrong.   Code § 8.01-680.

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,

48 (1991).

     An accused has standing to challenge a search only if he has

a legitimate expectation of privacy in the area searched.     Hardy

v. Commonwealth, 17 Va. App. 677, 680, 440 S.E.2d 434, 436

(1994).   With respect to an automobile, an accused has standing

to object to a search only if he is the "owner or in lawful

possession of it."   Id. (citing Josephs v. Commonwealth, 10 Va.

App. 87, 92-95, 390 S.E.2d 491, 493-96 (1990)).   An accused's

ownership or possessory interest determines standing, not his

physical relationship to the vehicle as "driver" or "occupant."

Indeed, "absent evidence that the driver of a vehicle has lawful

and exclusive possession and control thereof the driver has no

standing, simply by virtue of his status as [driver], to raise a

Fourth Amendment challenge."   Delong v. Commonwealth, 234 Va.

357, 363, 362 S.E.2d 669, 672 (1987) (emphasis added) (citing

United States v. Manbeck, 744 F.2d 360, 374 (4th Cir. 1984),

cert. denied sub nom. O'Hare v. United States, 469 U.S. 1217

(1985) (driver did not have standing when he failed to testify at

suppression hearing, ownership of truck was never clearly



                                 5
established, and no other indicia of an expectation of privacy in

the truck itself was submitted)); see also Barnes v.

Commonwealth, 234 Va. 130, 135, 360 S.E.2d 196, 200 (1987). 1       In

Delong, to meet this burden, the defendant established, by

stipulation made with the Commonwealth, that the vehicle he was

driving was owned by his girlfriend.      Delong, 234 Va. at 363, 362

S.E.2d at 672.

         The burden of establishing standing to challenge a search

rests with the accused.     Jones v. United States, 362 U.S. 257

(1960) (one who seeks to challenge the legality of a search as

the basis for suppressing relevant evidence must allege, and if

the allegation is disputed, establish that he himself was the

victim of an invasion of privacy); Josephs v. Commonwealth, 10

Va. App. 91, 390 S.E.2d at 493 (1990); Shearer v. Commonwealth, 9

Va. App. 394, 404, 388 S.E.2d 828, 833 (1990); Williams v.

Commonwealth, 4 Va. App. 53, 70, 354 S.E.2d 79, 88 (1987).         To

meet this burden, the accused must produce evidence to

demonstrate a legitimate expectation of privacy in the place or

item searched.     See Delong, 234 Va. at 363, 362 S.E.2d at 672;

Abell v. Commonwealth, 221 Va. 607, 614, 272 S.E.2d 204, 208

(1980).    Nothing in the record establishes that Christian was in

rightful possession of the truck.      Having failed to meet his

     1
      Barnes denied an accused standing to challenge the search
of the apartment he permissibly occupied. The Barnes Court found
that the accused's mere presence in the apartment did not confer
upon him a legitimate expectation of privacy.



                                   6
burden on this issue, Christian cannot claim standing to

challenge the search of the truck.

     Likewise, Christian had the burden of establishing a

possessory interest in the answering machine.    See Chesson v.

Commonwealth, 216 Va. 827, 831, 223 S.E.2d 923, 926 (1976).      This

he failed to do.   The only evidence on the issue was presented by

Officer Wagner who testified that Christian claimed to have

received the answering machine as a gift from his brother.      It is

clear under Virginia law that the mere allegation of a possessory

interest in the property seized is not enough.    Id.   It is

"incumbent upon the defendant . . . to establish by evidence the

truth of his allegation."   Id.

                                  B

     Even if we assume Christian had standing to challenge the

search, the trial court's suppression order must still be

reversed.   After making a lawful custodial arrest, the police may

search the person arrested and the immediately surrounding area

without a warrant.   New York v. Belton, 453 U.S. 454, 457 (1980);

see Pack v. Commonwealth, 6 Va. App. 434, 436, 368 S.E.2d 921,

922 (1988).   The proper scope of such a search incident to lawful

arrest is "the area within immediate control of the arrestee."

Belton, 453 U.S. at 460; Chimel v. California, 395 U.S. 752, 763

(1969).   With respect to a car, the Belton Court defined that

"area of control" in terms of the car's passenger compartment,

"the area into which an arrestee might reach in order to grab a



                                  7
weapon or evidentiary ite[m]."    Belton, 453 U.S. at 460 (quoting

Chimel, 395 U.S. at 763).

     "Might reach" are the operative words: the arrestee's

inability to actually reach anything is irrelevant.     See Pack, 6

Va. App. at 437, 368 S.E.2d at 923; Albert v. Commonwealth, 2 Va.

App. 734, 739, 347 S.E.2d 534, 537 (1986); see also Belton, 453

U.S. at 461-62 n.5; 3 W. LaFave, Search and Seizure 15-16 n.73,

74 (2d ed. 1987 and 1995 Supp.) (citations omitted).    Moreover,

having control of the items or custody of the arrestee at the

time of the search does not preclude the police from performing a

search incident to an arrest.    Id.   Thus, the time at which an

arrestee "might have reached" an item is not limited to the time

of the search.

     Applying Belton's principles to this case, the question is

not whether the bed of the pickup is part of the "passenger

compartment;" but, rather, whether the bed of the pickup was an

area into which Christian might have reached.    Before his arrest,

Christian was outside the truck when Officer Wagner first

approached; he kept the door at least partially opened while

talking with Officer Wagner; and he exited the truck to perform

sobriety tests.   Thus, the open bed of the truck remained an area

into which Christian might have reached during the time he was in

contact with Officer Wagner.

     A valid search incident to arrest extends throughout the

area searched, allowing the police to search thoroughly any



                                 8
containers found there.   Belton, 453 U.S. at 460-61; Pack, 6 Va.

App. at 437, 368 S.E.2d at 923; Albert, 2 Va. App. at 739, 347

S.E.2d at 537.   This is so even though such containers "will

sometimes be such that they could hold neither a weapon nor

evidence of the criminal conduct for which the suspect was

arrested."   Belton, 453 U.S. at 461.   Accordingly, the search of

the answering machine, and the tape within, was a valid extension

of the search incident to Christian's arrest.
     For the reasons stated above, this case is reversed and

remanded.

                                             Reversed and remanded.




                                 9
Benton, J., dissenting.

     On a Commonwealth's appeal from a ruling suppressing

evidence, we must view the evidence adduced at the suppression

hearing in the light most favorable to upholding the ruling.

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,

48 (1991).    So viewed, the evidence in this case proved that

Christian was the driver of the vehicle and had possession of the

vehicle.   Absent any evidence to the contrary, that evidence was

sufficient to prove that Christian lawfully possessed the truck

and had a reasonable expectation of privacy in the vehicle and

its contents.   No evidence proved that the vehicle was not

Christian's or was not lawfully in Christian's control and

possession.
     A person who lawfully possesses a vehicle, whether that

person's or another's, has standing to challenge the search of

that vehicle while that person is present in the vehicle.     See

United States v. Miller, 821 F.2d 546, 548 (11th Cir. 1987);
Hardy v. Commonwealth, 17 Va. App. 677, 680, 440 S.E.2d 434, 436

(1994).    Moreover, the principle is well established that "[t]he

privacy interest that must be established to support standing is

an interest in the area searched, not an interest in the items

found."    United States v. Manbeck, 744 F.2d 360, 374 (4th Cir.

1984).    Thus, the trial judge properly reached the merits of the

suppression motion because no evidence disputed the right of

Christian to be lawfully in possession of the vehicle.




                                 10
     Citing United States v. Robinson, 414 U.S. 218 (1973), and

New York v. Belton, 453 U.S. 454 (1981), the Commonwealth argues

that the police officer's seizure and playing of the tape was a

search incident to arrest.    I would uphold the trial judge's

ruling that it was not.

     The evidence proved that Christian was in the passenger

portion of the truck when the police officer approached and

questioned him.   The officer asked him to exit the truck and

arrested him.   After Christian was arrested and searched, the

police officer searched the rear storage bed of the truck and a

toolbox.   As a result of that search, the officer seized a

telephone answering machine.    The officer took the answering

machine to a nearby building, plugged the machine into an

electrical source, and played a tape found in the machine.
     In Robinson, the Supreme Court considered the permissible

scope of the search of the person of Robinson, the arrestee.     414

U.S. at 223-24.   During the search of his person, the officer

discovered a "crumpled" cigarette package, opened it, and found

heroin.    Id. at 223.   In deciding whether the package in

Robinson's pocket could be searched, the Court stated that "[t]he

justification or reason for the authority to search incident to a

lawful arrest rests quite as much on the need to disarm the

suspect in order to take him into custody as it does on the need

to preserve evidence on his person for later use at trial."      Id.

at 234 (emphasis added).    Upon that justification, the Court held



                                  11
"that in the case of a lawful custodial arrest a full search of

the person is not only an exception to the warrant requirement of

the Fourth Amendment, but is also a 'reasonable' search under

that Amendment."     Id. (emphasis added).

       The Court in Belton held only that when an occupant of a

motor vehicle is being arrested, the police may search the

passenger compartment of the vehicle without any specific showing

of an individualized apprehension of danger.     The Court's ruling

carefully and explicitly limited its holding to the passenger
compartment.    Indeed, the Court stated that the "holding

encompasses only the interior of the passenger compartment of an

automobile and does not encompass the trunk."     453 U.S. at 460-61

n.4.   The Court also declined to broaden the rule to include the

entire automobile.     Id. at 462-63 n.6.

       When Christian was arrested, he was seated in the driver's

seat of the passenger cabin of the pickup truck.     Unlike the

circumstances in Robinson, the police did not in this case seize

the tape from Christian's person.      As stated in Belton, the
rationale that permits the police to search Christian in a search

incident to arrest cannot be expanded to encompass a search of

the portion of the vehicle not occupied by him.     453 U.S. at 461.

Exceptions to the Fourth Amendment are "jealously and carefully

drawn."    Jones v. United States, 357 U.S. 493, 499 (1958).

Nothing in either Belton or Robinson allows the police to conduct

a warrantless search of the entire truck under the guise of a



                                  12
search of an arrestee incident to the arrest.    Furthermore, none

of the cases cited by the Commonwealth or the majority sanction

the playing of the tape seized from the telephone recording

machine without a warrant.     See United States v. Turk, 526 F.2d

654, 665-66 (5th Cir. 1976).

     I would uphold the trial judge's ruling that the playing of

a tape seized from the answering machine that was in the rear of

the truck, physically separated from the passenger cabin, was an

unlawful search.   Therefore, I dissent.




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