                   COURT OF APPEALS OF VIRGINIA


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


ANTOINE HARVEY SQUIRE
                                         MEMORANDUM OPINION * BY
v.   Record No. 2824-99-2            JUDGE RUDOLPH BUMGARDNER, III
                                             OCTOBER 17, 2000
COMMONWEALTH OF VIRGINIA


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

          W. Edward Riley, IV (Boone, Beale, Cosby &
          Long, on brief), for appellant.

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


     Antoine Harvey Squire appeals his conviction of possession

with intent to distribute marijuana and possession of marijuana

after having been convicted of a similar offense in violation of

Code §§ 18.2-248.1 and -250.1.   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


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
de novo the ultimate questions of reasonable suspicion and

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

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 owned by the defendant for

playing loud music.   Daitrone Hargrove drove, 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

Hargrove at his patrol car, two additional officers, Perkins and

Moore, arrived.    Stromberg determined the licenses were valid

but also learned Hargrove was only 18 years old.   Stromberg

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

defendant'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 the defendant if he "minded" if Stromberg

searched the van.   The defendant replied, "No," but Stromberg

was unsure whether the defendant was consenting.   He asked

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

defendant 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



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face forward, Perkins announced that he saw an open beer in the

vehicle.

     Stromberg had Hargrove step out of the van.    As he did,

Stromberg smelled alcohol on Hargrove's breath and saw a

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

Hargrove 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.   Later, the defendant admitted

the backpack was his.

     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 Hargrove 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 Hargrove

stepped out of the car, Stromberg smelled alcohol on his breath,

and Hargrove admitted drinking.     That additional information

provided probable cause to arrest Hargrove for driving under the

influence or driving after consuming alcohol.     "[A]n

individual's expectation of privacy in a vehicle and its




     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 -
contents may not survive if probable cause is given to believe

that the vehicle" contains contraband.    Ross, 456 U.S. at 823.

     The officers did not enter the van until Stromberg

determined Hargrove 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 the defendant denied owning it or

having any knowledge of it, he 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.   Accordingly, we affirm the convictions.

                                                            Affirmed.




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