                     COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Bumgardner and Frank
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                           MEMORANDUM OPINION * BY
v.   Record No. 1706-01-1                   JUDGE RICHARD S. BRAY
                                              DECEMBER 20, 2001
KENNETH WASHINGTON


         FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                      Randolph T. West, Judge

           Stephen R. McCullough, Assistant Attorney
           General (Randolph A. Beales, Attorney
           General, on brief), for appellant.

           Robert W. Lawrence for appellee.


     Kenneth Washington (defendant) was indicted in the trial

court for felonious assault and battery of a police officer in

violation of Code § 18.2-57(C). 1   Contending the offense resulted

from an unconstitutional search and seizure, defendant

successfully moved the court to suppress "any and all statements,

acts or other conduct that may be the basis of the" indictment.

The Commonwealth appeals pursuant to Code § 19.2-398, arguing,


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Defendant was convicted by a jury of the subject offense
in a prior trial. However, by unpublished opinion, a panel of
this Court reversed the decision and remanded the proceedings,
finding the trial court had erroneously refused to admit a
certain audio recording into evidence. See Washington v.
Commonwealth, No. 2157-99-1 (Va. Ct. App. Jan. 9, 2001).
inter alia, that defendant failed to establish the standing

necessary to challenge the search by police.   We agree and reverse

the trial court.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

                                 I.

     Upon appellate review of a ruling on a motion to suppress

evidence, we consider the evidence in the light most favorable to

the prevailing party below, defendant in this instance, together

with all reasonable inferences fairly deducible from such

evidence.   Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407

S.E.2d 47, 48 (1991).   The burden is upon the Commonwealth "to

show the trial judge's ruling . . . constituted reversible error."

Green v. Commonwealth, 27 Va. App. 646, 652, 500 S.E.2d 835, 838

(1998).   We review the trial court's findings of historical fact

only for "clear error," but review de novo the court's application

of defined legal standards to the particular facts of a case.     See

Shears v. Commonwealth, 23 Va. App. 394, 398, 477 S.E.2d 309, 311

(1996).

     The sole evidence before us on appeal is the uncontroverted

testimony of Newport News Police Detective Best, and former

officer Holloway, witnesses presented by defendant at the




                               - 2 -
suppression hearing. 2     Detective Best testified that, on January

12, 1998, a confidential informant reported that a "black male"

"six feet in height, approximately 200 to 210 pounds, medium brown

complexion, 27 to 30 years old, with a close haircut, . . . known

as Mickey, was selling cocaine from 1507 Ivy Avenue."      Acting on

the tip, Best obtained a search warrant for the designated

premises and "a black male known as Mickey." 3

       The following evening, at approximately 7:10 p.m., Best and

Holloway, accompanied by several additional police officers,

proceeded to the specified address, a residence located in the

City of Newport News.      Holloway, dressed in "[k]haki corduroy

pants," "a green Philadelphia Eagles baseball style hat and a blue

and green windbreaker," knocked at the door, and defendant

responded, opening the door "18 inches or so."      Although Holloway

did not recognize defendant, he inquired, "Hey, Mickey, what's

up?"       Defendant was unresponsive and, after "a few seconds,"

Holloway "pushed open the door the rest of the way," announced

"Police.       Search warrant," and entered the residence, followed by

"[t]he rest of the team," all "screaming, 'Police.      Search

warrant. . . .'"


       2
       The transcript of the earlier prosecution is not a part of
the instant record and, notwithstanding defendant's repeated
references to facts perhaps developed in such proceeding, we are
confined to the record before us.
       3
       Defendant does not challenge the validity of the search
warrant.


                                   - 3 -
     As Holloway entered into the home, he pushed defendant

"fifteen feet back" against "an entertainment center" and "pinned

[him] there, to ensure the safety of the rest of the team" and

prevent a "bottleneck at the entrance."   "Once . . . against the

entertainment center," defendant "grabbed [Holloway's] weapon" and

a brief struggle ensued, resulting in the arrest of defendant for

the subject offense.

     Defendant filed a pretrial motion to suppress "any and all

statements, acts or other conduct that may be the basis of the

assault and battery as the seizure and warrantless arrest of [his

person] was a violation of [the] Fourth Amendment."   In support of

his related argument that police had "no authority . . . to grab

him and forcibly try to detain and handcuff him," defendant

expressly relied upon Michigan v. Summers, 452 U.S. 692 (1981),

and its progeny.   At the conclusion of the suppression hearing,

the following exchange occurred between the court and counsel:

          THE COURT: The only issue I am willing to
          review at this point is whether or not what
          I consider an illegal entry was made in the
          detention of the defendant in this
          case. . . .

          [DEFENSE COUNSEL]: What about the arrest
          issue, that it was an illegal arrest? How
          much force can be used or what do you need
          to have for him to be arrested? He wasn't
          free to leave. They physically tried to
          detain him without sufficient foundation.

The court then directed counsel to submit memoranda addressing the

question, promising "a decision prior to the trial date."


                               - 4 -
     As a threshold issue to the concerns expressed by the trial

court, the prosecutor contended on memo that "defendant did not

have standing to object to the execution of the search warrant."

In responsive correspondence to the court, defendant ignored the

"illegal entry" issue raised by the trial court and the related

challenge to standing.    Instead, defendant continued to insist

"the seizure of [his person] went beyond the deminimus [sic]

detention necessitated [sic] to do a pat down or frisk" and

constituted an "attempted . . . illegal arrest in violation of the

Fourth Amendment."

     The trial court subsequently granted the motion to suppress,

concluding "defendant's rights under the Fourth Amendment . . .

were violated . . . [when] police . . . failed to comply with the

knock and announce rule," again faulting the police entry and

ignoring defendant's seizure/arrest argument.   The Commonwealth

appeals to this Court.

                                    II.

     As a threshold issue, the Commonwealth contends the record

fails to demonstrate standing in defendant to object to entry by

police upon the premises, a necessary predicate to support the

court's rationale. 4   We agree.




     4
       On appeal, defendant for the first time adopts the
reasoning of the trial court.


                                   - 5 -
     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).   Thus, "[i]n order to obtain protection

against unreasonable searches and seizures, [an accused] bears the

burden of proving that he has standing to assert the

constitutional right."    McCoy v. Commonwealth, 2 Va. App. 309,

311, 343 S.E.2d 383, 384 (1986) (citation omitted).

     "The test is whether the [defendant] objectively had a

reasonable expectation of privacy at the time and place of the

disputed search.   In making the analysis the court looks to the

totality-of-the-circumstances."   McCoy, 2 Va. App. at 311, 343

S.E.2d at 385 (citing Rawlings v. Kentucky, 448 U.S. 98, 104

(1980); Rakas v. Illinois, 439 U.S. 128, 143 (1978)).   "[F]actors

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."   Commonwealth v.

Ealy, 12 Va. App. 744, 751, 407 S.E.2d 681, 685 (1991) (citing

McCoy, 2 Va. App. at 312, 343 S.E.2d at 385).

     The record presently before us is silent with respect to the

circumstances surrounding defendant's presence on the premises at

the time of the search.   No evidence suggests a possessory

interest in the property, a right to exclude others from the

                                - 6 -
premises, precautions taken by defendant to maintain privacy or

other factors relevant to an objective assessment of his related

expectations.   Having thus failed to establish the requisite

standing, defendant may not avail himself of Fourth Amendment

protections against an unlawful entry onto the premises by police.

                                III.

     In Michigan v. Summers, 452 U.S. 692 (1981), the Supreme

Court of the United States recognized that "a warrant to search

for contraband founded on probable cause implicitly carries with

it the limited authority to detain the occupants of the premises

while a proper search is conducted."   Id. at 705 (footnote

omitted).   Among various "legitimate law enforcement

interest[s]" in such detention, the Court noted the "importance

. . . [of] minimizing the risk of harm to the officers," noting

"the execution of a warrant to search for narcotics . . . may

give rise to sudden violence or frantic efforts to conceal or

destroy evidence," circumstances that require "unquestioned

command of the situation" to protect both police and occupants.

Id. at 702-03 (footnote omitted); Welshman v. Commonwealth, 28

Va. App. 20, 30, 502 S.E.2d 122, 127 (1998) (en banc); Allen v.

Commonwealth, 3 Va. App. 657, 661-62, 353 S.E.2d 162, 165 (1987).

     Thus, the police, while executing the instant search warrant,

were permitted to briefly seize and detain defendant, physically

present in the residence during the search, to facilitate access

to the premises, permit a proper search and insure the safety of

                               - 7 -
the officers and other occupants.   When defendant struggled with

police incident to such lawful detention, his conduct gave rise to

probable cause for arrest. 5

     Accordingly, we reverse the trial court and remand the case

for further proceedings in accordance with this opinion.

                                         Reversed and remanded.




     5
       Our resolution of the suppression issue is not intended to
implicate the merits of either the prosecution or defense in the
underlying cause.


                               - 8 -
