                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Coleman and Bray
Argued at Richmond, Virginia


GARY LAMONT THOMPSON
                                         MEMORANDUM OPINION * BY
v.   Record No. 2395-98-2                 JUDGE RICHARD S. BRAY
                                             FEBRUARY 1, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                 Ernest P. Gates, Judge Designate

          Gregory W. Franklin, Assistant Public
          Defender (David J. Johnson, Public Defender,
          on brief), for appellant.

          Michael T. Judge, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Gary Lamont Thompson (defendant) was convicted in a bench

trial for possession of cocaine with intent to distribute.   On

appeal, he contends that the trial court erroneously denied his

motion to suppress evidence seized in violation of the Fourth

Amendment during an inventory search of an automobile.    We agree

and reverse the conviction.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.



     *
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     "In reviewing a trial court's denial of a motion to suppress,

'the burden is upon the defendant to show that the ruling, when

the evidence is considered most favorably to the Commonwealth,

constituted reversible error.'"    McGee v. Commonwealth, 25 Va.

App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Fore

v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert.

denied, 449 U.S. 1017 (1980)).    "Ultimate questions of reasonable

suspicion and probable cause to make a warrantless search" involve

issues of both law and fact, reviewable de novo on appeal.

Ornelas v. United States, 517 U.S. 690, 699 (1996).   However,

"[i]n performing such analysis, we are bound by the trial court's

findings of historical fact unless 'plainly wrong' or without

evidence to support them and we give due weight to the inferences

drawn from those facts by resident judges and local law

enforcement officers."    McGee, 25 Va. App. at 198, 487 S.E.2d at

261 (citation omitted).

     On April 29, 1997, Richmond Detective William Burnette and

Police Officer Charles Battle observed defendant operating a

vehicle bearing an expired city decal.   Battle "turned around and

got in behind" defendant but did not activate pursuit lights or

siren.   Defendant immediately "took off at a high rate of speed,"

traveled one block, "pulled over . . . real quick" and properly

parked along the street.   Defendant then locked the car, "jumped

from the vehicle, ran into the [adjacent] house," and "closed the

door."   As defendant progressed toward the house, the officers

                                 - 2 -
"told him to stop that he had an expired decal . . . and [they]

wanted to talk to him about it."

     Pursuing an investigation, the officers knocked at the door

of the residence, without response, "called the tags [of the

vehicle] in," and learned that it was registered to Barbara Scott 1

and had not been reported stolen.   A woman then exited the house,

approached, and engaged Burnette and Battle in conversation.

Police determined that the car was not the property of the woman

but sought her assistance "to get the gentleman and come back

outside."    She then re-entered the home, returning shortly to

report that defendant "refused to come out."   Subsequent efforts

to coax defendant from the residence were unsuccessful.

     Uncertain "whether [defendant's possession of the car] was

unauthorized use or not," the officers decided to impound it "for

investigation until [they] could contact the owner" and summoned a

tow truck.   Upon arrival of the truck, the driver gained access to

the locked car using a "Slim Jim," and the officers undertook an

inventory of its contents pursuant to departmental procedure.

Inside a jacket found resting on the front seat, the officers

discovered "about seventy some hits of crack cocaine," the

offending contraband.




     1
       Subsequently, Barbara Scott confirmed her ownership of the
vehicle and that defendant "drove it that particular day for
[her]."


                                - 3 -
     In denying defendant's motion to suppress, the trial court

concluded that the seizure of the car was proper, because

"defendant [d]id not own it, ha[d] left the car and gone into the

house and essentially refuse[d] to come back out and identify who

owns the car," and approved an inventory search incidental to

impoundment.   The Commonwealth counters defendant's continued

Fourth Amendment challenge on appeal with argument that he had no

expectation of privacy in an abandoned vehicle, and police acted

reasonably under the circumstances.

                            I.   Standing

     "A warrantless search is per se unreasonable and violative of

the Fourth Amendment of the United States Constitution, subject to

certain exceptions."   Tipton v. Commonwealth, 18 Va. App. 370,

373, 444 S.E.2d 1, 3 (1994) (citation omitted).   However, "[a]

defendant can only claim a Fourth Amendment violation if he

possesses a reasonable expectation of privacy in the object seized

or the place searched."   Hardy v. Commonwealth, 17 Va. App. 677,

680, 440 S.E.2d 434, 436 (1994) (citations omitted).    "The test is

whether the appellant 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 v. Commonwealth, 2 Va.

App. 309, 311, 343 S.E.2d 383, 385 (1986) (citations omitted).

     In addressing standing in the context of motor vehicles, we

have previously ruled that "[a]n accused has standing to object to

                                 - 4 -
a search of an automobile . . . if he is the owner or in lawful

possession of it."    Hardy, 17 Va. App. at 680, 440 S.E.2d at 436

(citation omitted).   Thus, "the mere fact that a vehicle is

borrowed does not diminish the borrower's reasonable expectation

of privacy in it."    Id. (citations omitted).

     Generally, "[a] warrantless seizure of abandoned property is

not a violation of the Fourth Amendment."   Commonwealth v.

Holloway, 9 Va. App. 11, 17-18, 384 S.E.2d 99, 103 (1989).

          One who voluntarily abandons property
          forfeits any expectation of privacy he or
          she may have in it. [United States v.
          Thomas, 864 F.2d 843, 845 (D.C. Cir. 1989)].
          Therefore, he or she has no standing to
          complain of the property's search and
          seizure. United States v. Kendall, 655 F.2d
          199, 200 (9th Cir. 1981).

          Abandonment in the context of the Fourth
          Amendment is different from the property law
          concept of abandonment. Thomas, 864 F.2d at
          845; United States v. Jackson, 544 F.2d 407,
          409 (9th Cir. 1976). A person may retain a
          property interest in personal property
          while, at the same time, relinquishing his
          or her reasonable expectation of privacy in
          that property. Id. A person's "[i]ntent to
          retain a reasonable expectation of privacy"
          determines whether the property has been
          abandoned so as to permit its seizure
          without a warrant. Kendall, 655 F.2d at
          200.

          Whether a person intends to retain a
          reasonable expectation of privacy in
          property is to be determined by objective
          standards. United States v. Nordling, 804
          F.2d 1466, 1469 (9th Cir. 1986); Kendall,
          655 F.2d at 201; contra United States v.
          Knox, 839 F.2d 285, 293 (6th Cir. 1988).
          Such an intent may be inferred from words,


                                - 5 -
             acts, and other objective facts. Nordling,
             804 F.2d at 1469; Jackson, 544 F.2d at 409.

             The determination of this intent must be
             made after consideration of all relevant
             circumstances, but two factors are
             particularly important: denial of ownership
             and physical relinquishment of the property.
             Nordling, 804 F.2d at 1469. If a person
             relinquishes possession and disclaims
             ownership of personal property, he or she
             surrenders any expectation of privacy in
             that property. United States v. McKennon,
             814 F.2d 1539, 1546 (11th Cir. 1987).

Id. at 18, 384 S.E.2d at 103.

     Here, the Commonwealth's reliance on abandonment to deny

defendant standing to object to the warrantless search is

misplaced.    In contrast to abandonment, defendant's conduct was

consistent with the continuing assertion of an established

possessory right and an attendant expectation of privacy in the

vehicle.   He properly parked the car on a public street, locked

the doors, and proceeded into the adjacent house.    Under such

circumstances, his refusal to engage in a consensual encounter

with the officers, despite their repeated entreaties, did not

manifest abandonment. 2

                            II.   The Search

     The Commonwealth's contention that the seizure and search

of the vehicle was supported by probable cause is likewise

without merit.    "[P]robable cause is a flexible, common sense


     2
       The record does not disclose that the police intended to
issue defendant a summons. See Code § 19.2-74.


                                  - 6 -
standard.   It merely requires that the facts available to the

officer would 'warrant a man of reasonable caution in the

belief,' that certain items may be contraband or stolen property

or useful as evidence of a crime[.]"     Texas v. Brown, 460 U.S.

730, 742 (1983) (citation omitted).

     On the instant record, defendant's unwillingness to speak

with police, together with information that the vehicle was

registered to a female, clearly did not give rise to probable

cause to believe that the car was stolen or otherwise implicated

in criminal activity, especially when police were aware that the

car had not been reported stolen. 3    Citizens routinely operate

vehicles owned by others of a different gender and oftentimes

quite properly elect not to converse with police. 4

     Accordingly, the seizure and search of the vehicle was

constitutionally impermissible under the circumstances of this

case, and the court erroneously admitted the resulting evidence.

We, therefore, reverse the conviction.
                                           Reversed and dismissed.




     3
       The record does not suggest that impoundment was prompted
by the expired inspection decal.
     4
       Illinois v. Wardlow, ___ U.S. ___ (2000), decided after
the instant appeal was briefed and argued before this Court,
does not alter the result, although the decision may have
provided support for a Terry stop of defendant.

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