                               COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Haley and Petty
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                                              MEMORANDUM OPINION* BY
v.     Record No. 2729-06-3                                  JUDGE ROBERT J. HUMPHREYS
                                                                    APRIL 16, 2007
WANDA ALICE BLEVINS


                         FROM THE CIRCUIT COURT OF LEE COUNTY
                                   Birg E. Sergent, Judge

                 Eugene Murphy, Senior Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on briefs), for appellant.

                 Carl E. McAfee, for appellee.


       In this appeal, the Commonwealth argues that the trial court erred in suppressing physical

evidence obtained from an investigative traffic stop. Specifically, the Commonwealth argues

that: (1) the police had reasonable suspicion to stop the vehicle in which the defendant was

riding, (2) Blevins did not have standing to challenge the search of the car or the owner’s consent

thereto, and (3) Blevins did not establish standing to object because of the particular

circumstances of her case. For the reasons that follow, we hold that Blevins does not have

standing to challenge the search, and thus we need not address the reasonable suspicion for the

stop. We reverse the trial court and remand for further proceedings consistent with this opinion.

                                            ANALYSIS

       “In an appeal by the Commonwealth of an order of the trial court suppressing evidence,

the evidence must be viewed in the light most favorable to the defendant and findings of fact are


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
entitled to a presumption of correctness unless they are plainly wrong or without evidence to

support them.” Commonwealth v. Peterson, 15 Va. App. 486, 487, 424 S.E.2d 722, 723 (1992).

However, “the ultimate question whether the officers violated the Fourth Amendment triggers

de novo scrutiny[.]” Kyer v. Commonwealth, 45 Va. App. 473, 479, 612 S.E.2d 213, 216

(2005).

          It is well established that remedies for violations of constitutional rights are only allowed

to someone who “belongs to the class for whose sake the constitutional protection is given[.]”

Hatch v. Reardon, 204 U.S. 152, 160 (1907). Furthermore, “[i]t is entirely proper to require of

one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence

that he . . . establish that he himself was the victim of an invasion of privacy.” Josephs v.

Commonwealth, 10 Va. App. 87, 91, 390 S.E.2d 491, 493 (1990) (en banc) (quoting Jones v.

United States, 362 U.S. 257, 261 (1960)). The right to make such a challenge is known as

standing. Id.

          The United States Supreme Court announced its most recent standard for determining

whether an individual has standing to challenge an alleged constitutional violation in Rakas v.

Illinois, 439 U.S. 128 (1978). Under Rakas, an individual has the requisite standing if that

individual “has a legitimate expectation of privacy in the invaded place.” Id. at 143. The Court

went on to hold that the petitioners in Rakas, who were passengers in a vehicle stopped by the

police, did not have a legitimate expectation of privacy in another’s car, and thus had no standing

to challenge the search of the car. Id. at 148. In fact, the Court specifically stated that “[a]

person who is aggrieved by an illegal search and seizure only through the introduction of

damaging evidence secured by a search of a third person’s premises or property has not had any

of his Fourth Amendment rights infringed.” Id. at 134. Furthermore, an individual who

disclaims ownership in luggage or a container forfeits any Fourth Amendment protections he or

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she may have had in it. See Wechsler v. Commonwealth, 20 Va. App. 162, 173, 455 S.E.2d 744,

749 (1995) (man who disclaimed ownership of luggage at an airport forfeited any Fourth

Amendment rights he had in the luggage).

        The trial court held, albeit inartfully, that Blevins had standing to challenge the traffic

stop, and that the driver’s consent was a “fruit of the poisonous tree” because it was not

sufficiently attenuated from the unlawful stop to be purged of the original taint. See Walls v.

Commonwealth, 2 Va. App. 639, 651, 347 S.E.2d 175, 182 (1986); Wong Sun v. United States,

371 U.S. 471, 488 (1963).

        Whether or not Blevins had standing to challenge the stop is unimportant to our analysis.

As a passenger, Blevins has no reasonable expectation of privacy in the vehicle, and therefore

has no standing to challenge its search. See Rakas, 439 U.S. at 148. Because she did not claim

ownership of the cup when asked about it by the police, Blevins lacks standing to challenge the

search of the cup as well. See Wechsler, 20 Va. App. at 173, 455 S.E.2d at 749. The search

yielding the oxycontin resulted directly from the driver’s consent to search the vehicle, not from

the stop of the vehicle. Because Blevins lacks standing to challenge the search of the driver’s

vehicle, it necessarily follows that she lacks standing to assert any constitutional defect in the

driver’s consent to search the vehicle. See Rakas, 439 U.S. at 148. Therefore, we need not and

do not address either the validity of the stop, or the attenuation of the driver’s consent from the

stop.

        Blevins also argues that she has standing to challenge the search because of information

contained in another passenger and co-owner’s pre-sentence report stating Blevins paid him $70

to ride in the car. Based on this, Blevins argues that she was the functional equivalent of a lessee

of the vehicle, and therefore had a reasonable expectation of privacy in the vehicle. Because it

does not appear that the trial court considered this evidence when making its ruling, we will not

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address it on appeal. Cf. Nicholson v. Nicholson, 21 Va. App. 231, 237 n.4, 463 S.E.2d 334, 337

n.4 (1995) (holding a piece of evidence not properly admitted into evidence, but viewed and

considered by the trial court will be considered on appeal).

       We reverse the judgment of the trial court granting the motion to suppress, and remand

this case to the trial court for further proceedings consistent with this opinion.

                                                                            Reversed and remanded.




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