                     COURT OF APPEALS OF VIRGINIA

Present:   Judges Benton, Elder and Annunziata


COMMONWEALTH OF VIRGINIA

v.    Record No. 0705-95-2         MEMORANDUM OPINION * BY
                                JUDGE ROSEMARIE P. ANNUNZIATA
DAVID WINTHROP PASCHALL              SEPTEMBER 20, 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.
             Shanon S. Echols for appellee.



     The appellee, David Winthrop Paschall, 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 the appellee's 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;

and (3) that the trial court erred in finding that the evidence

failed to establish the probable cause necessary under the "plain
     *Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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 Gary Lee Christian, Paschall's co-defendant, 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

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

pocket.   Officer Wagner placed Christian in his patrol car and




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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.

        During this time, Paschall remained in the truck's passenger

seat.    Officer Barbour then arrived on the scene and approached

Paschall.    Officer Barbour arrested Paschall after finding a

concealed gun on the truck's front seat.

        While both subjects were handcuffed, Officer Wagner searched

both the bed of the truck and a toolbox contained therein.

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.    Paschall claimed to know nothing about the items.    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.    Paschall'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.
                                   A




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     Paschall 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

Paschall'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.   With

respect to the office equipment, the Commonwealth elicited

testimony that Paschall claimed to have no knowledge of the

office equipment found in the back of the truck.   In addition,

the Commonwealth made clear that it was contesting standing to

challenge the suppression of the office equipment by seeking to

have admitted a stipulation entered into by Paschall that the

church owned the equipment.   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 Paschall failed to establish standing with

respect to either the truck or the tape machine.   Although

Paschall did not address the issue in his brief, his co-defendant

who participated fully in the suppression hearing, filed a brief

addressing the issue, contending, in effect, that the

Commonwealth had the burden to establish that the appellees 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 that all 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 Paschall, 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 "passenger."

 See Delong v. Commonwealth, 234 Va. 357, 363, 362 S.E.2d 669,

672 (1987).   A passenger who fails to assert an interest in

either the vehicle or in the property seized lacks standing.
Rakas v. Illinois, 439 U.S. 128, 148 (1978); see also Arnold v.

Commonwealth, 17 Va. App. 313, 316, 437 S.E.2d 235, 237 (1993).

     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



                                 5
the allegation is disputed, establish that he himself was the

victim of an invasion of privacy); Josephs, 10 Va. App. at 91,

390 S.E.2d at 493; 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 Paschall had a legitimate interest in the

truck.   Nor did Paschall produce evidence of his standing to

challenge the search of the items.   Indeed, he denied having any

knowledge of them.   Having failed to meet the burden, Paschall

cannot claim standing to challenge the search of either the truck

or the answering machine.
                                 B

     Even if we assume Paschall 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




                                 6
(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

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.

     Both Paschall and his co-defendant, Christian, were lawfully

arrested.   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 either Paschall or 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.    During this time, Paschall




                                  7
remained with the truck.   Thus, the open bed of the truck

remained an area into which Christian or Paschall might have

reached during the time Officer Wagner was in contact with them.

     A valid search incident to arrest extends throughout the

area searched, allowing the police to search thoroughly any

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 Paschall's arrest.

     For the reasons stated above, this case is reversed and

remanded.

                                             Reversed and remanded.




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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

Paschall was a passenger in the vehicle.    His presence in the

vehicle established that he had a possessory interest in the

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

sufficient to prove that Paschall was lawfully present in the

truck, had a possessory interest in its contents, and had a

reasonable expectation of privacy in the vehicle and its

contents.    No evidence proved that the vehicle was not Paschall's

or was not lawfully in Paschall's possession and control.
     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



                                   9
Paschall to be lawfully in the vehicle.

     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 Paschall was in the passenger

portion of the truck when the police officer questioned him.     The

officer asked him to exit the truck and arrested him.   After

Paschall was arrested and searched, the police officer searched

the rear storage bed of the truck and a tool box.   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.




                                 10
at 234 (emphasis added).    Upon that justification, the Court held

"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 Paschall was arrested he was seated in a seat within

the passenger's cabin of the pickup truck.      Unlike the

circumstances in Robinson, the police did not in this case seize
the tape from Paschall's person.       As stated in Belton, the

rationale that permits the police to search Paschall 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



                                  11
a warrantless search of the entire truck under the guise of a

search of an arrestee incident to an 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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