COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

BARRY THOMAS JOHNSON 

 OPINION BY 

v. Record No. 1791-96-1 JUDGE JOSEPH E. BAKER 

 FEBRUARY 24, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ACCOMACK COUNTY 

Glen A. Tyler, Judge 

 Jon C. Poulson for appellant. 

 John K. Byrum, Jr., Assistant Attorney 

General (Richard Cullen, Attorney General, on 

brief), for appellee. 

 Barry Thomas Johnson (appellant) was convicted in a bench 

trial in the Accomack County Circuit Court for "failure to tag 

striped bass after bringing to shore" in violation of Code 

§ 28.2-201 and Virginia Regulation 450-01-0104.1 On appeal, he 

contends the trial court erroneously denied his motion to 

suppress evidence seized during a warrantless search of his 

business premises. The Commonwealth contends the administrative 

search exception to the warrant requirement validated the search 

or, alternatively, that appellant had no reasonable expectation 

of privacy in the area searched. We conclude that the 

Commonwealth waived its right to assert the administrative search 

exception as a basis for the search when it conceded in the trial 

 

 1This regulation, originally codified at 4 VAC 20-251-10, 

has been renumbered, and an amended version may be found at 4 VAC 

20-252-10. 
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court that the exception did not apply, and we hold that the 

search violated the Fourth Amendment. For the reasons set forth 

more fully below, we reverse appellant's conviction. 

Background

 At about 10:30 a.m. on January 30, 1996, Officer Judith 

Mackley of the Virginia Marine Resources Commission (VMRC) 

entered onto the Onancock fish house property, co-leased by 

appellant, in order to "conduct an inspection of seafood." She 

did not have a search warrant. 

 The fish house property is comprised of (1) a warehouse 

building, approximately "180 foot square," with a small office in 

the southwest corner and (2) a dock adjacent to the Onancock 

Creek on the west. The property is bounded on the north and west 

by the Onancock Creek. A right-of-way leading due south from the 

southeast corner of the warehouse property connects it to King 

Street, a public thoroughfare. The property to the south of the 

warehouse and west of the right-of-way is the Walker Gravel 

Company. 

 On January 30, 1996, the entrance to the gravel company 

property bore three signs: a "POSTED private property" sign on 

the building to the left of the entrance; a "PRIVATE PROPERTY NO 

TRESPASSING" sign hanging from a chain across an opening in the 

fence which served as the entrance; and a "NO TRESPASSING" sign 

on the fence to the right of the entrance. However, the chain 

was down in order to permit entry during Walker's business hours. 
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 Appellant and his co-lessees had permission to use the Walker 

property. 

 Mackley parked on the gravel company lot on the south side 

and walked onto the fish house property through an opening in the 

fence and toward "NO TRESPASSING" and "DANGER KEEP OUT" signs 

posted on the south side of the warehouse. Mackley understood 

that the signs meant "[y]ou cannot go onto that property or 

ground," but she nevertheless proceeded past the signs and the 

entrance to the office and walked down the dock on the west side 

of the building. The weather was cold and drizzly, and all doors 

on the south side of the building were closed. 

 After walking approximately seventy feet down the dock, 

Mackley saw about thirty untagged striped bass below the gunnel 

on the deck of appellant's boat, the Lady Bea, which was moored 

to the dock. Mackley walked further, looked through an open 

ten-by-ten-foot door on the right, and saw appellant's mate weigh 

an untagged striped bass and drop it into an iced seafood box. A 

conveyor belt moved the fish from the boat through the open door 

into the warehouse's packing area. The fish could not have been 

"offloaded . . . without the door being open." 

 Appellant, who was in the office, saw Mackley walk past the 

office window toward the dock packing area, and he proceeded to 

the packing area, as well. When he rounded the corner, Mackley 

pointed to the fish in the open box, and appellant confirmed that 

they were his. He also confirmed that the fish on his boat were 
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his. Appellant "immediately" asked, "When are you supposed to 

tag them?" Mackley replied, "[Y]ou're supposed to tag them as 

soon as you capture them and certainly by the time you get to 

shore." Appellant responded, "Nobody tells me nothing. I didn't 

know that you were supposed to tag them." Mackley then walked 

through the open warehouse door, put her hands on eleven closed 

seafood boxes sitting on a pallet and asked appellant if they 

were his. When he responded affirmatively, she removed the lids 

and discovered additional untagged striped bass. She seized all 

the untagged fish. Mackley agreed that she had seen nothing 

illegal on appellant's boat or inside the warehouse until she had 

entered the property and walked down the dock. 

 The evidence showed that appellant and five other men, 

including James Stalgaitis and Sam Swift, leased the warehouse 

and property jointly and had done so for about ten years. The 

men were all watermen, working separately, who used the property 

to store equipment, dock their boats and pack fish for wholesale, 

not retail, sale. They all used the whole premises, which 

included a cooler and an ice machine, and did not have separate 

storage areas. The property had been posted for the duration of 

their lease. It was not open to the general public, and entry 

was by invitation only. Each co-lessee had a key to the premises 

and the right to exclude others subject to the majority rule. 

The building was poorly lit, and two of the lessees testified 

that when the door facing King Street or the door facing Onancock 
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Creek was open, "It's a dark place." "All you will see [from the 

street or the creek] . . . is a black hole. You can't see 

through the building" and "would [not] really know what was 

there." 

 Appellant offered evidence that the last waterman to return 

each evening was responsible for securing the warehouse premises. 

 The Commonwealth presented evidence that the local police had 

found the darkened warehouse open and apparently untended on 

fifteen to twenty occasions during the year prior to trial. On 

cross-examination, the police officer admitted that he did not 

actually search the premises and did not know whether any of the 

watermen were still on the way to shore in their boats. 

 In the year prior to January 30, 1996, Mackley had been on 

the fish house property nine times to conduct seafood inspections 

and to check the condemned area of the adjacent Onancock Creek. 

On none of those occasions did she announce that she was coming 

or ask for permission to be on the property. On one occasion 

during August of 1995, Stalgaitis found Mackley on appellant's 

boat, which was moored at the warehouse dock, when appellant was 

not on the premises. She was "looking in the fish box." 

Stalgaitis told her, "[T]his is private property. . . . The boat 

is private and you really don't have the authority to do this." 

Mackley responded that she had the authority and that appellant 

had given her permission. 

 Mackley testified that she did not remember the conversation 
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very well, but confirmed that a conversation took place while she 

was on appellant's boat and that she told Stalgaitis she had "the 

right to make an inspection." She indicated that she had boarded 

the boat "when [appellant] was there" and that she might have 

asked for his consent. She did not believe that Stalgaitis told 

her the dock and the boat were private property, but said that 

"[h]e might have." She conceded that other than the August 1995 

incident when appellant may have given her permission to search, 

neither appellant nor any of his co-lessees had given her 

permission to come onto the property. 

 In addition to Mackley, other VMRC officials visited the 

warehouse property for various purposes, including posting 

notices and conducting inspections. Other than Stalgaitis' 

August 1995 encounter with Mackley, the watermen did not 

challenge the authority of the VMRC officers to be on the 

premises, but none gave them blanket permission to be on the 

premises. Some of the officers routinely came to the office 

first to ask permission to visit the rest of the property, and 

some did not. All wore uniforms, badges, and guns. Appellant 

and his co-lessees did not know the nature or scope of VMRC 

authority to come onto their property. Officer Landon admitted 

that a person refusing or interfering with an inspection could be 

charged for that offense. 

 Appellant admitted that as of January 30, 1996, he was not 

certain whether their lease covered the dock area. He admitted 
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that it was not unusual for people other than wholesalers to come 

to the property, but indicated that he would ask what they 

wanted. 

 At the request of the trial court, appellant and the 

Commonwealth's attorney reviewed case law relating to the 

administrative search exception to the warrant requirement, and 

both represented to the trial court that the exception did not 

apply in this case. Based on the parties' representations and 

its own review of the relevant legal principles, the trial court 

held that the VMRC had no administrative authority to conduct a 

warrantless inspection or search of the premises for untagged 

striped bass. However, it held that appellant had no subjective 

expectation of privacy in the dock and warehouse because he and 

his co-lessees allowed other people, including VMRC officials, on 

the property for a variety of reasons and that the untagged fish 

were in plain view of both those on the property and those on the 

navigable waters of Onancock Creek. It noted that when appellant 

left the fish in plain view of his co-lessees, he showed that he 

had no legitimate expectation of privacy in them. 

 The trial court appeared to conclude that the viewing of the 

warehouse was a "search," but held that it was reasonable under 

the circumstances: "Once the officer observed the [untagged fish 

in the boat], she then could legitimately look to her right, 

through the open door and see the fish on the scale," and exigent 

circumstances permitted her to investigate because the fish were 
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being boxed for imminent removal. Ultimately, it held that the 

 fish in the boat would be sufficient for the 

Commonwealth to prevail in its 

prosecution. . . . Were it not for the fact 

that defendant's boat lay, though moored 

ashore, in public waters laden with untagged 

striped bass for all to see, including the 

other tenant present at the time, this case 

may have been different. 
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Reasonableness of the Search Under the Fourth Amendment

 In reviewing a trial court's denial of a motion to suppress, 

"[t]he burden is upon [appellant] to show that this ruling, when 

the evidence is considered most favorably to the Commonwealth, 

constituted reversible error." Fore v. Commonwealth, 220 Va. 

1007, 1010, 265 S.E.2d 729, 731 (1980). "Ultimate questions of 

reasonable suspicion and probable cause to make a warrantless 

search" involve issues of both law and fact and are reviewed de

novo on appeal. See Ornelas v. United States, 116 S. Ct. 1657, 

1659 (1996). "In 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 v. Commonwealth, 25 Va. 

App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing 

Ornelas, 116 S. Ct. at 1663). 

 The Fourth Amendment to the United States Constitution 

protects "[t]he right of the people to be secure in their 

persons, houses, papers, and effects, against unreasonable 

searches and seizures." U.S. Const. amend. IV. These 

protections apply to people, not places, see Katz v. United 

States, 389 U.S. 347, 351 (1967), and may, therefore, extend to 

commercial premises as well as private residences. See Dow Chem. 

Co. v. United States, 476 U.S. 227, 235 (1986). "The 

businessman, like the occupant of a residence, has a 
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constitutional right to go about his business free from 

unreasonable official entries upon his private commercial 

property." See v. City of Seattle, 387 U.S. 541, 543 (1967). 

Therefore, the Fourth Amendment prohibits warrantless intrusions 

into non-public areas of a business unless a recognized exception 

to the warrant requirement is established. See Marshall v. 

Barlow's, Inc., 436 U.S. 307, 312-13 (1978). 

 The United States Supreme Court has recognized an exception 

to the warrant requirement "where commercial premises of 'closely 

regulated industries' are searched." Commonwealth v. Burgan, 19 

Va. App. 172, 175, 450 S.E.2d 177, 178 (1994) (citing New York v. 

Burger, 482 U.S. 691, 699-700 (1987)). An administrative search 

may be conducted without a warrant if the search satisfies three 

criteria: 

 First, "there must be a 'substantial' 

government interest that informs the 

regulatory scheme pursuant to which the 

inspection is made." Second, "the 

warrantless inspections must be 'necessary to 

further [the] regulatory scheme.'" Third, 

the inspection program must "provide a 

constitutionally adequate substitute for a 

warrant" by informing the owner that 

inspections will occur regularly, and 

notifying him or her of the permissible scope 

and who may conduct the inspections, as well 

as requiring that the permitted inspection is 

"carefully limited in time, place, and 

scope." 

Id. at 175, 450 S.E.2d at 178-79 (citations omitted) (quoting 

Burger, 482 U.S. at 702-03). 

 In this case, the Commonwealth's attorney conceded in the 
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trial court that "there is no regulatory scheme under Burger" 

that would permit application of the administrative search 

exception to the warrant requirement. The trial court agreed. 

Therefore, the Commonwealth is barred from asserting the 

exception as a basis for affirmance on appeal. See, e.g., Manns 

v. Commonwealth, 13 Va. App. 677, 679-80, 414 S.E.2d 613, 615 

(1992) (holding that a party, "having agreed upon the action 

taken by the trial court, should not be allowed to assume an 

inconsistent position") (quoting Clark v. Commonwealth, 220 Va. 

201, 214, 257 S.E.2d 784, 792 (1979)). 

 In the absence of application of the administrative search 

exception to the warrant requirement, we must apply general 

principles regarding searches of commercial premises. As a 

general rule, "there is a lesser expectation of privacy in 

commercial as contrasted with residential buildings." United 

States v. Bute, 43 F.3d 531, 536 (10th Cir. 1994). However, 

"classifying a building as 'commercial' is not dispositive as to 

the level of privacy that attaches to such premises." Id. A 

court must determine whether the individual maintains a 

legitimate expectation of privacy in the object or premises to be 

searched, which involves a two-part inquiry. See Wellford v. 

Commonwealth, 227 Va. 297, 301, 315 S.E.2d 235, 237 (1984). 

First, we must determine whether the individual has manifested "a 

subjective expectation of privacy" in the object of the 

challenged search. Id. This inquiry is a factual determination 
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to which we must give deference on appeal. See United States v. 

McBean, 861 F.2d 1570, 1573 (11th Cir. 1988). Second, we must 

determine whether the expectation of privacy is objectively 

reasonable, one that society is willing to recognize as 

legitimate. See Wellford, 227 Va. at 301, 315 S.E.2d at 237. 

This is a legal determination, requiring no deference on review. 

See McBean, 861 F.2d at 1573 n.7. 

 The United States Supreme Court long has held that "[t]he 

curtilage area immediately surrounding a private house" is "a 

place where the occupants have a reasonable and legitimate 

expectation of privacy that society is prepared to accept." Dow 

Chem., 476 U.S. at 235 (citing California v. Ciraolo, 476 U.S. 

207 (1986)). In contrast, "the Court has drawn a line as to what 

expectations are reasonable in the open areas beyond the 

curtilage of a dwelling: 'open fields do not provide the setting 

for those intimate activities that the [Fourth] Amendment is 

intended to shelter from governmental interference or 

surveillance.'" Id. (quoting Oliver v. United States, 466 U.S. 

170, 179 (1984)). An area "need be neither 'open' nor a 'field' 

as those terms are used in common speech." Id. at 236 (quoting 

Oliver, 466 U.S. at 180 n.11). 

 The United States Supreme Court applied the open fields 

doctrine in Dow Chemical to permit aerial surveillance of the 

open areas of a large industrial plant because those areas were 

"open to the view and observation of persons in aircraft lawfully 
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in the public airspace immediately above or sufficiently near the 

area for the reach of cameras." Id. at 239. It expressly noted, 

however, that the intrusion in this case occurred "without

physical entry." Id. at 237. It emphasized that "Dow's inner 

manufacturing areas [were] elaborately secured to ensure that 

they [were] not open or exposed to the public from the ground" 

and that "[a]ny actual physical entry . . . into any enclosed 

area would raise significantly different questions." Id. at 

236-37; see also id. at 239 n.7. In so doing, the Court clearly 

indicated that the vantage point of the official is a critical 

component of the analysis; what is an "open field" from the air 

may be a protected business curtilage if observed from inside the 

curtilage on the ground. "[T]he legality of the search is 

contingent on the police having a right [under the Fourth 

Amendment] to be where they were when they discovered the item." 

United States v. Swart, 679 F.2d 698, 701 (7th Cir. 1982). 

 In evaluating whether an area is more like an open field or 

a protected curtilage, courts examine a variety of factors to 

determine whether an expectation of privacy in the place is 

subjectively and objectively reasonable.2

 One factor is whether 

the accused "could reasonably assert control or supervision over, 

or exclude others from access to, the place." United States v. 

Nuesca, 945 F.2d 254, 259 (9th Cir. 1991); see Oliver, 466 U.S. 

 

 2The United States Supreme Court has not expressly addressed 

the existence of commercial, as opposed to residential, 

curtilage. See Dow Chem., 476 U.S. at 239 n.7. 
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at 183 ("[T]hat [an] intrusion is a trespass at common law" is 

not dispositive, for "[t]he existence of a property right is but 

one element in determining whether expectations of privacy are 

legitimate."); see also McCoy v. Commonwealth, 2 Va. App. 309, 

311-12, 343 S.E.2d 383, 385 (1986). A proprietor who "has made a 

general public invitation to enter the premises" has "a lesser 

expectation of privacy than in a commercial building that is not 

open to the public, such as a warehouse." Bute, 43 F.3d at 537 

(emphasis added). Evidence that some or all of a commercial 

building or premises is closed to the public includes the posting 

of signs and erection of barricades. See United States v. Hall, 

47 F.3d 1091, 1096 (11th Cir. 1995). Other factors include the 

proximity of the claimed curtilage to the protected premises, 

whether the claimed curtilage is inside an enclosure surrounding 

the protected premises, and the nature of the uses to which the 

claimed curtilage is put. See United States v. Dunn, 480 U.S. 

294, 301 (1987). 

 In this case, the uncontroverted evidence showed that 

Mackley discovered the untagged striped bass while standing where 

she did not have a lawful right to be and where appellant had an 

objectively and subjectively reasonable expectation of privacy. 

The evidence showed that the warehouse and adjacent dock were 

private property not open to the public and were posted with "No 

Trespassing" signs. Offloading the catch across the dock and 

through the open warehouse door on a conveyor belt was an 
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integral part of appellant's business. 

 In addition, those purchasing seafood from appellant and his 

co-lessees did so on a wholesale, not retail, basis and visited 

the premises by invitation only. As found by the trial court, 

people other than wholesalers or law enforcement officers came to 

the property by permission only, and appellant testified that he 

would ask each such visitor his purpose in visiting. In 

addition, the record contains no indication that these wholesale 

purchasers or other guests ever visited the dock area. 

"[G]overnment agents cannot attempt to justify a warrantless 

search on the claim of a reduced expectation of privacy on 

business premises when the agents do not see the items as a 

customer would ordinarily see them." Swart, 679 F.2d at 701 

(citing Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329 (1979)). 

 Finally, that appellant's co-lessees also had access to the 

premises did not lessen appellant's expectation of privacy from 

"guests" whose presence was neither invited nor consented to by 

appellant or his co-lessees. See Commonwealth v. Ealy, 12 Va. 

App. 744, 750-51, 407 S.E.2d 681, 685-86 (1991) (holding that 

accused had legitimate expectation of privacy in detached garage 

owned by his mother where "he had permission to be there, he 

possessed the combination to the lock on the door, he stored 

personal items in the garage, and he took steps to keep the 

public out of the garage when he or his [two] brothers were not 

present"). 
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 On the day at issue, appellant was using the dock 

immediately adjacent to the warehouse to offload fish from his 

boat onto a conveyor belt transporting the fish into the 

warehouse. Although the dock itself was adjacent to the 

navigable waters of the Onancock Creek, Mackley did not view the 

untagged fish from the creek. Rather, she walked onto the fish 

house property past a "NO TRESPASSING" sign and an occupied 

business office and proceeded seventy feet down the dock on the 

left side of the warehouse before seeing the fish. That others 

may have been able to see the untagged fish in the boat or inside 

the warehouse from the navigable waters of the Onancock Creek is 

irrelevant to our analysis, for the record contains no 

affirmative evidence that the fish actually were visible from 

that location3 or, more importantly, that Mackley actually viewed 

them from the creek. 

 Therefore, Mackley's presence on the premises violated 

appellant's Fourth Amendment rights unless Mackley had consent to 

be there. "[W]here the validity of a search rests on consent, 

the State has the burden of proving that the necessary consent 

was obtained and that it was freely and voluntarily 

 

 3Although the record indicates that some portion of the 

creek adjacent to the dock was navigable, it also clearly 

indicates that a portion had been condemned. Furthermore, the 

record contains no evidence regarding the volume of traffic on 

the navigable portion of the creek or whether VMRC officers ever 

traveled on the creek. In fact, Mackley testified that she came 

onto the fish house property, rather than the navigable portion 

of the creek, to check the condemned portion. 
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given . . . ." Florida v. Royer, 460 U.S. 491, 497 (1982) 

(plurality op.); see Lowe v. Commonwealth, 218 Va. 670, 678, 239 

S.E.2d 112, 117 (1977). That "burden . . . is not satisfied by 

showing a mere submission to a claim of lawful authority." 

Royer, 460 U.S. at 497. Where consent is based on implication, 

the Commonwealth bears a heavy burden of proof. See Walls v. 

Commonwealth, 2 Va. App. 639, 645, 347 S.E.2d 175, 178 (1986). 

But see Grinton v. Commonwealth, 14 Va. App. 846, 851, 419 S.E.2d 

860, 863 (1992) (holding that once initial consent to search has 

been given, scope of search may be broadened "by passive 

acquiescence"). Whether the consent was voluntary is a question 

of fact to be determined in view of the totality of the 

circumstances. See Ohio v. Robinette, 117 S. Ct. 417, 421 

(1996). Probative factors include "knowledge of the right to 

refuse consent," Schneckloth v. Bustamonte, 412 U.S. 218, 227 

(1973), the level of business sophistication, see United States 

v. O'Looney, 544 F.2d 385, 388 (9th Cir. 1976), and the display 

of authority or show of force by the officer or officers 

involved. See Reynolds v. Commonwealth, 9 Va. App. 430, 439-40, 

388 S.E.2d 659, 665 (1990). 

 "A consensual search is reasonable if the search is within 

the scope of the consent given." Grinton, 14 Va. App. at 850, 

419 S.E.2d at 862; see Lugar v. Commonwealth, 214 Va. 609, 

611-12, 202 S.E.2d 894, 897 (1974) (holding that consent to 

search apartment for fugitive limited officers to "search of 
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places . . . where a fugitive might hide"). That Mackley may 

have had permission to be on the premises and to search 

appellant's boat on a prior occasion, in August 1995, could not 

reasonably be viewed as giving her the authority to be on the 

premises on January 30, 1996. It was uncontested (1) that none 

of the co-lessees had given Mackley or any other VMRC officer 

blanket permission to come onto the property or to search the 

premises, (2) that, on January 30, 1996, Mackley neither 

announced her entry onto the property nor sought permission to 

enter, and (3) that she had already traveled past the occupied 

office and seventy feet down the dock, to the place from which 

she saw the untagged bass in the boat and in the warehouse, 

before appellant was able to catch up with her. Mackley, dressed 

in uniform and carrying a firearm, behaved as if she had a legal 

right to be on the property and never informed appellant or his 

co-lessees that they had the right to deny her access to the 

premises. The totality of the circumstances indicates that 

Mackley lacked express consent for entry on the date at issue. 

Contrary to the ruling of the trial court, we are unwilling to 

hold that appellant forfeited his Fourth Amendment rights merely 

because he failed to assert them against the VMRC officials on 

prior occasions. 

 Because Officer Mackley lacked authority under the Fourth 

Amendment to be on appellant's property on the day in question, 

all evidence seized as a result of her presence should have been 
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excluded, and the trial court erred in denying the motion to 

suppress. Accordingly, we reverse appellant's conviction and 

remand for further proceedings if the Commonwealth be so advised. 

 Reversed and remanded.