COURT OF APPEALS OF VIRGINIA 

Present: Judges Koontz, Willis and Senior Judge Hodges 

Argued at Salem, Virginia 

JOHNNY WAYNE WARREN 

v. Record No. 0154-94-3 MEMORANDUM OPINION* BY 

 JUDGE LAWRENCE L. KOONTZ, JR. 

COMMONWEALTH OF VIRGINIA MAY 2, 1995 

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE 

James F. Ingram, Judge 

 Joe Garrett (Garrett & Garrett, P.C, on brief), for 

appellant. 

 Eugene Murphy, Assistant Attorney General (James S. Gilmore, 

III, Attorney General; Leah A. Darron, Assistant Attorney 

General, on brief), for appellee. 

 Johnny Wayne Warren (Warren) appeals his bench trial 

conviction for possession of cocaine. Warren asserts that the 

trial court erred in ruling that he lacked standing to challenge 

the seizure of evidence during the execution of an invalid search 

warrant at a home where he was a temporary guest. Warren further 

asserts that the invalidity of the warrant resulted in an illegal 

seizure of his person, requiring suppression of the evidence. 

Warren also challenges the sufficiency of the evidence to support 

his conviction. For the following reasons, we affirm Warren's 

conviction. 

 We restate only those facts necessary to explain our 

holding. Danville police, acting on information from a reliable 

informant, sought and obtained a warrant to search for narcotics 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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in an apartment rented by George Scales. The supporting 

affidavit, however, was ambiguous as to whether the warrant 

sought was specific to Scales or the apartment generally. 

 During the execution of that warrant, officers observed 

Warren, a guest at an on-going party in the apartment, toss away 

a folded twenty dollar bill which he had held in his hand when 

they entered the apartment. An officer recovered the bill and 

discovered on the bill a white, powdery residue which analysis 

showed to be cocaine. 

 Immediately prior to trial, Warren moved to suppress the 

evidence on the ground that the search warrant was invalid. 

While agreeing that the search warrant was invalid, the trial 

court permitted the Commonwealth to proceed with its case on the 

ground that Warren lacked standing to object to the validity of 

the warrant. 

 Warren asserts that he had a reasonable expectation to 

privacy in his person and possessions at the time of the 

execution of the warrant and that this expectation was violated 

by the illegal entry and search effected by the invalid warrant. 

 We disagree. 

 The Commonwealth does not challenge the trial court's 

determination that the warrant was invalid. Thus, we will 

assume, without deciding, that this ruling of the trial court was 

correct. Nonetheless, in order for a defendant to object on 

fourth amendment grounds to a search and seizure, he or she has 
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the burden of showing that his or her own fourth amendment rights 

were violated. Williams v. Commonwealth, 4 Va. App. 53, 70, 354 

S.E.2d 79, 88 (1987); McCoy v. Commonwealth, 2 Va. App. 309, 311, 

343 S.E.2d 383, 384 (1986). 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). See generally Katz 

v. United States, 389 U.S. 347, 353 (1967). 

 Thus, before affording exclusionary rule protection to a 

defendant, a trial court must determine whether, based on the 

totality of the circumstances, the defendant "objectively had a 

reasonable expectation of privacy at the time and place of the 

disputed search." McCoy, 2 Va. App. at 311, 343 S.E.2d at 385. 

The party asserting fourth amendment rights has the burden of 

proving the government conducted an illegal search of a place 

where that party had a legitimate expectation of privacy. 

Rawlings v. Kentucky, 448 U.S. 98, 104 (1980). Some of the 

factors 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. McCoy, 2 

Va. App. at 312, 343 S.E.2d at 385; see also Barnes v. 

Commonwealth, 234 Va. 130, 135, 360 S.E.2d 196, 200 (1987) 

(defendant failed to meet his burden where he showed he had 
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permission to be present in the place searched but did not have a 

key, did not keep property there, and could not exclude others), 

cert. denied, 484 U.S. 1036 (1988). 

 Here, the evidence shows that Warren was merely a transient 

guest in the apartment. Although he frequently visited the 

apartment, there was no evidence that he ever stayed overnight or 

had access to the apartment other than by permission of the 

lessee while he was also present. Accordingly, the trial court 

did not err in ruling that Warren lacked standing to challenge 

the validity of the search. 

 Warren further asserts that, because the police were 

operating under an invalid search warrant, his detention within 

the apartment was an illegal seizure and that the evidence 

obtained during that seizure should have been suppressed.1 We 

will assume, without deciding, that the presence of multiple 

police officers, some of whom blocked the principal paths of 

egress from the apartment, and their display of weapons and 

badges was sufficient to constitute a seizure of all the persons 

inside the apartment. 

 On appeal, the burden is on the defendant to show that the 

court's denial of a suppression motion based upon the illegal 

 

 1The Commonwealth asserts that Warren raises this issue for 

the first time on appeal and that it is therefore barred from our 

consideration. Rule 5A:18. At trial, Warren asserted that he 

had a reasonable expectation of privacy in his person. Although 

it is unclear that this assertion was an attempt to challenge the 

seizure of his person, we elect to consider the issue on its 

merits. 
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seizure of one's person, when considered in the light most 

favorable to the Commonwealth, constituted reversible error. See

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

cert. denied, 449 U.S. 1017 (1980). The fourth amendment does 

not prohibit all seizures, only unreasonable ones. See Phillips 

v. Commonwealth, 17 Va. App. 27, 30, 434 S.E.2d 918, 920 (1993). 

 Officers executing a search warrant for contraband may detain 

the occupants of the premises to be searched while the search is 

in progress. Michigan v. Summers, 452 U.S. 692, 705 (1981). 

Although this act constitutes a seizure, it is reasonable because 

its intrusiveness is limited and the exigencies of the 

circumstances require it both to protect police and secure the 

safe recovery of the evidence sought. Id.; see also Williams, 4 

Va. App. at 67, 354 S.E.2d at 87. 

 Although we have assumed here that the trial court correctly 

found that the warrant was not valid because of an error in the 

supporting affidavit, nothing in the record suggests that the 

officers were not acting under a good faith belief in the 

validity of the warrant at the time it was executed. See United 

States v. Leon, 468 U.S. 897, 918-21 (1984); Lanier v. 

Commonwealth, 10 Va. App. 541, 547, 394 S.E.2d 495, 499 (1990). 

Accordingly, the officers had the right to detain Warren and the 

other guests during the execution of the warrant. 

 Furthermore, the police would have been permitted to conduct 

a protective search of Warren under the circumstances. See
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Williams, 4 Va. App. at 66-67, 354 S.E.2d at 87. However, as 

Warren discarded the bill before the officers had attempted such 

a search, we are concerned only with the validity of the de facto

seizure caused by securing the residence. We hold that the 

seizure was proper under Summers and, thus, did not require 

suppression of the evidence discovered in the course of that 

seizure. 

 Finally, Warren asserts that the evidence was insufficient 

to prove that he exercised dominion and control over the bill and 

residue or that he was aware of the character and nature of the 

residue. We disagree. "On appeal, we review the evidence in the 

light most favorable to the Commonwealth, granting to it all 

reasonable inferences fairly deducible therefrom. The judgment 

of a trial court sitting without a jury is entitled to the same 

weight as a jury verdict and will not be set aside unless it 

appears from the evidence that the judgment is plainly wrong or 

without evidence to support it." Martin v. Commonwealth, 4 Va. 

App. 438, 443, 358 S.E.2d 415, 418 (1987) (citing 

Code § 8.01-680). Here, the evidence showed that Warren 

voluntarily disposed of a valuable possession when confronted by 

police. Although he denied knowledge and ownership of the bill, 

the testimony of the officers established that the bill 

discovered on the floor was the object Warren was seen discarding 

moments before. Warren also inquired of one of the arresting 

officers more than once concerning the penalty he might receive 
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for possession of cocaine. From these facts, the trial judge 

could reasonably infer that Warren was aware of the presence and 

character of the cocaine residue and harbored a guilty conscience 

as to his possession of it. 

 For these reasons, the judgment of the trial court is 

affirmed. 

 Affirmed.