COURT OF APPEALS OF VIRGINIA 

Present: Judges Haley, Alston and Senior Judge Clements 

Argued by teleconference 

JOHN BRIAN REDMOND 

 OPINION BY 

v. Record No. 2443-09-4 JUDGE ROSSIE D. ALSTON, JR. 

NOVEMBER 16, 2010 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY 

Dennis L. Hupp, Judge 

 Roger A. Inger (Inger & Collins, P.C., on brief), for appellant. 

 Eugene Murphy, Senior Assistant Attorney General (Kenneth T. 

Cuccinelli, II, Attorney General, on brief), for appellee. 

 John Brian Redmond (appellant) appeals his conviction of violating Code § 18.2-308.2 

by possessing a firearm after having been convicted of a felony. Appellant contends the trial 

court erred in denying his motion to suppress the evidence. Appellant also argues the evidence 

was insufficient to sustain his conviction. Finding no error, we affirm appellant’s conviction. 

I. BACKGROUND

 Applying well-established principles of review on appeal, we state the evidence in the 

light most favorable to the party prevailing below, the Commonwealth in this instance. Haskins 

v. Commonwealth, 31 Va. App. 145, 148, 521 S.E.2d 777, 778 (1999). 

 The evidence showed that Eric Flagg, a special agent with the Bureau of Alcohol, 

Tobacco and Firearms, received information that appellant, who had a prior felony conviction, 

possessed firearms at his residence on Middle Road in Shenandoah County. Flagg also learned 

that the property had been listed for sale through a real estate company. In response, Flagg 

contacted the real estate agent for the property and said he was interested in looking at the house. 
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 On August 3, 2008, Flagg and Investigator Laura Clutz met the realtor at the Middle 

Road residence. The realtor showed Flagg and Clutz the home, which had three levels of living 

space. In a den located in the basement was a wooden gun cabinet with glass panels. Several 

long guns were visible in the case. Flagg also saw several rounds of ammunition in the case. 

The realtor did not ask if Flagg and Clutz were police officers, and the officers did not volunteer 

this information. 

 Subsequently, the police filed an affidavit to obtain a warrant to search the Middle Road 

residence for illegal firearms, ammunition, and related evidence. The search warrant affidavit 

stated that Flagg had visited the residence with a realtor on August 3, 2008. The affidavit further 

stated, 

During the walk through with the realtor, SA Flagg observed a 

pawn ticket on the refrigerator door. The pawn ticket was recent 

and showed that Tonya [sic] Henry had pawned three firearms at 

Bear’s Trading Post, a pawn broker in Winchester, Virginia. 

Additionally, while walking through the den located on the first 

floor, SA Flagg observed a glass and oak gun cabinet, which 

contained several firearms [including] modern rifles and black 

powder rifles. SA Flagg also observed a box of rifle ammunition. 

 A magistrate issued a search warrant for the entirety of the Middle Road residence on 

August 11, 2008, and police officers executed the warrant that same day. When the officers 

arrived, appellant was not present, but Tanya Henry and two young children were there.F

1

F The 

police advised Henry about the search warrant. Henry started making telephone calls in an 

attempt to locate appellant. 

 In the search, the police recovered several long guns from the unlocked gun cabinet in the 

basement den. During the search, police also observed on the walls of the residence’s den 

photographs of appellant posing with deer that had been killed. In addition, miscellaneous items 

 1

 Henry married appellant on February 26, 2009, and changed her name to Tanya 

Redmond. However, for purposes of consistency, we refer to her in this opinion as “Henry.” 
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related to guns and hunting were present in the den. The police also found a pistol in a shed 

adjacent to the residence. Two boxes of ammunition, a gun magazine, and some loose bullets 

were found in a kitchen cabinet. In the foyer, the police found a box of ammunition on top of a 

periodical published in January 2007. The periodical was addressed to appellant at the Middle 

Road residence. Men’s clothing, boots, hunting equipment, and a firearm were found in the 

closet of the master bedroom in the house. 

 At trial, Henry testified that the property at Middle Road was titled in her name alone. 

She had moved into the residence in 2004, when appellant was renting the home. According to 

Henry, appellant subsequently bought the home and then sold it to her. She said appellant had 

moved out of the residence in June 2008 because she and appellant had been arguing. However, 

appellant would return to the house periodically to see the children and get clothes. Henry 

testified that after appellant left in June 2008, her nineteen-year-old son moved in to help her 

around the house. Henry said the guns the police found during the search belonged to her son 

and that the firearms were not present in the house when appellant was living there. Henry did 

acknowledge, however, that the male clothing in the master bedroom closet belonged to 

appellant. 

 The Commonwealth introduced documents proving that appellant deeded the property to 

himself and Henry as joint tenants in 2006. When the house was listed for sale in 2008, 

“Redmond” was indicated as the name of the owner of the property. At the time a bank 

foreclosed upon the property in March 2009, the listed owners were Henry and appellant. 
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II. USUPPRESSION

 Appellant argues the police unlawfully entered the home and made the observations that 

provided the predicate for the items that were referenced in the search warrant affidavit.F

2

F Thus, 

he argues, the warrant was invalid and the trial court erred in refusing to suppress the evidence 

seized during the search. Essentially, appellant claims that the original entry into the residence 

by the police under the guise of being a potential buyer of the real estate was an illegal 

subterfuge, thus invalidating the basis for the search warrant. Where the defendant challenges 

the seizure of evidence by the police pursuant to a search warrant, he bears the burden of proving 

 2

 Appellant also contends that, even if the police officers lawfully entered the property 

pursuant to consent, they exceeded the boundary of that consent by closely examining the pawn 

ticket that was on the refrigerator. Appellant did not make this argument in the trial court. “The 

Court of Appeals will not consider an argument on appeal which was not presented to the trial 

court.” UOhree v. CommonwealthU, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998) (citing 

UDeal v. CommonwealthU, 15 Va. App. 157, 161, 421 S.E.2d 897, 900 (1992); UJacques v. 

CommonwealthU, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (noting that Rule 5A:18 bars 

even constitutional claims)); UseeU Rule 5A:18. Accordingly, Rule 5A:18 bars our consideration of 

this question on appeal. 

Although Rule 5A:18 allows exceptions for good cause or 

to meet the ends of justice, appellant does not argue that we should 

invoke these exceptions. USeeU[,] Ue.g.U, URedman v. CommonwealthU, 

25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (“In order to 

avail oneself of the exception, a defendant must affirmatively show

that a miscarriage of justice has occurred, not that a miscarriage 

might have occurred.” (emphasis added)). We will not consider, 

sua sponte, a “miscarriage of justice” argument under Rule 5A:18. 

UEdwards v. CommonwealthU, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc). As of 

July 1, 2010, Rule 5A:18 was revised to state that “[n]o ruling of the trial court . . . will be 

considered as a basis for reversal unless an objection was stated with reasonable certainty at the 

time of the ruling . . . .” Because the proceedings below were completed prior to this revision 

taking effect, we will rely on the language of Rule 5A:18 that was then in effect. USeeU UFails v. Va. 

State BarU, 265 Va. 3, 5 n.1, 574 S.E.2d 530, 531 n.1 (2003) (applying the Rule of Court in effect 

at the time of the proceedings below). 
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the search warrant invalid.F

3

F USeeU ULebedun v. CommonwealthU, 27 Va. App. 697, 710-11, 501 

S.E.2d 427, 433-34 (1998) (citations omitted). 

 The Fourth Amendment 

“protects people, not places.” UKatz v. United StatesU, 389 U.S. 347, 

351 (1967). In order to effectuate the fourth amendment 

guarantees, the Supreme Court established the “exclusionary rule” 

which prevents evidence obtained in violation of the fourth 

amendment from being used against an accused. UReynolds v. 

CommonwealthU, 9 Va. App. 430, 435, 388 S.E.2d 659, 662-63 

(1990); Usee alsoU UWalls v. CommonwealthU, 2 Va. App. 639, 651, 

347 S.E.2d 175, 182 (1986). Yet, the protections of the 

exclusionary rule are only available to individuals whose fourth 

amendment rights have been violated. URakas U[Uv. IllinoisU], 439 U.S. 

[128,] 134 [(1978)]; UaccordU UUnited States v. SalvucciU, 448 U.S. 83, 

85 (1980); UMcCoy v. CommonwealthU, 2 Va. App. 309, 311, 343 

S.E.2d 383, 385 (1986). Thus, before affording the exclusionary 

rule protections to a defendant, a 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.” UMcCoyU, 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. 

URawlings v. KentuckyU, 448 U.S. 98, 104 (1980). 

 3

 Similarly, appellant bears the burden of establishing standing to challenge the search of 

the Middle Road residence. UJones v. United StatesU, 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 the allegation is disputed, establish that he himself was the victim of an invasion of privacy); 

UShearer v. CommonwealthU, 9 Va. App. 394, 404, 388 S.E.2d 828, 833 (1990). A defendant’s 

“‘Fourth Amendment rights are violated only when the challenged conduct invaded his 

legitimate expectation of privacy rather than that of a third party.’” UParks v. CommonwealthU, 

221 Va. 492, 497, 270 S.E.2d 755, 758 (1980). To the extent that appellant argues that he was 

not the owner of the Middle Road residence, nor did he reside there, keep property there, or have 

permission to exclude others from the premises, these arguments are inconsistent with 

appellant’s standing to challenge the search of the Middle Road residence. UBarnes v. 

CommonwealthU, 234 Va. 130, 135, 360 S.E.2d 196, 200 (1987). However, because the 

Commonwealth did not raise the issue of appellant’s standing to challenge the search of the 

Middle Road residence at trial or on appeal, we decline to consider the issue here. UAppalachian 

Voices v. State Corp. Comm’nU, 277 Va. 509, 515, 675 S.E.2d 458, 460 (2009) (stating that the 

Court “will not entertain a standing challenge made for the first time on appeal”). 
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UCommonwealth v. EalyU, 12 Va. App. 744, 750-51, 407 S.E.2d 681, 685 (1991). “What a person 

knowingly exposes to the public, even in his own home . . . , is not a subject of Fourth 

Amendment protection.” UKatzU, 389 U.S. at 351 (citations omitted). 

 In ULewis v. United StatesU, 385 U.S. 206 (1966), the United States Supreme Court 

considered whether the exclusionary rule prohibited the use of evidence obtained by a federal 

narcotics agent who gained entry to a defendant’s home through subterfuge. In ULewisU, a federal 

narcotics agent disguised his identity and was invited into the defendant’s home, where the 

officer purchased drugs from the defendant. UId.U at 206. The Court found that 

when, as here, the home is converted into a commercial center to 

which outsiders are invited for purposes of transacting unlawful 

business, that business is entitled to no greater sanctity than if it 

were carried on in a store, a garage, a car, or on the street. A 

government agent, in the same manner as a private person, may 

accept an invitation to do business and may enter upon the 

premises for the very purposes contemplated by the occupant. 

UId.U at 211. The Court noted that the officer, while in the defendant’s home, did not “see, hear, or 

take anything that was not contemplated, and in fact intended, by [the defendant] as a necessary 

part of his illegal business.” UId.U at 210. 

 We find no Virginia appellate decisions where a police officer, posing as a potential 

buyer of real property, entered a defendant’s home that was listed for sale and thereby either 

viewed or obtained evidence against him. However, we find cases from other jurisdictions 

instructive. 

 In UPeople v. LucateroU, 83 Cal. Rptr. 3d 364, 366 (Cal. Ct. App. 2008), a police officer 

contacted a real estate agent and feigned interest in a house listed for sale. The officer, 

accompanied by the real estate agent, then toured the home. UId.U During the viewing, the officer 

confirmed information a source previously had provided to him. UId.U The officer included those 

confirmed facts in an affidavit and obtained a search warrant for the property. UId.U The 
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California Court of Appeal found the officer’s entry to the home and the later search lawful, 

concluding that 

an investigating officer may pose as a potential buyer and enter a 

home under this misrepresentation, assuming the officer’s actions 

do not exceed the scope of the consent. The officer must act as a 

potential buyer and do nothing that would violate the homeowner’s 

legitimately held privacy expectations, as defined in the context of 

the homeowner’s general invitation to members of the public to 

view the interior of the home for purposes of marketing the home. 

UId.U at 370. 

 Similarly, in UState v. FerrariU, 731 A.2d 1225, 1226 (N.J. Super. Ct. App. Div. 1999), 

neighbors alerted police officers to suspicious happenings at the condominium unit the defendant 

rented. Noting the condominium unit was listed for sale, police officers contacted the listing 

agent and indicated interest in purchasing the property. UId.U When the officers toured the 

property with the agent, they observed marijuana in plain view. UId.U This information was 

included in the affidavit for the search warrant the police subsequently obtained. UId.U The court 

found the defendant had sustained no violation of his Fourth Amendment rights, noting that 

“[t]he actions of [the officers] . . . did not exceed what one would expect of a prospective 

purchaser. . . . Their actions violated no reasonable expectation of privacy possessed by 

defendant.” UId.U at 1228; Usee alsoU UState v. PolandU, 645 P.2d 784, 792 (Ariz. 1982) (observing that 

it is lawful for government agents to conceal their identities and “pose as potential buyers [of real 

estate] to investigate illegal firearms”). 

 We find the analysis of the ULucateroU and UFerrariU decisions compelling. In this instance, 

Flagg accepted the offer to enter and view the home at Middle Road when he contacted the real 

estate agent and indicated interest in the property. There was no evidence Flagg or Clutz made 

any representation to the realtor regarding their reason for wanting to tour the house. Moreover, 

the police officers’ actions while inside the property did not exceed what one would expect of a 
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prospective purchaser. Flagg and Clutz did not conduct an exhaustive search of the home when 

they visited it with the realtor. The firearms, ammunition, and pawn ticket all were in the 

officers’ plain view and were readily observable on August 3, 2008. Thus, the officers’ actions 

violated no reasonable expectation of privacy possessed by appellant. 

 Finding that the officers did not violate any reasonable expectation of privacy of 

appellant by entering the home as prospective buyers, we conclude the trial court did not err in 

denying appellant’s motion to suppress the evidence. 

0BIII. USUFFICIENCY

 Appellant was charged with possessing a firearm unlawfully on or about August 11, 

2008, the date the police searched the Middle Road residence. Appellant contends the evidence 

was insufficient to support his conviction of the offense. 

 Under well-settled principles of appellate review, we 

consider the evidence presented at trial in the light most favorable 

to the Commonwealth, the prevailing party below. UBaldwin v. 

CommonwealthU, 274 Va. 276, 278, 645 S.E.2d 433, 433 (2007); 

URobinson v. CommonwealthU, 273 Va. 26, 30, 639 S.E.2d 217, 219 

(2007). “We also accord the Commonwealth the benefit of all 

inferences fairly deducible from the evidence.” URiner v. 

CommonwealthU, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004). 

When reviewing the sufficiency of the evidence to support a 

conviction, the Court will affirm the judgment unless the judgment 

is plainly wrong or without evidence to support it. UColes [v. 

Commonwealth]U, 270 Va. [585,] 587, 621 S.E.2d [109,] 110 

[(2005)]; UBurns v. CommonwealthU, 261 Va. 307, 337, 541 S.E.2d 

872, 892 (2001). 

UBolden v. CommonwealthU, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008). 

 Code § 18.2-308.2 provides that “[i]t shall be unlawful for . . . any person who has been 

convicted of a felony . . . to knowingly and intentionally possess . . . any firearm.” 

“A conviction for the unlawful possession of a firearm can be 

supported exclusively by evidence of constructive possession; 

evidence of actual possession is not necessary. To establish 

constructive possession of the firearm by a defendant, the 

Commonwealth must present evidence of acts, statements, or 
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conduct by the defendant or other facts and circumstances proving 

that the defendant was aware of the presence and character of the 

firearm and that the firearm was subject to his dominion and 

control.” 

USmallwood v. CommonwealthU, 278 Va. 625, 630, 688 S.E.2d 154, 156 (2009) (quoting UBoldenU, 

275 Va. at 148, 654 S.E.2d at 586). Moreover, 

[o]wnership or occupancy . . . of premises where [contraband is] 

. . . found is a circumstance that may be considered together with 

other evidence tending to prove that the owner or occupant 

exercised dominion and control over items . . . on the premises in 

order to prove that the owner or occupant constructively possessed 

the contraband . . . . 

UBurchette v. CommonwealthU, 15 Va. App. 432, 435, 425 S.E.2d 81, 83 (1992) (citing Code 

§ 18.2-250; UBehrens v. CommonwealthU, 3 Va. App. 131, 135, 348 S.E.2d 430, 432 (1986)). To 

support an inference that the owner or occupant of property also possesses contraband located on 

the premises, “the owner or occupant must be shown to have exercised dominion and control 

over the premises and to have known of the presence, nature and character of the contraband at 

the time of such ownership or occupancy.” UId.U at 435, 425 S.E.2d at 84 (citation omitted). 

 There was credible evidence to show that appellant was the owner of the Middle Road 

residence at the time the search warrant was executed. Although Henry testified that she was the 

sole owner of the Middle Road residence in August 2008, this testimony was discredited by the 

Commonwealth’s evidence. “The credibility of the witnesses and the weight accorded the 

evidence are matters solely for the fact finder who has the opportunity to see and hear that 

evidence as it is presented.” USandoval v. CommonwealthU, 20 Va. App. 133, 138, 455 S.E.2d 

730, 732 (1995) (citations omitted). The Commonwealth’s evidence was sufficient to prove that 

appellant owned the property at Middle Road jointly with Henry on the date of the search. 

Appellant’s name, not Henry’s, was provided when the property was listed for sale in 2008. In 

addition, Henry made attempts to alert appellant when the police arrived to execute the search 
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warrant. As the owner of the Middle Road residence, appellant exercised dominion and control 

over the premises where the guns were found. 

 The evidence was also sufficient to show that appellant knew of the presence, nature, and 

character of the guns found on the premises. Henry claimed that appellant moved from the 

residence in June 2008, the guns the police found belonged to her son, and the guns were not in 

the home while appellant was living there. In making its credibility determination, the trial court 

was free to reject Henry’s testimony. Moreover, Henry testified that, even after June 2008, 

appellant returned to the Middle Road residence periodically to see the children and to obtain 

clothing. The police found a firearm placed on top of appellant’s clothing in the master bedroom 

closet. Furthermore, the firearms in the unlocked glass and oak gun cabinet and the ammunition 

in the foyer were readily observable to anyone in the home. Just as Flagg and Clutz could 

observe the firearms in plain sight during their walk-through of the house, so could appellant. 

Because several firearms were in plain view, the evidence was sufficient to show that appellant 

knew of their presence, nature, and character. Regardless of Henry’s claim that appellant had 

moved out prior to the search, appellant clearly had access to the firearms, which were openly 

present in the home he owned. 

 Considering all the facts and circumstances, the evidence was sufficient for the fact finder 

to conclude, beyond a reasonable doubt, that in August 2008 appellant constructively possessed 

the firearms. Accordingly, the evidence was sufficient to support appellant’s conviction, and we 

do not disturb it on appeal. 

IV. UCONCLUSION

 For the foregoing reasons, we affirm appellant’s conviction. 

 UAffirmed.