COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Humphreys and Senior Judge Overton 

Argued at Chesapeake, Virginia 

KEVIN MICHEL CRISS 

 MEMORANDUM OPINION* BY 

v. Record No. 0364-00-1 JUDGE ROBERT J. HUMPHREYS 

 JUNE 5, 2001 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

Dean W. Sword, Jr., Judge 

 James O. Broccoletti (James P. Normile, IV; 

Zoby & Broccoletti, P.C., on brief), for 

appellant. 

 Donald E. Jeffrey, III, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Kevin Criss appeals his conviction, after a bench trial, 

for possession with intent to distribute more than five pounds 

of marijuana and conspiracy to distribute more than five pounds 

of marijuana. Criss contends that the trial court erred 1) in 

admitting his statement, which he alleges was made as a result 

of coercion by the arresting officer; and, 2) in admitting 

evidence found in the box addressed to 23 Neville Street, which 

he alleges was illegally searched without a warrant. Because 

this opinion has no precedential value and because the parties are 

conversant with the facts, we do not recite them in detail here. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
 We first note that "[t]he admission of evidence is within 

the broad discretion of the trial court." Pavlick v. 

Commonwealth, 27 Va. App. 219, 226, 497 S.E.2d 920, 923 (1998).1 

"[The Supreme Court has] held that a confession may be 

involuntary and hence inadmissible when induced by threats to 

prosecute members of the confessor's family." Tipton v. 

Commonwealth, 224 Va. 256, 262, 295 S.E.2d 880, 883 (1982) 

(citation omitted). However, we have not held, as Criss seems 

to suggest, that "threats" to prosecute members of the 

confessor's family are per se unreasonable. Instead, "the 

question in each case is whether the defendant's will was 

overborne at the time he confessed. If so, the confession 

cannot be deemed 'the product of a rational intellect and a free 

will.'" Lynumn v. Illinois, 372 U.S. 528, 534 (1963) (citations 

omitted). Thus, 

[i]n assessing the voluntariness of a 

confession on appeal, we must independently 

determine whether, in light of the totality 

of the circumstances, including not only the 

details of the interrogation, but also the 

characteristics of the accused, the 

statement was the product of an essentially 

free and unconstrained choice by its maker, 

or whether the maker's will was overcome and 

his capacity for self-determination 

critically impaired. 

 1

 Although Criss frames the issues on appeal as pertaining 

to "motions to suppress" evidence, Criss made no pretrial motion 

to suppress the evidence in this case. Rather, he objected to 

the admissibility of certain evidence on state law, as well as 

constitutional grounds. 

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Novak v. Commonwealth, 20 Va. App. 373, 386-87, 457 S.E.2d 402, 

408 (1995) (citations omitted). 

 Here, Criss argues he inferred coercion from Detective 

Franklin Chappell's statements. However, unlike the 

circumstances in Hammer v. Commonwealth, 207 Va. 135, 147-48, 

148 S.E.2d 878, 885 (1966), Detective Chappell testified at 

trial to the statements he made to Criss. The trial court had 

the opportunity to evaluate Detective Chappell's credibility 

with respect to the statements he made to Criss and their 

context. Moreover, since Criss elected to contest their 

admissibility at trial rather than seek a pretrial suppression 

hearing, the trial court was given no opportunity to evaluate 

the coercive effect, if any, these statements had on Criss. We 

therefore cannot find that the trial court erred in concluding 

that Criss' statement was the product of an essentially free and 

unconstrained choice and that his will was not overborne by the 

detective's statements. Accordingly, we find no error in the 

trial court's admission of Criss' statement. 

 We note finally that the only Fourth Amendment argument 

that Criss raised before the trial court pertained to the 

investigation and resulting search that occurred in California. 

However, the trial court issued a more exhaustive ruling in 

denying Criss' motion and addressed both the California search 

and the Virginia search. As a basis for its ruling with regard 

to the Virginia search, the trial court concluded that Criss had 

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no expectation of privacy in the box prior to its delivery to 

his home. 

 Likewise, we find no merit in Criss' argument that the 

search of the box prior to delivery to his home was illegal. On 

this record, there is no evidence that "Dennis Barnard," the 

individual to whom the package was addressed, was an alter ego 

or pseudonym for Criss, nor that Criss ever identified himself 

as Barnard.2 Instead, the evidence merely demonstrates that 

Criss accepted delivery and possession of the box and its 

contents. Thus, we find no evidence to suggest that prior to 

delivery, Criss possessed any expectation of privacy in the box 

and/or its contents. In light of this, Criss had no standing to 

assert an alleged Fourth Amendment violation based on the 

actions of police prior to delivery of the box to his home. See

Rakas v. Illinois, 439 U.S. 128, 143 (1978) ("[The] capacity to 

claim the protection of the Fourth Amendment depends not upon a 

property right in the invaded [thing] but upon whether the 

person who claims the protection of the Amendment has a 

legitimate expectation of privacy in the invaded [thing]."). 

 Criss correctly notes that the trial court erroneously 

based its conclusion that Criss had no expectation of privacy in 

the box on its belief that Criss lost his privacy interest once 

 2

 To the contrary, counsel for Criss objected when the 

prosecutor referred to Criss as having identified himself as 

Barnard. 

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UPS became the "lawful custodian" of the box. See United States 

v. Jacobsen, 466 U.S. 109, 114 (1984) (the principle is well 

established that individuals retain an expectation of privacy in 

letters and sealed packages that have been deposited in the 

mail). However, as set forth above, we find that the trial 

court reached the correct result in finding that Criss had no 

expectation of privacy in the box prior to delivery. 

Accordingly, the judgment of the trial court is affirmed. See

Harris v. Commonwealth, 33 Va. App. 325, 332, 533 S.E.2d 18, 21 

(2000) (as long as the correct reason, along with a factual 

basis to support it, is raised in the trial court, an appellate 

court may affirm the judgment of a trial court when it has 

reached the right result for the wrong reason). 

Affirmed. 

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