COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bray and Senior Judge Hodges 

Argued at Norfolk, Virginia 

WILLIAM ANTHONY GRANT 

 MEMORANDUM OPINION* BY 

v. Record No. 2925-96-1 JUDGE JAMES W. BENTON, JR. 

 NOVEMBER 10, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Randolph T. West, Judge 

 Lyn M. Simmons for appellant. 

 Leah A. Darron, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 William Anthony Grant appeals his conviction for possession 

of cocaine with intent to distribute and possession of a firearm 

while in possession of cocaine. He contends that the trial judge 

erred in refusing to suppress evidence and that the evidence was 

insufficient to support his convictions. We disagree and affirm 

the convictions. 

 I. 

 The evidence at trial proved that Dennis Singleton was 

employed by a private business as an armed security guard to 

patrol an apartment complex in the City of Newport News. At the 

entrance to the apartment complex, signs are posted warning "No 

trespassing" and stating that identification will be required. 

Singleton's duties included "[e]nforcing local laws, property 

 

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

designated for publication. 
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rules, . . . making any kind of arrests, responding to any calls 

of tenants having any problem with guests or other tenants." 

 In the early morning of September 2, 1995, Singleton and 

another private security guard approached a vehicle, which 

Singleton did not recognize, that was parked within the apartment 

complex. The vehicle's two occupants, whom Singleton did not 

recognize, were speaking to a woman who resided in the apartment 

complex. When Singleton asked the woman if she knew the driver, 

she said she knew him as "Eric" or "Rick" and she walked away. 

 Singleton then asked both men for identification. Grant, 

who was seated in the driver's seat, produced his operator's 

license. The address on the license indicated that he was not a 

resident of Woodsong Apartments. Singleton testified that Grant 

responded "you know me . . . give me a break." Singleton asked 

Grant to step out of the vehicle and asked Grant if he had any 

drugs or weapons in the car. 

 At this point in the testimony, Grant's trial counsel made a 

motion to suppress evidence because Singleton violated Grant's 

"constitutional right . . . to remain in his vehicle." Grant's 

trial counsel also questioned Singleton concerning his 

discoveries. The trial judge denied Grant's motion to suppress 

the evidence found on Grant's person and in the vehicle. 

 Singleton testified that when Grant exited the vehicle, 

Grant told him that drugs were in a brown paper bag behind the 

driver's seat. Singleton testified that he asked Grant for 
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permission to search his person and vehicle and that Grant gave 

him permission. Singleton found one marijuana cigarette in one 

of Grant's pockets. He arrested Grant and handcuffed him. 

Singleton then found more marijuana and several pieces of crack 

cocaine in Grant's other pocket. Grant also had a pager and $244 

in cash on Grant's person. In the vehicle, Singleton found a 

brown paper bag that contained several large pieces of crack 

cocaine and a black electronic scale. Singleton also found a 

loaded gun under the passenger seat. 

 Singleton then contacted the Newport News police. A police 

officer arrived and took Grant to a magistrate, who issued an 

arrest warrant. 

 At the conclusion of the Commonwealth's case-in-chief, Grant 

made a motion to strike the evidence, arguing that the evidence 

was insufficient to prove that he possessed the weapon found in 

the vehicle. The trial judge denied this motion. 

 In his defense, Grant testified that Singleton pushed him up 

against the truck, handcuffed him, and then searched his person 

and the vehicle without his consent. Grant also testified that 

he had been convicted of drug possession before and, therefore, 

knew he could refuse consent to a search of his person or 

vehicle. He testified that he did not consent because "I knew I 

was dirty . . . . I knew I had cocaine in my truck and on my 

person." Grant also testified that the pager belonged to the 

daughter of the woman who resided in the apartments. 
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 After presenting evidence on his own behalf, Grant renewed 

his motion to suppress. He did not, however, renew his motion to 

strike. The trial judge denied Grant's motion to suppress and 

found Grant guilty of possession of cocaine with intent to 

distribute and possession of a firearm while in possession of 

cocaine. Grant did not make a motion to set aside the verdict. 

 II. 

 Grant first argues that the evidence seized from his person 

and vehicle was seized in violation of the Fourth Amendment and, 

therefore, the trial judge should have granted his motion to 

suppress. 

 "Evidence obtained in violation of the Fourth Amendment is 

inadmissible in a criminal prosecution for a charged criminal 

violation pertaining to the seized evidence." Anderson v. 

Commonwealth, 20 Va. App. 361, 363, 457 S.E.2d 396, 397 (1995). 

However, the Fourth Amendment is implicated only in government 

action, not in searches and seizures undertaken by private 

actors. See United States v. Jacobsen, 466 U.S. 109, 113 (1984); 

Morke v. Commonwealth, 14 Va. App. 496, 503, 419 S.E.2d 410, 414 

(1992). "[A] private search, no matter how unreasonable, does 

not constitute a constitutional violation warranting the 

suppression of the evidence seized." Mills v. Commonwealth, 14 

Va. App. 459, 463, 418 S.E.2d 718, 720 (1992). "Therefore, in 

order to exclude evidence based on a Fourth Amendment violation, 

a defendant must demonstrate the contested search or seizure was 
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conducted by an officer of the government or someone acting at 

the government's direction." Duarte v. Commonwealth, 12 Va. App. 

1023, 1025, 407 S.E.2d 41, 42 (1991). Whether government action 

is implicated is a question of fact that turns on the degree of 

the government's "participation in the private party's 

activities," id. at 1026, 407 S.E.2d at 42, and must be decided 

under the circumstances of each case. Mills, 14 Va. App. at 463, 

418 S.E.2d at 720. 

 No evidence in this record tended to prove that Singleton 

was acting at the government's direction or that the government 

participated in his activities. Singleton was privately employed 

to patrol the apartment complex; he was not a police officer. He 

acted only in the interest of the apartment complex. No evidence 

proved that any law enforcement agencies knew about or exercised 

any power or control over Singleton's actions on the day in 

question. From Singleton's initial contact with Grant through 

the disputed search and seizure, Singleton was pursuing duties 

related to his private employment as a security guard. That 

conduct clearly does not implicate the protections of the Fourth 

Amendment. Accordingly, the trial judge did not err in denying 

Grant's motion to suppress. 

 III. 

 Grant next argues that the evidence was insufficient to 

support his conviction for possession of cocaine with intent to 

distribute. However, Grant actually testified that he knew about 
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the presence of the cocaine and the scale. Moreover, Grant's 

trial counsel never claimed in the trial court that the evidence 

was insufficient to show that Grant possessed the cocaine and 

scale found in the vehicle or that Grant intended to distribute 

the cocaine. Accordingly, Grant is barred from raising this 

issue for the first time on appeal. Rule 5A:18. A challenge to 

the sufficiency of the Commonwealth's evidence is waived if not 

raised with some specificity in the trial court. Mounce v. 

Commonwealth, 4 App. 433, 435, 357 S.E.2d 742, 744 (1987). A 

reason not asserted at trial as to why the evidence is 

insufficient is not considered on appeal. See Floyd v. 

Commonwealth, 219 Va. 575, 584, 249 S.E.2d 171, 176 (1978). 

Moreover, the record does not reflect any reason to invoke the 

good cause or ends of justice exceptions to Rule 5A:18. 

 IV. 

 Grant also challenges the sufficiency of the evidence to 

convict him for possession of a firearm while in possession of 

cocaine. At the end of the Commonwealth's case-in-chief, Grant 

moved to strike the Commonwealth's evidence based on the 

sufficiency of the evidence to show that Grant possessed the 

handgun found in the vehicle. Grant then presented evidence but 

did not make another motion to strike the evidence or make a 

motion to set aside the verdict. 

 When Grant elected to present evidence on his behalf, he 

waived his right to stand on his motion to strike the evidence 
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made at the close of the Commonwealth's case-in-chief. "[I]n a 

bench trial, where a defendant wishes to preserve a sufficiency 

motion after presenting evidence, the defendant must make a 

motion to strike at the conclusion of all the evidence, present 

an appropriate argument in summation, or make a motion to set 

aside the verdict." Howard v. Commonwealth, 21 Va. App. 473, 

478, 465 S.E.2d 142, 144 (1995). Because Grant failed to renew 

his motion to strike or move to set aside the verdict, the issue 

is not preserved for appeal. 

 Accordingly, we affirm the convictions. 

 Affirmed.