COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Annunziata 

Argued at Richmond, Virginia 

COMMONWEALTH OF VIRGINIA 

v. Record No. 0704-95-2 MEMORANDUM OPINION* BY 

 JUDGE ROSEMARIE P. ANNUNZIATA 

GARY LEE CHRISTIAN SEPTEMBER 19, 1995 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

Paul M. Peatross, Jr., Judge 

 Michael T. Judge, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellant. 

 (Sheila C. Haughey; J. Lloyd Snook, III; 

Snook & Haughey, P.C., on brief), for 

appellee. 

 The appellee, Gary Lee Christian, was indicted in the 

Circuit Court for the County of Albemarle for breaking and 

entering and grand larceny. The appellee filed a motion to 

suppress evidence obtained from the October 29, 1994 search of a 

vehicle in which he was a passenger. After argument, the trial 

court granted the appellee's motion, finding that the search 

violated his Fourth Amendment rights. 

 The Commonwealth appeals the suppression, alleging the 

following: (1) that the trial court erred in granting the motion 

to suppress because the appellee failed to establish standing; 

(2) that the trial court erred in concluding that the search of 

the answering machine was not a valid search incident to arrest; 

 

 *Pursuant to Code § 17.116.010 this opinion is not 

designated for publication. 
 2 

and (3) that the trial court erred in finding that the evidence 

failed to establish the probable cause necessary under the "plain 

view" exception to the warrant requirement. For the reasons 

stated below, we reverse and remand this case. 

 On October 29, 1994, Officer Mike Wagner, of the Albemarle 

County Police Department, patrolled an area north of 

Charlottesville. Just after midnight, a green Ford pickup drew 

Officer Wagner's attention. While stopped at a red traffic 

light, the truck spun its wheels heavily for approximately ten to 

fifteen seconds causing a large dust bowl of smoke. Officer 

Wagner observed the truck proceed through the green light and 

enter an Amoco station just past the light. Officer Wagner 

identified the appellee, Gary Lee Christian, as the driver of the 

truck. Officer Wagner approached Christian with his badge 

displayed as Christian fueled the truck. Officer Wagner asked 

Christian if there was a problem with the truck. By this time, 

Christian had returned to the driver's seat. 

 Upon inquiring about the truck, Officer Wagner observed both 

a strong odor of alcohol on Christian and a whiskey container on 

the front seat of the truck. Christian admitted to drinking and 

proceeded to exit the truck to perform field sobriety tests. 

After Christian failed Officer Wagner's field sobriety tests, 

Officer Wagner arrested him for driving under the influence. 

Officer Wagner then handcuffed Christian and searched his person 

incident to the arrest. As a result of the search, Officer 
 3 

Wagner found a ziplock bag of marijuana in Christian's front 

pocket. Officer Wagner placed Christian in his patrol car and 

sought identification of Christian and registration of the truck. 

 Christian provided a false name to Officer Wagner and failed to 

produce a vehicle registration or proof of ownership. 

 Meanwhile Officer Barbour arrived on the scene and arrested 

the truck's only passenger, David Winthrop Paschall, after 

finding a concealed weapon on the truck's front seat. 

 While both subjects were handcuffed, Officer Wagner searched 

both the bed of the truck and a toolbox contained there. Officer 

Wagner observed some unboxed office products scattered loosely in 

the bed of the truck and, upon opening the toolbox, found more 

office products. In response to Officer Wagner's inquiry about 

the office products, Christian stated that his brother in 

Richmond had given him all of the products except a computer that 

he had purchased from an unnamed person for fifty dollars. The 

alleged purchase price of the computer caused Officer Wagner some 

concern. Based on this concern and Christian's statement that 

the equipment came from his brother, Officer Wagner removed an 

answering machine from the truck bed and took it into the Amoco 

to play the greeting on the machine. Christian's motion to 

suppress the evidence obtained as a result of Officer Wagner's 

search of the truck, including the evidence obtained from the 

answering machine, was granted. 
 4 

 A 

 Christian first contends that this Court should bar the 

Commonwealth's claim because it failed to raise the issue of 

standing at the suppression hearing. The record fails to support 

Christian's contention. The Commonwealth elicited testimony from 

Officer Wagner, the hearing's only witness, that Christian could 

not provide proof of ownership of the truck when asked. The 

Commonwealth also made clear that it was contesting Christian's 

standing to challenge the suppression of the office equipment by 

seeking to elicit testimony at the hearing that the equipment was 

owned by a church. The Commonwealth also sought to have admitted 

a stipulation regarding the ownership of the equipment, thought 

to have been agreed to by Christian's counsel. Finally, at the 

trial court's direction, the Commonwealth provided the court a 

legal memorandum in lieu of closing argument, asserting clearly 

the Commonwealth's contention that Christian failed to establish 

standing with respect to either the truck or the tape machine. 

Christian's brief likewise addressed the issue of standing, 

contending, in effect, that the Commonwealth had the burden to 

establish that Christian did not have standing and that it failed 

to put on any such evidence. While the trial court did not rule 

on the question, it is apparent from both the briefs and the 

evidence the Commonwealth sought to elicit, that both parties 

believed that standing was in dispute and before the court. 
 5 

Accordingly, the Commonwealth's appeal is properly before us. 

 In this appeal by the Commonwealth of the trial court's 

order suppressing evidence, we view the evidence in the light 

most favorable to Christian, and we will not reverse the trial 

judge's decision unless it is plainly wrong. Code § 8.01-680. 

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 

48 (1991). 

 An accused has standing to challenge a search only if he has 

a legitimate expectation of privacy in the area searched. Hardy 

v. Commonwealth, 17 Va. App. 677, 680, 440 S.E.2d 434, 436 

(1994). With respect to an automobile, an accused has standing 

to object to a search only if he is the "owner or in lawful 

possession of it." Id. (citing Josephs v. Commonwealth, 10 Va. 

App. 87, 92-95, 390 S.E.2d 491, 493-96 (1990)). An accused's 

ownership or possessory interest determines standing, not his 

physical relationship to the vehicle as "driver" or "occupant." 

Indeed, "absent evidence that the driver of a vehicle has lawful 

and exclusive possession and control thereof the driver has no 

standing, simply by virtue of his status as [driver], to raise a 

Fourth Amendment challenge." Delong v. Commonwealth, 234 Va. 

357, 363, 362 S.E.2d 669, 672 (1987) (emphasis added) (citing 

United States v. Manbeck, 744 F.2d 360, 374 (4th Cir. 1984), 

cert. denied sub nom. O'Hare v. United States, 469 U.S. 1217 

(1985) (driver did not have standing when he failed to testify at 

suppression hearing, ownership of truck was never clearly 
 6 

established, and no other indicia of an expectation of privacy in 

the truck itself was submitted)); see also Barnes v. 

Commonwealth, 234 Va. 130, 135, 360 S.E.2d 196, 200 (1987).1 In 

Delong, to meet this burden, the defendant established, by 

stipulation made with the Commonwealth, that the vehicle he was 

driving was owned by his girlfriend. Delong, 234 Va. at 363, 362 

S.E.2d at 672. 

 The burden of establishing standing to challenge a search 

rests with the accused. Jones v. United States, 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); Josephs v. Commonwealth, 10 

Va. App. 91, 390 S.E.2d at 493 (1990); Shearer v. Commonwealth, 9 

Va. App. 394, 404, 388 S.E.2d 828, 833 (1990); Williams v. 

Commonwealth, 4 Va. App. 53, 70, 354 S.E.2d 79, 88 (1987). To 

meet this burden, the accused must produce evidence to 

demonstrate a legitimate expectation of privacy in the place or 

item searched. See Delong, 234 Va. at 363, 362 S.E.2d at 672; 

Abell v. Commonwealth, 221 Va. 607, 614, 272 S.E.2d 204, 208 

(1980). Nothing in the record establishes that Christian was in 

rightful possession of the truck. Having failed to meet his 

 

 1Barnes denied an accused standing to challenge the search 

of the apartment he permissibly occupied. The Barnes Court found 

that the accused's mere presence in the apartment did not confer 

upon him a legitimate expectation of privacy. 
 7 

burden on this issue, Christian cannot claim standing to 

challenge the search of the truck. 

 Likewise, Christian had the burden of establishing a 

possessory interest in the answering machine. See Chesson v. 

Commonwealth, 216 Va. 827, 831, 223 S.E.2d 923, 926 (1976). This 

he failed to do. The only evidence on the issue was presented by 

Officer Wagner who testified that Christian claimed to have 

received the answering machine as a gift from his brother. It is 

clear under Virginia law that the mere allegation of a possessory 

interest in the property seized is not enough. Id. It is 

"incumbent upon the defendant . . . to establish by evidence the 

truth of his allegation." Id.

 B 

 Even if we assume Christian had standing to challenge the 

search, the trial court's suppression order must still be 

reversed. After making a lawful custodial arrest, the police may 

search the person arrested and the immediately surrounding area 

without a warrant. New York v. Belton, 453 U.S. 454, 457 (1980); 

see Pack v. Commonwealth, 6 Va. App. 434, 436, 368 S.E.2d 921, 

922 (1988). The proper scope of such a search incident to lawful 

arrest is "the area within immediate control of the arrestee." 

Belton, 453 U.S. at 460; Chimel v. California, 395 U.S. 752, 763 

(1969). With respect to a car, the Belton Court defined that 

"area of control" in terms of the car's passenger compartment, 

"the area into which an arrestee might reach in order to grab a 
 8 

weapon or evidentiary ite[m]." Belton, 453 U.S. at 460 (quoting 

Chimel, 395 U.S. at 763). 

 "Might reach" are the operative words: the arrestee's 

inability to actually reach anything is irrelevant. See Pack, 6 

Va. App. at 437, 368 S.E.2d at 923; Albert v. Commonwealth, 2 Va. 

App. 734, 739, 347 S.E.2d 534, 537 (1986); see also Belton, 453 

U.S. at 461-62 n.5; 3 W. LaFave, Search and Seizure 15-16 n.73, 

74 (2d ed. 1987 and 1995 Supp.) (citations omitted). Moreover, 

having control of the items or custody of the arrestee at the 

time of the search does not preclude the police from performing a 

search incident to an arrest. Id. Thus, the time at which an 

arrestee "might have reached" an item is not limited to the time 

of the search. 

 Applying Belton's principles to this case, the question is 

not whether the bed of the pickup is part of the "passenger 

compartment;" but, rather, whether the bed of the pickup was an 

area into which Christian might have reached. Before his arrest, 

Christian was outside the truck when Officer Wagner first 

approached; he kept the door at least partially opened while 

talking with Officer Wagner; and he exited the truck to perform 

sobriety tests. Thus, the open bed of the truck remained an area 

into which Christian might have reached during the time he was in 

contact with Officer Wagner. 

 A valid search incident to arrest extends throughout the 

area searched, allowing the police to search thoroughly any 
 9 

containers found there. Belton, 453 U.S. at 460-61; Pack, 6 Va. 

App. at 437, 368 S.E.2d at 923; Albert, 2 Va. App. at 739, 347 

S.E.2d at 537. This is so even though such containers "will 

sometimes be such that they could hold neither a weapon nor 

evidence of the criminal conduct for which the suspect was 

arrested." Belton, 453 U.S. at 461. Accordingly, the search of 

the answering machine, and the tape within, was a valid extension 

of the search incident to Christian's arrest. 

 For the reasons stated above, this case is reversed and 

remanded. 

 Reversed and remanded.
 10 

Benton, J., dissenting. 

 On a Commonwealth's appeal from a ruling suppressing 

evidence, we must view the evidence adduced at the suppression 

hearing in the light most favorable to upholding the ruling. 

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 

48 (1991). So viewed, the evidence in this case proved that 

Christian was the driver of the vehicle and had possession of the 

vehicle. Absent any evidence to the contrary, that evidence was 

sufficient to prove that Christian lawfully possessed the truck 

and had a reasonable expectation of privacy in the vehicle and 

its contents. No evidence proved that the vehicle was not 

Christian's or was not lawfully in Christian's control and 

possession. 

 A person who lawfully possesses a vehicle, whether that 

person's or another's, has standing to challenge the search of 

that vehicle while that person is present in the vehicle. See

United States v. Miller, 821 F.2d 546, 548 (11th Cir. 1987); 

Hardy v. Commonwealth, 17 Va. App. 677, 680, 440 S.E.2d 434, 436 

(1994). Moreover, the principle is well established that "[t]he 

privacy interest that must be established to support standing is 

an interest in the area searched, not an interest in the items 

found." United States v. Manbeck, 744 F.2d 360, 374 (4th Cir. 

1984). Thus, the trial judge properly reached the merits of the 

suppression motion because no evidence disputed the right of 

Christian to be lawfully in possession of the vehicle. 
 11 

 Citing United States v. Robinson, 414 U.S. 218 (1973), and 

New York v. Belton, 453 U.S. 454 (1981), the Commonwealth argues 

that the police officer's seizure and playing of the tape was a 

search incident to arrest. I would uphold the trial judge's 

ruling that it was not. 

 The evidence proved that Christian was in the passenger 

portion of the truck when the police officer approached and 

questioned him. The officer asked him to exit the truck and 

arrested him. After Christian was arrested and searched, the 

police officer searched the rear storage bed of the truck and a 

toolbox. As a result of that search, the officer seized a 

telephone answering machine. The officer took the answering 

machine to a nearby building, plugged the machine into an 

electrical source, and played a tape found in the machine. 

 In Robinson, the Supreme Court considered the permissible 

scope of the search of the person of Robinson, the arrestee. 414 

U.S. at 223-24. During the search of his person, the officer 

discovered a "crumpled" cigarette package, opened it, and found 

heroin. Id. at 223. In deciding whether the package in 

Robinson's pocket could be searched, the Court stated that "[t]he 

justification or reason for the authority to search incident to a 

lawful arrest rests quite as much on the need to disarm the 

suspect in order to take him into custody as it does on the need 

to preserve evidence on his person for later use at trial." Id.

at 234 (emphasis added). Upon that justification, the Court held 
 12 

"that in the case of a lawful custodial arrest a full search of 

the person is not only an exception to the warrant requirement of 

the Fourth Amendment, but is also a 'reasonable' search under 

that Amendment." Id. (emphasis added). 

 The Court in Belton held only that when an occupant of a 

motor vehicle is being arrested, the police may search the 

passenger compartment of the vehicle without any specific showing 

of an individualized apprehension of danger. The Court's ruling 

carefully and explicitly limited its holding to the passenger 

compartment. Indeed, the Court stated that the "holding 

encompasses only the interior of the passenger compartment of an 

automobile and does not encompass the trunk." 453 U.S. at 460-61 

n.4. The Court also declined to broaden the rule to include the 

entire automobile. Id. at 462-63 n.6. 

 When Christian was arrested, he was seated in the driver's 

seat of the passenger cabin of the pickup truck. Unlike the 

circumstances in Robinson, the police did not in this case seize 

the tape from Christian's person. As stated in Belton, the 

rationale that permits the police to search Christian in a search 

incident to arrest cannot be expanded to encompass a search of 

the portion of the vehicle not occupied by him. 453 U.S. at 461. 

 Exceptions to the Fourth Amendment are "jealously and carefully 

drawn." Jones v. United States, 357 U.S. 493, 499 (1958). 

Nothing in either Belton or Robinson allows the police to conduct 

a warrantless search of the entire truck under the guise of a 
 13 

search of an arrestee incident to the arrest. Furthermore, none 

of the cases cited by the Commonwealth or the majority sanction 

the playing of the tape seized from the telephone recording 

machine without a warrant. See United States v. Turk, 526 F.2d 

654, 665-66 (5th Cir. 1976). 

 I would uphold the trial judge's ruling that the playing of 

a tape seized from the answering machine that was in the rear of 

the truck, physically separated from the passenger cabin, was an 

unlawful search. Therefore, I dissent.