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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Hodges
Argued at Chesapeake, Virginia
Record No. 1436-02-1
PHILLIP McCURTIS ASKEW, JR.
COMMONWEALTH OF VIRGINIA
BY ROBERT J. HUMPHREYS
NOVEMBER 4, 2003
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
William C. Andrews, III, Judge
Charles E. Haden for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on brief), for appellee.
Phillip McCurtis Askew appeals his convictions, upon a
conditional plea of guilty, for 10
counts of robbery, 10 counts of wearing a mask in public, 10
counts of use of a firearm in the
commission of robbery, one count of use of a firearm in the
commission of abduction, and one
count of abduction.Askew
contends that the trial court erred in denying his motion to suppress
his confession and certain evidence obtained by police from a
trash can located outside the
rooming house in which he lived. Specifically, Askew argues that
police unlawfully continued
to "interview" him, in the absence of counsel, despite
the fact that Askew had "unequivocally
invoked his right to an attorney." Askew further argues
that he possessed an expectation of
privacy in the trash can located outside of the rooming house
and that police unlawfully searched
the trash can. For the reasons that follow, we affirm the
judgment of the trial court.
We first note that, during his arraignment, Askew entered a
guilty plea to each of the
relevant charges, "voluntarily," but "with the
exception of Alford."
Askew agreed that the
Commonwealth possessed sufficient evidence to convict him of the
charges and pled guilty.
When advised that the plea forfeited his right to appeal,
Askew’s trial attorney said "we
have . . . on the record already the objections and exceptions .
. . [concerning] the voluntariness
and propriety of the confession," and the
"admissibility of certain physical evidence that was
recovered by police authorities based on the search of the
dwelling and surroundings." The trial
court accepted Askew’s plea in this regard, and found him guilty
as charged on the relevant
Before we address the merits of Askew’s appeal, we must first
address his contention
that, although he used the term "Alford" in entering
his plea of guilty, he intended to enter a
conditional plea of guilty pursuant to Code ? 19.2-254.Askew
claims that both the
Commonwealth and the trial court understood Askew to be entering
a conditional plea of guilty,
rather than an "Alford" plea, and that he therefore,
properly preserved his questions presented on
In its brief on appeal, the Commonwealth concedes that Askew
"in fact conditionally
pled guilty pursuant to Code ? 19.2-254, and thus may properly
raise his suppression hearing
issues on appeal." Accordingly, and because the record
arguably supports this position, we
assume, without deciding, that Askew properly preserved the
suppression issues for appeal, and
we proceed to the merits of Askew’s appeal. See McLean v.
Commonwealth, 30 Va. App. 322,
331, 516 S.E.2d 717, 721 (1999) ("’The purpose of Rule
5A:18 is to provide the trial court with
the opportunity to remedy any error so that an appeal is not
necessary.’" (quoting Knight v.
Commonwealth, 18 Va. App. 207, 216, 443 S.E.2d 165, 170
(1994))); see also Campbell v.
Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991)
("It is sufficient, however, if ‘at
the time the ruling or order of the court is made or sought, [a
party] makes known to the court the
action which he desires the court to take or his objections to
the actions of the court and his
grounds therefor.’" (quoting Code ? 8.01-384)).
We begin our analysis by recognizing that on an appeal of a
trial court’s denial of a
motion to suppress:
[T]he burden is on the appellant to show that the trial court’s
decision constituted reversible error. [This Court views] the
evidence in the light most favorable to the prevailing party
granting to it all reasonable inferences deducible therefrom.
Court will] review the trial court’s findings of historical fact
for "clear error," but [this Court reviews] de novo
the trial court’s
application of defined legal standards to the particular facts
case, such as determinations of reasonable suspicion and
Quinn v. Commonwealth, 25 Va. App. 702, 712, 492 S.E.2d 470,
We do not, however, consider the merits of Askew’s first
argument on appeal, contending
that the trial court erred in denying his motion to suppress his
confession. The record reflects
that Askew’s trial attorney made an oral motion before the trial
court, requesting the trial court to
suppress the confession. At a hearing, Askew produced evidence
concerning the circumstances
surrounding the confession. Nonetheless, Askew failed to raise
below the specific argument he
now raises on appeal. Specifically, the record reflects that
although Askew asked the trial court
to suppress his confession, and although he put on evidence
concerning the circumstances under
which the confession was made, Askew failed to make any argument
to the trial court concerning
the lawfulness of the attendant police actions. Instead, Askew’s
trial attorney merely
"submit" the matter on the evidence and gave no
indication of the violation of law requiring
Askew’s bare assertion, in the form of his oral motion to
suppress, that the "alleged
confession given by [Askew] to representatives of the Hampton
Police Department" should be
excluded, is insufficient to preserve the issue for purposes of
appeal. See Rule 5A:18; see also
McLean, 30 Va. App. at 333, 576 S.E.2d at 722 (finding that
"nothing" in a defendant’s mere
assertion that the Commonwealth’s proffered instruction was
"unclear and improper" preserved
an issue for appeal). Indeed, it is fundamental that "[n]o
ruling of the trial court . . . will be
considered as a basis for reversal unless the objection was
stated together with the grounds
therefor at the time of the ruling . . . ." Rule 5A:18.
"’The main purpose of requiring timely
specific objections is to afford the trial court an opportunity
to rule intelligently on the issues
presented, thus avoiding unnecessary appeals and
reversals.’" Ohree v. Commonwealth, 26
Va. App. 299, 307, 494 S.E.2d 484, 488 (1998) (quoting Weidman
v. Babcock, 241 Va. 40, 44,
400 S.E.2d 164, 167 (1991)). When specific objections have not
been made, this Court will not
consider an argument on appeal which was not presented to the
trial court. Ohree, 26 Va. App.
at 308, 494 S.E.2d at 488. This rule applies with equal force to
constitutional claims. Id.
Turning to Askew’s next contention, we recognize that:
The fourth amendment protects individuals against illegal
and seizures by the government. However, the rights guaranteed
under the fourth amendment are personal rights that may not be
vicariously asserted. Rakas v. Illinois, 439 U.S. 128, 133-34
(1978). Also, the fourth amendment "protects people, not
Katz v. United States, 389 U.S. 347, 351 (1967). . . . [T]he
protections of the exclusionary rule are only available to
individuals whose fourth amendment rights have been violated.
Rakas, 439 U.S. at 134; accord United States v. Salvucci, 448
83, 85 (1980); McCoy v. Commonwealth, 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,
defendant "objectively had a reasonable expectation of
the time and place of the disputed search." McCoy, 2 Va.
311, 343 S.E.2d at 385.
Commonwealth v. Ealy, 12 Va. App. 744, 750-51, 407 S.E.2d 681,
685 (1991). Although
Askew correctly notes that warrantless entries and searches of
dwellings are presumptively
unreasonable and cast upon the prosecution the burden of
justifying such a search, Welsh v.
Wisconsin, 466 U.S. 740, 749-50 (1984), that burden arises
"only if the defendant demonstrates
his Fourth Amendment rights were violated by the challenged
search or seizure." United States
v. Padilla, 508 U.S. 77, 81 (1993) (emphasis in original). Thus,
the person who claims
protection of the Fourth Amendment first bears the burden of
demonstrating a legitimate
expectation of privacy in the place searched. Rawlings v.
Kentucky, 448 U.S. 98, 104 (1980).
The United States Supreme Court has held that the Fourth
Amendment protects the
curtilage of a house. United States v. Dunn, 480 U.S. 294,
300-02 (1987). However, the
Supreme Court has also held that the Fourth Amendment does not
protect a person’s "trash, left
for collection in an area accessible to the public,"
because the person no longer has a reasonable
expectation of privacy in such items. California v. Greenwood,
486 U.S. 35, 41 (1988).
Askew presented no evidence on this issue at the suppression
hearing. Instead, his trial
If the Court please, there was one other matter that I feel that
can do by stipulation or proffer as opposed to having to put
evidence on and bring officers here from other cities. That
with the question on – and I ask the Commonwealth to jump in
correct me if I misstate anything in this proffer.
On March the 8th of 1999, the day before the conversations with
Mr. Askew, with the two detectives who discussed this matter
him, and who have appeared in this court today; two detectives
came from Newport News, came to a location known as 1043 28th
Street, in the City of Newport News. Those two detectives were
armed with a search warrant, and approached a lady by the name
of Elsie Whitaker. Ms. Whitaker – they asked about – excuse
(Counsel and [Askew] confer.)
* * * * * * *
I misspoke. If the Court please, there was no search warrant.
detectives came and spoke to Elsie Whitaker who resided at that
address. That address is a rooming house that has three or four
different rooms or apartments in it. That those detectives asked
Ms. Whitaker if they could search the premises, and she gave
consent. It is –
(Counsel and [Askew] confer.)
Okay. Mr. Askew advises me that she did not give consent. That
they proceeded to search a trash can that was located outside of
house, beside the house. Not at the street area, but beside the
house. And in that trash can, found a bebe [sic] gun and some
form of mask. And there was no notice or consent requested or
given by Mr. Askew who, prior to his being arrested on the PB-15
the day before, the day or so before, had resided at that
Mr. Askew’s request is that since he was not asked concerning
consent to search, and since there was no search warrant, would
ask that the bebe [sic] pistol and mask recovered from the trash
outside of that premises, on the side of that premises, be
suppressed as not having a proper foundation to be introduced
evidence against him.
In response, the Commonwealth refused to concede that consent
was not obtained, and
also took the position that Askew, in any event, possessed no
expectation of privacy in the items
"recovered outside of the residence, discarded trash,
abandoned." Thus, the Commonwealth
contended Askew failed to make the requisite showing of standing
necessary to assert such a
Askew argues in his brief on appeal that the trash can in which
the contraband was found
was on the curtilage of his rooming house and, thus, was not in
an "area accessible to the public."
Id. In support of this argument, Askew points to his
"unrebutted" proffer to the trial court that
the trash can was located "beside the house."
The Supreme Court of Virginia has recognized that a
"unilateral avowal of counsel, if
unchallenged, or a mutual stipulation of the testimony expected
constitutes a proper proffer, and
that absent such acquiescence or stipulation, this Court will
not consider an error assigned to the
rejection of testimony unless such testimony has been given in
the absence of the jury and made
a part of the record in the manner prescribed by the Rules of
Court." Whittaker v.
Commonwealth, 217 Va. 966, 969, 234 S.E.2d 79, 81 (1977).
However, given the response from
the Commonwealth to Askew’s proffer, we do not accept Askew’s
suggestion that his proffer was
unchallenged by the Commonwealth.
We further reject Askew’s contention that his proffer
constituted "evidence," much less
evidence sufficient to carry his burden below. Indeed, a
determination of the extent of curtilage
is generally determined by four factors: "the proximity of
the area claimed to be curtilage to the
home, whether the area is included within an enclosure
surrounding the home, the nature of the
uses to which the area is put, and the steps taken by the
resident to protect the area from
observation by people passing by." Dunn, 480 U.S. at
We do not suggest that combining these factors produces a finely
tuned formula that, when mechanically applied, yields a
answer to all extent-of-curtilage questions. Rather, these
are useful analytical tools only to the degree that, in any
case, they bear upon the centrally relevant consideration —
whether the area in question is so intimately tied to the home
that it should be placed under the home’s "umbrella"
Id. Here, although Askew made a general proffer that the trash
can was "beside" the house, he
presented no evidence concerning the proximity of the trash can
to the house, nor the nature of
the area surrounding the trash can. Accordingly, and assuming
without deciding that Askew
would have had an expectation of privacy in the curtilage of the
rooming house, the trial court
was presented with no evidence from which it could make a
determination that the trash can was
within the curtilage of the house.
Based upon the foregoing, we affirm the judgment of the trial
Code ? 17.1-413, this opinion is not designated for publication. Further,
because this opinion has no precedential value, we recite only
those facts essential to our
Askew was also
charged with several additional offenses which were nol prossed by the
Commonwealth pursuant to a plea agreement. Those charges are not
at issue on this appeal.
"Alford plea" takes its name from North Carolina v.
Alford, 400 U.S. 25 (1970). An Alford guilty plea is one where
the defendant refuses to admit guilt, or even protests his
but, nonetheless, wants to enter a guilty plea. The Supreme
ruled that an admission of guilt is not a constitutional
the imposition of a criminal penalty.
Zigta v. Commonwealth, 38 Va. App. 149, 151 n. 1, 562 S.E.2d
347, 348 n. 1 (2002).
19.2-254 provides that "[w]ith the approval of the court and the consent of
Commonwealth, a defendant may enter a conditional plea of guilty
in a felony case, reserving the
right, on appeal from the judgment, to a review of the adverse
determination of any specified
In response to
questioning by the trial court, Askew proffered that Ms. Whitaker was
not the owner of the rooming house, but merely a