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Running away from the police after properly parking does not equal abandonment of the car

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Running away from the police after properly parking does not equal abandonment of the car. The owner still retains a reasonable expectation of privacy over the car, and therefore has standing to challenge a search of the car. Watts v. Virginia, ___ Va. App. ___ (Nov. 2, 2010).

However, driving away from the police in an attempt to flee the police, and then running away from the car, can abandon one’s right to challenge a search of the car. Watts .

Here is some of the key language of Watts

Our holding in Wells v. Commonwealth, 6 Va. App. 541, 371 S.E.2d 19 (1988), does not compel a different result. In Wells, we discussed Fourth Amendment abandonment principles in dicta. We opined that when the defendant, while fleeing from police in his vehicle, drove the wrong way into the one-way driveway of a public school, stopped his vehicle as if to surrender, and then fled the scene on foot, he surrendered his expectation of privacy in the vehicle and could not object to anything that transpired after he fled the scene. Id. at 545, 555, 371 S.E.2d at 21, 26. Appellant’s case is readily distinguishable because he parked his vehicle alongside other cars in a private parking lot and exited the vehicle before Officer Maxey approached and initiated a consensual encounter. The evidence here, viewed in the light most favorable to the Commonwealth, fails to establish that when appellant fled on foot after Officer Maxey voiced an intention to pat him down, he did so with an intent to abandon the vehicle. Compare Hawley v. Commonwealth, 206 Va. 479, 480-83, 144 S.E.2d 314, 315-17 (1965) (where the defendant, upon checking out of a motel, obtained permission from the manager to leave his car on the motel property for three or four days but had not returned to claim it after eight days, at which time the manager telephoned police, holding that the defendant determined to abandon any right in the automobile at some time prior to the search), United States v. Lynch, 290 F. Supp. 2d 490, 493, 497 (M.D. Pa. 2003) (holding the defendant abandoned any reasonable expectation of privacy in his vehicle when, in response to a police pursuit, he fled the vehicle while the driver’s door was open and the motor was still running), and Oswald, 783 F.2d at 667 (holding the evidence established the defendant abandoned the car on the side of the road when it caught on fire because he caught a ride with a passing motorist, did not report the fire, and had not returned to the scene of the fire two to three hours afterward, the span of time in which a person having a legitimate expectation of privacy in the car’s contents could reasonably have been expected to show up), with United States v. Brown, No. 98-6720 (6th Cir. Mar. 15, 2000), available at 2000 U.S. App. LEXIS 4250 (holding in dicta that the prosecution failed to establish the defendant abandoned his vehicle after a shooting, where it was parked two blocks from the scene of the shooting and was found to be on fire a little over three hours after the shooting, and the defendant left the scene of the shooting on foot, was not seen anywhere near his vehicle afterward, and was not shown to have known that his car had burned before he was taken into custody for the shooting), and People v. Anderson, 246 N.E.2d 508, 509 (N.Y. 1969) (holding abandonment not proved where the defendant dropped a tin box just prior to the police officer’s making contact with the defendant’s hand, as the evidence did not prove the defendant threw it away or attempted to dispose of it and the police officer picked up the box so soon after it had been dropped that it [was] impossible to determine whether or not the defendant, if given the opportunity, would have picked up the box himself).