VA: Defendant did not abandon car just because he ran off after being confronted by an officer after he got out of it

Defendant got of out his car in an apartment building parking lot. He was encountered by the officer who asked him questions. The officer said that he noticed a bulge in defendant’s waistband, and he was going to pat defendant down. Defendant then ran away and the officer could not catch him. The officer came back and looked in the car, and he noticed the console was not sitting right, and it likely was a storage place for drugs. He asked around if anybody knew whose car this was, and nobody knew. He searched the car. The trial court held that the car was abandoned, but it wasn’t. Watts v. Commonwealth, 57 Va. App. 217, 700 S.E.2d 480 (2010):

Here, appellant neither denied ownership of the car nor relinquished physical control of it in the context of this case, and the additional circumstances also do not support a finding of abandonment. Officer Maxey testified that when he inquired whether the car belonged to appellant, appellant readily admitted rather than denied ownership.

Regarding physical control of the vehicle, Officer Maxey testified that appellant parked in the private parking lot in a fashion similar to the other cars parked there and that he exited the vehicle voluntarily and began walking away before Maxey approached and made appellant aware of his presence. No evidence established appellant left the car unlocked or left the keys behind.

The evidence failed to establish an additional element relevant to the “physical control” analysis–that appellant lacked authority to park where he did. Although Officer Maxey spoke with an unknown number of residents of the apartment building and none of them recognized the car, Officer Maxey did not ask whether any of the residents had seen or recognized appellant himself, and because Officer Maxey did not know who appellant was at that time, he was unable to ask about appellant by name. The Commonwealth also did not establish that Officer Maxey spoke with all of the building’s residents. Further, the gold vehicle bore temporary license tags, and appellant had told Officer Maxey he “just” bought the vehicle, thereby leaving open the hypothesis that appellant was authorized to park the car there and that the residents with whom Officer Maxey spoke simply were not yet able to recognize his new vehicle on sight.