Anderson v. Com.

• Decision Date: 16 September 1997
• Docket Number: No. 2145-96-1,2145-96-1
• Citation: 490 S.E.2d 274,25 Va.App. 565
• Parties: Lemar Jamie ANDERSON, s/k/a Lamar Jamie Anderson v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

Page 274

490 S.E.2d 274

25 Va.App. 565

Lemar Jamie ANDERSON, s/k/a Lamar Jamie Anderson v.COMMONWEALTH of Virginia.

No. 2145-96-1.

Court of Appeals of Virginia Norfolk.

Sept. 16, 1997.

Order Granting En Banc Oct. 14, 1997.

James Amery Thurman(Thurman & Thurman, on brief), Virginia Beach, for appellant.

Margaret Ann B. Walker, Assistant Attorney General(James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: COLEMAN and WILLIS, JJ., and HODGES, Senior Judge.

WILLIS, Judge.

On appeal, Lemar Jamie Anderson contends that the trial court erred in denying his motion to suppress evidence seized from his person.He argues that his prior waiver of his Fourth Amendment right against unreasonable searches and seizures could not validate an otherwise invalid search.We disagree and affirm the judgment of the trial court.

I.FACTS

On January 9, 1995, pursuant to a written plea agreement, Anderson pled guilty to feloniously possessing a firearm on school property.Under the terms of the plea agreement, Anderson agreed to waive "his Fourth Amendment right against unreasonable searches and seizures" for one year.Following a colloquy in which Anderson acknowledged that he understood the agreement, the sentencing judge found that Anderson's plea was entered freely and voluntarily.Prior to the trial court's acceptance of the plea agreement, the prosecutor stated:

[W]e've given him every incentive in the world to remain of good behavior.He will know as he's out and about that he can be stopped at any time and be checked to make sure he is not carrying drugs or weapons or anything else.

At the sentencing hearing, the Commonwealth introduced certified copies of Anderson's two prior misdemeanor convictions for possession of marijuana with intent to distribute.The stated purpose for offering Anderson's prior record was to demonstrate his history of recidivism and drug use and to explain the inclusion of the waiver provision.

In accordance with the plea agreement, the January, 1995 sentencing order provided, in pertinent part:

That the defendant shall waive his Fourth Amendment right against unreasonable searches and seizures for a term of one year from the date of sentencing, to-wit: he shall submit his person, place of residence and property to searches and seizures at any time of the day or night by any law enforcement officer with or without a warrant.

On June 21, 1995, two City of Virginia Beach police officers working as private security guards saw Anderson and two other individuals alight from a van, "being very loud in public."The officers approached the men and seized from Anderson: 0.07 grams of cocaine, which he dropped on the ground; a .357 magnum firearm in his backpack; and 0.18 ounces of marijuana in a baggie in his backpack.The circumstances did not support a warrantless search of Anderson's person.

Anderson was indicted for possession of cocaine, possession of a firearm after having been convicted of a felony, possession of a controlled substance while in possession of a firearm, and possession of marijuana.He moved pre-trial to suppress the evidence seized from his person, arguing that his prior waiver of his Fourth Amendment rights was invalid.The trial court ruled that the waiver was valid and denied the motion to suppress.

II.OTHER JURISDICTIONS

Anderson contends that his waiver of his Fourth Amendment rights as a condition of the January, 1995 plea agreement did not validate the search of his person.This issue is one of first impression in Virginia.However, other jurisdictions have addressed similar questions regarding waiver of Fourth Amendment rights as a condition of probation or of sentence suspension.See generallyPhillip E. Hassman, Annotation, Validity of Requirement That as Condition of Probation, Defendant Submit to Warrantless Searches, 79 A.L.R.3d 1083(1977).

A.

In Tamez v. State, 534 S.W.2d 686(Tex.Ct.Crim.App.1976), the Texas Court of Criminal Appeals struck down a probationary condition requiring the defendant to submit his person, residence or vehicle to search by any peace officer at any time.Acknowledging that probationary conditions may be upheld if reasonably related to rehabilitation of the accused or protection of the public, id. at 691, the Texas court invalidated the Fourth Amendment waiver because it found: (1) the choice of accepting the condition or of going to prison rendered the defendant's decision coerced and involuntary; and (2) the waiver was too broad and did not serve the ends of probation.Id. at 692.Similarly other jurisdictions have struck down so-called "blanket" provisions because of their overbreadth.SeeUnited States v. Consuelo-Gonzalez, 521 F.2d 259(9th Cir.1975)(en banc )(search provision too broad under federal statute);Grubbs v. State, 373 So.2d 905(Fla.1979)(probation condition imposed by trial judge allowing warrantless search at any time by law enforcement official too broad);Kirkpatrick v. State, 412 So.2d 903, 905(Fla.Dist.Ct.App.1982)(drug offender's probation search condition "improper and should be stricken");State v. Fields, 67 Haw. 268, 686 P.2d 1379(1984)(probation condition permitting warrantless search for drugs at any time too broad absent reasonable suspicion).Some courts have held that the waiver of Fourth Amendment rights in return for probation or parole is legally coercive, thereby negating voluntary consent.SeeUnited States ex rel. Coleman v. Smith, 395 F.Supp. 1155, 1157(W.D.N.Y.1975);People v. Peterson, 62 Mich.App. 258, 233 N.W.2d 250, 255(1975).But seePeople v. Richards, 76 Mich.App. 695, 256 N.W.2d 793, 795(1977).

B.

Other jurisdictions have taken a different view.In People v. Mason, 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630(1971), the California Supreme Court upheld a probation condition that required a narcotics offender to " 'submit his person, place of residence, vehicle, to search and seizure at any time of the day or night, with or without a search warrant, whenever requested to do so by the Probation Officer or any law enforcement officer.' "Id.97 Cal.Rptr. at 303, 488 P.2d at 631.The California court ruled that this condition had been validly imposed, was "reasonably related to the probationer's prior criminal conduct[,] and [was] aimed at deterring or discovering subsequent criminal offenses."Id. at 304, 488 P.2d at 632.Moreover, "when [a]defendant in order to obtain probation specifically agreed to permit at any time a warrantless search of his person, car and house, he voluntarily waived whatever claim of privacy he might otherwise have had."Id. at 306, 488 P.2d at 634.SeeOwens v. Kelley, 681 F.2d 1362(11th Cir.1982)(upholding condition providing for warrantless searches by law enforcement or probation officers to extent conducted for probationary purposes);State v. Montgomery, 115 Ariz. 583, 566 P.2d 1329(1977)(upholding condition that a convicted burglar submit to warrantless searches at any time by law enforcement or probation officers);In re Marcellus L., 229 Cal.App.3d 134, 279 Cal.Rptr. 901(1991)(upholding warrantless search by police officer who lacked prior knowledge of probation search condition);State v. Josephson, 125 Idaho 119, 867 P.2d 993(App.1993)(holding that defendant voluntarily consented to search condition);Allen v. State, 258 Ga. 424, 369 S.E.2d 909(1988)(plea bargain agreement to waive Fourth Amendment protection valid);Himmage v. State, 88 Nev. 296, 496 P.2d 763(1972);State v. Perbix, 331 N.W.2d 14(N.D.1983).

Some jurisdictions that permit a condition of probation or parole to circumscribe a convicted criminal's Fourth Amendment protection from governmental intrusion have limited the scope of the warrantless search condition.Some courts have restricted who may authorize the search ¹ and the grounds upon which warrantless searches may be made.²Some courts require a reasonable nexus between the warrantless search provision and the offense for which the offender was convicted.³

In In re: Tyrell J., 8 Cal.4th 68, 32 Cal.Rptr.2d 33, 876 P.2d 519(1994), a juvenile was searched by a police officer who was unaware that the juvenile had waived his Fourth Amendment rights as a condition of probation.Despite the lack of probable cause, the California Supreme Court held that "a juvenile probationer subject to a valid search condition does not have a reasonable expectation of privacy over his person or property."The court noted that:

In this case, [the defendant] was subject to a valid search condition, directly imposed on him by the juvenile court in a prior matter.We presume that he was aware of that limitation on his freedom, and that any police officer, probation officer, or school official could at any time stop him on the street, at school, or even enter his home, and ask that he submit to a warrantless search.There is no indication the minor was led to believe that only police officers who were aware of the condition would validly execute it.The minor certainly could not reasonably have believed [the police officer] would not search him, for he did not know whether [the officer] was aware of the search condition.Thus, any expectation the minor may have had concerning the privacy of his bag of marijuana was manifestly unreasonable.

Id.32 Cal.Rptr.2d at 43-44, 876 P.2d at 529-30(footnote omitted).

Anderson argues that the California cases are inapposite because they concern conditions of probation, whereas his waiver was a condition of a suspended sentence.The law of Virginia distinguishes the suspension of a sentence from the imposition of probation.SeeGrant v. Commonwealth, 223 Va. 680, 292 S.E.2d 348(1982).Code§§ 19.2-303, 19.2-304.However, the conditions imposed in probation and those imposed in the suspension of sentences need not be analyzed in different contexts.The common objective of such conditions is to protect society and to promote rehabilitation of the convict....