Anderson v. Com.

• Decision Date: 06 November 1998
• Docket Number: Record No. 980486.
• Parties: Lemar Jamie ANDERSON, s/k/a Lamar Jamie Anderson v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

507 S.E.2d 339

256 Va. 580

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

Record No. 980486.

Supreme Court of Virginia.

November 6, 1998.

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

Michael T. Judge, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: CARRICO, C.J., COMPTON, LACY, HASSELL, KOONTZ and KINSER, JJ., and STEPHENSON, Senior Justice.

STEPHENSON, Senior Justice.

The sole issue in this appeal is whether the Court of Appeals correctly decided that the trial court did not err in denying the defendant's motion to suppress evidence seized from his person and property.

I

On January 9, 1995, Lemar Jamie Anderson entered into a written plea agreement whereby he agreed to plead guilty to possession of a firearm upon school property in violation of Code § 18.2-308.1. The agreement provided that Anderson would be sentenced to two years' imprisonment with execution of the sentence suspended upon certain terms and conditions, one of those being that he

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

The plea agreement was signed by Anderson, his attorney, and the attorney for the Commonwealth. Above Anderson's signature, the following was set forth in large type:

BY HIS SIGNATURE BELOW, [ANDERSON] ACKNOWLEDGES THAT, IF THIS AGREEMENT IS ACCEPTED BY THE COURT, HE UNDERSTANDS HE IS WAIVING HIS FOURTH AMENDMENT RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES DURING THE PERIOD SPECIFIED ABOVE.

Thereafter, the plea agreement was presented to the trial court, the Circuit Court of the City of Virginia Beach. The court carefully questioned Anderson regarding his guilty plea and the terms and conditions of his plea agreement. Anderson informed the court that he fully understood those terms and conditions and the consequences of his guilty plea. The court also ascertained that Anderson's counsel had reviewed with Anderson the terms and conditions of the agreement, particularly the provision that Anderson "waives his right to be free from unreasonable search and seizures for a period of one year."

At the sentencing hearing, the Commonwealth introduced certified copies of Anderson's two prior convictions for possession of marijuana with intent to distribute, and the attorney for the Commonwealth stated the following:

[W]e've given [Anderson] 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.

The trial court found that Anderson's guilty plea was entered freely and voluntarily. The court also approved the plea agreement and incorporated its terms and conditions into its January 9, 1995 sentencing order.

On June 21, 1995, two off-duty Virginia Beach police officers working as private security guards saw Anderson and two companions alight from a van and "being very loud" in public. The officers approached the three and ordered them to stop, at which time they began to walk faster.

When the officers caught up to them, Anderson dropped "a white tissue or white bag" on the ground and placed his backpack by an apartment door. One of the companions took the backpack inside the apartment, but an officer demanded that the backpack be brought outside. The individual then gave the backpack to the officer, and the officer found a .357 magnum handgun inside the backpack. The officer then placed Anderson under arrest for carrying a concealed weapon. The officer retrieved the "small white baggie" that Anderson had dropped to the ground. The baggie contained a rock-like substance that proved to be 0.07 grams of cocaine. The officer also seized another baggie that Anderson had dropped to the ground as he was placed in the patrol car. This baggie contained 0.18 ounces of marijuana. The Commonwealth concedes that, absent a valid waiver, the circumstances did not support a warrantless search of Anderson's person and property.

Anderson was charged with possession of cocaine, possession of a firearm after having been convicted of a felony, and possession of marijuana.¹ Prior to trial, he moved to suppress the seized evidence, contending that his waiver of his Fourth Amendment rights in the January 5, 1995 plea agreement was invalid. The trial court denied the motion to suppress, finding that the waiver was valid.

Anderson then entered a conditional plea of guilty, reserving his right to appeal the denial of his motion to suppress. A panel of the Court of Appeals affirmed the trial court's denial of the motion to suppress, finding that Anderson's waiver of his Fourth Amendment rights in the January 5, 1995 plea agreement was valid. Anderson v. Commonwealth, 25 Va.App. 565, 490 S.E.2d 274 (1997). Upon a rehearing en banc, the full Court of Appeals also affirmed the trial court's decision for the reasons set forth in the panel opinion. Anderson v. Commonwealth, 26 Va.App. 535, 495 S.E.2d 547 (1998). We awarded Anderson an appeal.

II

Anderson advances a number of arguments to support his contention that the waiver of his Fourth Amendment rights was invalid. He first asserts that the waiver was the result of coercion, claiming that the waiver was not "negotiated at arms length by equal parties," but was "dictated by the Commonwealth." According to Anderson, "[h]e sought only to avoid time in jail."

To justify a search on the basis of a waiver, the Fourth Amendment requires the Commonwealth to show that the waiver was given voluntarily and did not result from coercion. See Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)

. Whether a waiver is given voluntarily is a factual issue to be determined from all the circumstances. Id.

In the present case, Anderson, while represented by counsel, executed the plea agreement containing the waiver. He acknowledged to the trial court that the agreement, including the waiver, was made knowingly and voluntarily, and he requested that the trial court approve it. The trial court was careful to make certain that Anderson understood the consequences of the waiver and that it was his voluntary act.

Therefore, we reject Anderson's contention and hold that the waiver was not the result of coercion. Indeed, if Anderson were correct, all plea agreements would be invalid on the basis of coercion because all such agreements involve to some degree a desire by a defendant to limit or diminish punishment. As the Supreme Court has held, however, a defendant can voluntarily agree to a bargain that provides for one of two undesirable options. Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). Furthermore, we agree with the Court of Appeals' observation that "[a]n offender's selection between two sanctions resulting from his own wrongdoing constitutes choice, not coercion." Anderson, 25 Va.App. at 573, 490 S.E.2d at 278.

Anderson also asserts that the trial court acted unreasonably in conditioning the suspended sentence upon a waiver of his Fourth Amendment rights. Code § 19.2-303 empowers a trial court to place conditions on a suspended sentence. The sole statutory limitation placed upon a trial court's discretion in its determination of such conditions is one of reasonableness. Dyke v. Commonwealth, 193 Va. 478, 484, 69 S.E.2d 483, 486 (1952) (decided under predecessor statute). In the present case, it is difficult to understand how Anderson can now contend that this condition of his suspended sentence was unreasonable when he knowingly and voluntarily agreed to it. Moreover, Anderson had a history of drug and firearm offenses, and the waiver provided the Commonwealth with a useful means of verifying Anderson's compliance with the condition that he would be of good behavior. Both Anderson and the Commonwealth benefited from the plea agreement in that Anderson received his freedom and the Commonwealth gained some control over his behavior. We conclude, therefore, that, based upon the nature of the offense, Anderson's background, and the surrounding circumstances, the Court of Appeals correctly decided that the trial court acted reasonably and did not abuse its discretion in conditioning Anderson's suspended sentence upon the waiver.

Anderson also claims that the waiver of his Fourth Amendment rights was invalid because it was overly broad. Again, we cannot ignore the fact that the waiver was the product of Anderson's voluntary act. As previously noted, its purpose was to ensure Anderson's good conduct. To achieve that end, the scope of the waiver needed to be broad, requiring Anderson to submit his person and property to search or seizure at any time by any law enforcement officer with or without a warrant. The scope of the waiver was broad, but, in the circumstance of the present case, we cannot say the waiver was invalid for its being overly broad. We also cannot say the one-year duration of the waiver, agreed upon by Anderson, invalidated it.

Anderson next contends that, by his plea agreement, he did not presently waive his Fourth Amendment rights; rather, he merely agreed that he would give such a waiver in the future should a search of his person or property be sought....