Glenn v. Com.

• Citation: 642 S.E.2d 282,49 Va. App. 413
• Decision Date: 20 March 2007
• Docket Number: Record No. 2390-04-2.
• Parties: Keith Isiah GLENN v. COMMONWEALTH of Virginia.
• Court: Court of Appeals of Virginia

642 S.E.2d 282

49 Va. App. 413

Keith Isiah GLENN v. COMMONWEALTH of Virginia.

Record No. 2390-04-2.

Court of Appeals of Virginia, Richmond.

March 20, 2007.

From the Circuit Court of the City of Colonial Heights, Herbert C. Gill, Jr., Judge.^*

Kevin Purnell (Dinkin & Purnell, PLLC, on briefs), Richmond, for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General; Josephine F. Whalen, Assistant Attorney General, on brief), for appellee.

Present: FELTON, C.J., and BENTON, ELDER, FRANK, HUMPHREYS, CLEMENTS, KELSEY, HALEY, PETTY and BEALES, JJ.

UPON REHEARING EN BANC

D. ARTHUR KELSEY, Judge.

Following the entry of a conditional guilty plea, the trial court convicted Keith I. Glenn of robbery and conspiracy to commit robbery. On appeal, Glenn argues that the trial court erred in denying his motion to suppress. A divided panel of this Court agreed with Glenn and vacated his convictions. Glenn v. Commonwealth, 48 Va.App. 556, 633 S.E.2d 205 (2006). At the Commonwealth's request, we set aside our panel opinion and reconsidered the matter en banc. Finding no error in the trial court's decision, we now affirm Glenn's convictions.

I.

On appeal from a denial of a suppression motion, we review the evidence "in the light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences." Kyer v. Commonwealth, 45 Va.App. 473, 477, 612 S.E.2d 213, 215 (2005) (en banc) (citation omitted).

Believing Glenn had just robbed a man, police officers went to the home of Glenn's grandparents where Glenn had been living for about two months. Glenn answered the door and was immediately arrested. The officers asked Glenn's grandfather for permission to search his home. Unable to speak because of a medical condition, the grandfather nodded his head in agreement. The officers then asked the grandfather if Glenn paid rent. The grandfather shook his head no. When asked if Glenn was in fact his grandson, the grandfather nodded yes.

The officers went to a bedroom identified by Glenn as the "room he slept in" and found, among other things, boxes containing his grandmother's clothing. The officers then went to a second room, identified by Glenn as a room that he also slept in on occasion. There, the officers discovered a backpack on the floor. Nothing suggested to the officers the backpack was locked, used for any particular purpose, or owned by any particular person. The officers opened the backpack and found the robbery victim's cell phone. When questioned later about the robbery, Glenn gave police a full confession.

Prior to trial, Glenn filed a motion to suppress seeking to exclude from evidence the cell phone found in the backpack.¹ At the suppression hearing, Glenn's grandmother testified that the backpack belonged to Glenn. The grandmother, however, conceded that Glenn did not pay rent. Nor did he have exclusive access to, or control over, any room in the house. She agreed to the characterization of the first room searched as "Keith's room" and "his bedroom." The woman's clothes in Glenn's bedroom were hers, she admitted. She also said she kept a box of her clothes in the second room. There were no locks on the doors of either room. The police officers added that the doors of both rooms were open at the time of their search.

The trial court denied Glenn's motion to suppress, reasoning that the grandfather's consent to search was given "without reservation or qualification." The scope of this consent, the court held, provided the officers with apparent authority to search the entire house and to open the backpack found during the search. Following the trial court's denial of his motion to suppress, Glenn entered a conditional guilty plea pursuant to Code § 19.2-254 and appealed his convictions for robbery in violation of Code § 18.2-58 and conspiracy to commit robbery in violation of Code § 18.2-22.

II.

Though the ultimate question whether the officers violated the Fourth Amendment triggers de novo appellate scrutiny, "we defer to the trial court's findings of `historical fact' and give `due weight to the inferences drawn from those facts by resident judges and local law enforcement officers.'" Slayton v. Commonwealth, 41 Va. App. 101, 105, 582 S.E.2d 448, 449-50 (2003) (citation omitted). "To prevail on appeal, the defendant must show that the trial court's denial of his suppression motion, when the evidence is considered in the light most favorable to the prosecution, was reversible error." Id. at 105, 582 S.E.2d at 450 (quoting Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464 (2003)).

In this case, Glenn argues that his grandfather's consent to search the home did not extend to opening the backpack and examining its contents. The trial court disagreed, as do we.

Under settled Fourth Amendment principles, "a search authorized by consent is wholly valid." Kyer, 45 Va.App. at 483, 612 S.E.2d at 218 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973)). "Police officers act in full accord with the law when they ask citizens for consent. It reinforces the rule of law for the citizen to advise the police of his or her wishes and for the police to act in reliance on that understanding." Barkley v. Commonwealth, 39 Va.App. 682, 696, 576 S.E.2d 234, 241 (2003) (citation omitted).

Consent to search can be given by one with actual authority or apparent authority. Actual authority exists if the consenting party has a privacy interest in the premises to be searched, and thus, a concomitant right to waive that interest and authorize the search. See United States v. Matlock, 415 U.S. 164, 170-71, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). Apparent authority exists if it merely appears to a reasonable officer that the consenting party has "authority over the premises." Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148 (1990). When multiple parties share privacy interests in the premises, any one of them with "common authority over the premises" may consent to the search despite the lack of express concurrence by others possessing a shared privacy interest. Id. at 181, 110 S.Ct. at 2797.

Here, the trial court found that the grandfather owned the home and consented to its search. The police knew Glenn was staying in his grandfather's home and confirmed Glenn did not have the status of a renter. From these facts, the police had ample reason to accept the grandfather's consent to search the home and every room in it. No circumstances suggested to the police that Glenn had preserved a private enclave within the home or had somehow undermined the grandfather's access to, or authority over, any space within his home. The police, therefore, crossed no Fourth Amendment boundary by searching either of the two rooms in which Glenn slept.

Perhaps so, Glenn argues, but that boundary was crossed when the police opened the backpack and looked inside. We disagree. Consent to search a space generally includes consent to search containers within that space. See Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1804, 114 L.Ed.2d 297 (1991). This principle applies to automobiles, Wyoming v. Houghton, 526 U.S. 295, 302, 119 S.Ct. 1297, 1301, 143 L.Ed.2d 408 (1999), as well as physical premises, United States v. Melgar, 227 F.3d 1038, 1041-42 (7th Cir.2000). "The rule regarding containers found in automobiles applies also to containers found in premises." 27 James W. Moore et al., Moore's Federal Practice & Procedure § 641.44, at 641-151 (3d ed. 2006). "A grant of consent to search premises includes consent to search closed containers found within the premises unless the officers have reliable information that the container is not under the control of the person granting consent." Id. (emphasis added); see also State v. Odom, 722 N.W.2d 370 373 (N.D. 2006) ("Specific consent to search every container is not needed when consent to search a room is given."); see generally 4 Wayne R. LaFave, Search and Seizure § 8.3(g), at 183 (4th ed. 2004).

This conclusion stems from the observation that a "lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search." United States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 2170-71, 72 L.Ed.2d 572 (1982) (footnote omitted). The consent to search a home may reasonably include the "authority to open closets, chests, drawers, and containers" in which the object of the search may be found. Id. at 821, 102 S.Ct. at 2171; see also United States v. Ladell, 127 F.3d 622, 624 (7th Cir.1997). "When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand." Ross, 456 U.S. at 821, 102 S.Ct. at 2171 (footnote omitted). This reasoning "applies equally to all containers, as indeed we believe it must." Id. at 822, 102 S.Ct. at 2171.

Practically speaking, "the real question for closed container searches is which way the risk of uncertainty should run." Melgar, 227 F.3d at 1041. "Is such a search permissible only if the police have positive knowledge that the closed container is also under the authority of the person who originally consented to the search . . . or is it permissible if the police do not have reliable information that the container is not under the authorizer's control." Id. (emphasis in original). We agree with the Seventh Circuit that it must be the latter. Any different approach

would impose an impossible burden on the police. It would mean that they could never search...