Glenn v. Com.

• Decision Date: 15 August 2006
• Docket Number: Record No. 2390-04-2.
• Parties: Keith Isiah GLENN v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

633 S.E.2d 205

48 Va. App. 556

Keith Isiah GLENN v. COMMONWEALTH of Virginia.

Record No. 2390-04-2.

Court of Appeals of Virginia, Richmond.

August 15, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

From the Circuit Court of the City of Colonial Heights, Herbert C. Gill, Jr., Judge.¹

Kevin Purnell (Dinkin & Purnell, P.L.L.C., on briefs), Richmond, for appellant.

Josephine F. Whalen, Assistant Attorney General (Judith W. Jagdmann, Attorney General; Robert F. McDonnell, Attorney General, on briefs), for appellee.

Present: ELDER, HUMPHREYS and KELSEY, JJ.

HUMPHREYS, Judge.

Keith I. Glenn ("Glenn") appeals his convictions for robbery, in violation of Code § 18.2-58, and conspiracy to commit robbery, in violation of Code § 18.2-22. On appeal, Glenn argues that the trial court erred in denying his motion to suppress, reasoning that the police officers, while searching his residence, obtained certain evidence in violation of his Fourth Amendment rights. Specifically, Glenn contends that, although his grandfather — the owner of the premises — consented to the search of the house, that consent did not give the officers the authority to open a closed container located in Glenn's bedroom. For the following reasons, we agree that, in this case, an objectively reasonable police officer would not have believed that the grandfather's consent to search the premises also gave the officer the authority to open the closed container. Accordingly, we reverse Glenn's convictions and remand this case for further proceedings.

I. BACKGROUND

"[O]n appeal of the denial of a motion to suppress, we view the evidence in the light most favorable to the Commonwealth, the party prevailing below." Aldridge v. Commonwealth, 44 Va.App. 618, 638, 606 S.E.2d 539, 549 (2004). So viewed, the evidence in this case establishes the following.

In the early hours of January 4, 2004, Glenn and his cousin were driving down a road in the City of Colonial Heights when they saw "a white guy walking down the street." Glenn and his cousin decided to rob the pedestrian. The two men pulled their car "off to a side street," got out of the vehicle, approached the pedestrian, pointed a gun at him, and said, "Give me all your money." After taking the victim's cell phone and $370 in cash, they fled.

Four days later, Detective Dan Ferguson, Detective Greg Russell, and Captain Mo Williams obtained arrest warrants for Glenn and his cousin. After taking Glenn's cousin into custody, the three officers went to the address identified on the arrest warrant as Glenn's residence. When they got to the house, Glenn's mother and grandmother said that Glenn was not there, but was probably "on his way home" to his grandfather's house.

The officers then went to the home of Glenn's grandparents, where Glenn had been residing for about two months. They knocked on the front door, and Glenn answered. The officers asked Glenn "if his name was Keith Glenn," and Glenn said that it was. The officers then arrested Glenn, handcuffed him, and read him his Miranda rights.

After Glenn's arrest, the officers and Glenn "went into the house." The officers escorted Glenn to the living room, where Glenn's grandfather was "walking around." The three detectives identified themselves as police officers, "asked the grandfather if he understood, and he shook his head yes."² Captain Williams then asked the grandfather if the officers could search the house. The grandfather again nodded yes. Captain Williams also asked if Glenn paid rent to stay in the home, and the grandfather shook his head no.

Detective Ferguson then began to search the house. Glenn stayed in the living room while Ferguson conducted the search. At no time did the officers ask Glenn for consent to search his rooms or their contents, nor did Glenn object to the search.

Ferguson first searched the room closest to the living room, which Glenn had indicated was the "room he slept in." In that room, Ferguson found three mattresses propped up against the wall and "various boxes of women's clothing." Having found no evidence of the crime, Ferguson left the room and looked down the hallway. Glenn then pointed down the hall and stated, "Oh yeah, I sleep in that bedroom as well."

Ferguson entered the second room and searched it. He found a pair of pants on the bed, men's clothing hanging in the closet, a cell phone lying on the closet floor, and a backpack on the bedroom floor. The backpack was closed, and Ferguson had to "manipulate it open" to see its contents. Inside the backpack, Ferguson found $45 in cash, a wallet containing Glenn's identification, and another cell phone, which matched the description of the phone stolen during the armed robbery.³ At this point, Captain Williams "escorted" Glenn from the living room to the door of the bedroom. Glenn identified the backpack as belonging to him and he claimed to have found the phone lying on the ground in Colonial Heights.

Glenn was taken to the police station, where he gave a full confession, both written and verbal. A grand jury subsequently indicted Glenn for robbery, conspiracy to commit robbery, and use of a firearm in the commission of a felony. Before trial, however, Glenn filed two pretrial motions to suppress. In one motion, Glenn requested that the trial court "suppress any and all statements made by the defendant ... to all law enforcement agencies," arguing that the statements were obtained after he invoked his right to remain silent and, thus, in violation of his Fifth Amendment rights. In the second motion, Glenn requested that the trial court suppress "all evidence obtained and/or recovered by the Commonwealth incident to his arrest at his residence on the grounds that the search is in violation of the Fourth Amendment of the Constitution of the United States, [and] Article I, Section 10 of the Constitution of Virginia...."

The trial court, by written order dated June 25, 2004, denied both motions to suppress, reasoning, as pertinent to this appeal, that:

Mr. Brooks, the defendant's grandfather and owner of the residence, consented to the search of the property without reservation or qualification. Mr. Brooks also indicated to the police that the defendant did not pay rent. The rooms that were searched were open to view and contained a mixture of personal property, which the police subsequently learned belonged to the defendant and his grandmother, Rose Brooks. The defendant was present at the search, observed the search, and took no action to countermand his grandfather's permission by advising the police that he objected to the search of that portion of the residence he later claimed he occupied.

After the trial court denied the motions to suppress, Glenn entered a conditional guilty plea to the counts of robbery and conspiracy to commit robbery.⁴ Glenn then filed a petition for appeal to this Court, assigning as error both that the trial court erred in denying the motion to suppress the physical evidence recovered during the search of the residence and that the trial court erred in denying the motion to suppress his statements to the police. This Court granted the petition for appeal as to the motion to suppress the physical evidence, and denied the petition for appeal as to the motion to suppress Glenn's statements to the police. Thus, the sole issue presented on appeal is whether the trial court erred in denying Glenn's motion to suppress the physical evidence found in Glenn's bedroom.

II. MERITS OF THE APPEAL

When reviewing a trial court's denial of a motion to suppress, "we are bound by the trial court's findings of historical fact unless `plainly wrong' or without evidence to support them." McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). "However, we consider de novo whether those facts implicate the Fourth Amendment and, if so, whether the officers unlawfully infringed upon an area protected by the Fourth Amendment." Shaver v. Commonwealth, 30 Va.App. 789, 794-95, 520 S.E.2d 393, 396 (1999).

Under the circumstances of this case, we must consider two separate, but related, questions. First, we must decide whether the grandfather's consent authorized the police officers to search Glenn's bedroom. Second, we must also consider whether the grandfather's consent authorized the police officers to open Glenn's backpack. For the reasons that follow, we hold that, although the grandfather's consent to search the bedroom was valid, that consent did not authorize the officers to open a closed container found in that bedroom. Accordingly, we hold that the trial court erred in denying the motion to suppress.

A. Validity of the Third-Party Consent as to the Bedroom

The Fourth Amendment protects "the right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. However, although the Fourth Amendment "ordinarily prohibit[s] the warrantless entry of a person's house as unreasonable per se, one `jealously and carefully drawn' exception recognizes the validity of searches [conducted pursuant to] the voluntary consent of an individual possessing authority" to give that consent. Georgia v. Randolph, ___ U.S. ___, ___, 126 S.Ct. 1515, 1520, 164 L.Ed.2d 208 (2006) (quoting Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1258, 2 L.Ed.2d 1514 (1958)) (citations omitted).⁵ Individuals who possess the authority to consent to the search of a premises include "a fellow occupant who shares common authority over property." Id. (citing United States v. Matlock, 415 U.S. 164, 170, 94 S.Ct. 988, 992-93, 39 L.Ed.2d 242 (1974)). Similarly, "the exception for consent extends even to entries and searches with the permission of a co-occupant whom the police reasonably, but erroneously, believe to possess shared authority as an occupant." Id. (ci...