Glenn v. Com., Record No. 070796.

• Docket Nº: Record No. 070796.
• Citation: 654 S.E.2d 910, 275 Va. 123
• Case Date: January 11, 2008
• Court: Supreme Court of Virginia

654 S.E.2d 910 275 Va. 123 Keith I. GLENN
v.
COMMONWEALTH of Virginia. Record No. 070796. Supreme Court of Virginia. January 11, 2008.

[654 S.E.2d 911]

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

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

Present: All the Justices.

OPINION BY Justice G. STEVEN AGEE.

Keith I. Glenn appeals from the judgment of the Court of Appeals of Virginia, which affirmed his convictions for robbery and conspiracy to commit robbery in violation of Code §§ 18.2-58 and 18.2-22. On appeal, Glenn contends the denial of his motion to suppress certain evidence obtained in a search of his grandfather's house was reversible error. For the reasons set forth below, we will affirm the judgment of the Court of Appeals.

I. RELEVANT FACTS AND PROCEEDINGS BELOW

On January 8, 2004, a magistrate issued a warrant for Glenn's arrest in relation to a robbery in the City of Colonial Heights. The following day, officers of the Colonial Heights Police Department and the Sussex County Sheriff's Office attempted to execute the warrant at the address listed on the warrant. The occupants of the residence at that address directed the officers to another location, the home of Glenn's grandparents. Responding to the officers' knock, Glenn answered

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the front door of his grandparents' home and was immediately arrested and advised of his Miranda rights. The officers then entered the living room and asked Glenn's grandfather, Ernest Brooks, if he owned the home. Brooks, unable to speak because of previous strokes, nodded in affirmation. The officers similarly determined from Brooks that Glenn was living in the home but did not pay rent. After obtaining this information, the officers asked Brooks for permission to search the house, which Brooks again granted with a nod of his head.¹ The officers did not ask for Glenn's consent, but he was detained in the living room with Brooks during the officers' conversation and the subsequent search.

After Brooks consented to the search of his house, Glenn identified to the officers the bedroom where Glenn slept. The door to that room was open and unlocked. An officer searched the room and found, among other things, three mattresses propped against a wall and boxes of women's clothing, but no evidence relating to the robbery. As the officer left the room, he looked down the hallway, where a second bedroom was located. Glenn then stated, "Oh, yeah, I sleep in that bedroom as well." The officer then entered the second bedroom, which was also open and unlocked, and saw a pair of pants on the bed and a closed backpack on the floor. The backpack had no outward indicia of ownership such as a nametag or monogram and had no locking device.

The officer opened the backpack and discovered the robbery victim's cellular telephone and a wallet containing Glenn's identification and $45. Officers then escorted Glenn to the second bedroom where he identified the backpack as his own and volunteered that he found the cellular telephone on the ground in Colonial Heights. Glenn remained "calm" throughout the search and did not protest the search of the rooms or any containers in those rooms.

Prior to trial in the Circuit Court of the City of Colonial Heights, Glenn filed a motion to suppress the evidence found in the backpack, contending that neither his "grandfather nor any third party is capable to assent and/or waive" Glenn's Fourth Amendment rights regarding his personal property in a closed container in his bedroom. Glenn's grandmother testified at the hearing that Glenn lived in the home without paying rent, but that Glenn had keys to the home. She further testified that she could enter the two rooms searched at any time and that the women's clothes found in Glenn's bedroom belonged to her. Glenn's grandmother also testified that the backpack belonged exclusively to Glenn and was never used by her or Brooks.

The circuit court found that Brooks consented to the search of his house "without reservation or qualification" and that "[Glenn] 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." The circuit court then denied the motion to suppress. Glenn subsequently entered a conditional guilty plea pursuant to Code § 19.2-254, reserving his right to appeal the issues raised in his suppression motion. The circuit court accepted the plea, found Glenn guilty, and sentenced him to seven years' active incarceration.

On appeal in the Court of Appeals, a divided panel of that court reversed his convictions, holding that the circuit court erred by not granting Glenn's motion to suppress. Glenn v. Commonwealth, 48 Va.App. 556, 563, 633 S.E.2d 205, 209 (2006). However, on rehearing en banc, Glenn's convictions were affirmed. Glenn v. Commonwealth, 49 Va. App. 413, 416, 642 S.E.2d 282, 283 (2007). The court held that "the police officers had reasonable grounds to believe that the grandfather's consent to search his house included permission to open a backpack found on the floor in one of the rooms." Id. at 422, 642 S.E.2d at 286. This conclusion was based in part on the fact that "[n]othing about the backpack itself put the officers on notice that Glenn claimed an exclusive privacy interest

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in it." Id. at 423, 642 S.E.2d at 286 (emphasis in original). Although the police had no "positive knowledge that the closed container" was Brooks', they did not have "reliable information that the container" was not under Brooks' control. Id. at 420, 642 S.E.2d at 285. The Court of Appeals also found support for its conclusion in the United States Supreme Court's decision in Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), because Glenn was present at the time of the search, but failed to object. We awarded Glenn this appeal.

II. STANDARD OF REVIEW

Appellate review of a trial court's denial of a defendant's motion to suppress is de novo when the defendant claims that the evidence sought to be suppressed was seized in violation of the Fourth Amendment. Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002). In performing this review, we consider the evidence "in the light most favorable to the Commonwealth," McCain v. Commonwealth, 261 Va. 483, 490, 545 S.E.2d 541, 545 (2001), and "accord the Commonwealth the benefit of all inferences fairly deducible from the evidence." Riner v. Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004); see also Burns v. Commonwealth, 261 Va. 307, 313-14, 541 S.E.2d 872, 877-78 (2001). The defendant bears the burden of establishing that the denial of his suppression motion was reversible error. Murphy, 264 Va. at 573, 570 S.E.2d at 838.

III. ANALYSIS

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Warrantless searches and seizures in a person's home are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). However, courts recognize exceptions to this general rule in several circumstances, including when a party voluntarily consents to the search. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ("It is . . . well settled that one of the specifically established exceptions to the requirements of . . . a warrant and probable cause is a search that is conducted pursuant to consent."). As in any Fourth Amendment review, the touchstone of our analysis is the reasonableness of the search under the circumstances. E.g., United States v. Knights, 534 U.S. 112, 118-19, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001); Illinois v. Rodriguez, 497 U.S. 177, 185, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); Hill v. California, 401 U.S. 797, 803-04, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971)).

Depending on the circumstances, a search may be deemed reasonable when conducted pursuant to voluntary consent offered not by the defendant himself but by a third party who shares access to the premises or object being searched with the defendant.

The authority which justifies the third-party consent . . . rests . . . on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

United States v. Matlock, 415 U.S. 164, 171 n. 7, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); see also Schneckloth, 412 U.S. at 245, 93 S.Ct. 2041; Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969).

Brooks, as the owner of the home, possessed the authority to consent to a search of his house, including a search of the rooms used by Glenn, a houseguest. On appeal, Glenn does not challenge Brooks' authority to consent to a search of the entire house, including the room in which the backpack was located.² Rather, Glenn contends the Court of Appeals and circuit court erred in

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denying the motion to suppress because the third party, Brooks, had no authority to give consent to a search of a closed container of Glenn's personal property. As the search of the fixed premises, the home, was proper, the issue before us is narrowed to whether there was a constitutionally valid consent for the search of a closed container within that house that the evidence later established belonged to Glenn rather than his grandfather. In other words, regardless of Brooks' authority to authorize the search of his house, did that authority extend to...