Parham v. Commonwealth
| Decision Date | 10 December 2019 |
| Docket Number | Record No. 1823-18-2 |
| Court | Virginia Court of Appeals |
| Parties | CHRISTINE FRANCIS PARHAM, A/K/A CHRISTINE FRANCIS MILLER v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges O'Brien, Malveaux and Senior Judge Clements
Argued at Richmond, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Lauren Whitley, Deputy Public Defender, for appellant.
Brittany A. Dunn-Pirio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Christine Francis Parham ("appellant") entered a conditional plea of nolo contendere to possession of a controlled substance, in violation of Code § 18.2-250.1 She argues that the trial court erred by denying her motion to suppress the evidence obtained from a warrantless search of her person because there was no evidence that she unequivocally and specifically consented to a search of her purse. For the reasons that follow, we hold that the evidence supports the trial court's denial of the motion to suppress and affirm appellant's conviction.
"Under familiar principles of appellate review, we will state 'the evidence in the light most favorable to the Commonwealth, the prevailing party in the trial court, and will accord the Commonwealth the benefit of all reasonable inferences fairly deducible from that evidence.'" Sidney v. Commonwealth, 280 Va. 517, 520 (2010) (quoting Murphy v. Commonwealth, 264 Va. 568, 570 (2002)).
So viewed, the evidence demonstrates that on December 14, 2017, Detective A.J. Johnson of the Richmond Police Department received a telephone call from a confidential informant. The informant told Johnson that a woman at the corner of 4th and Broad Streets was selling drugs out of her purse. The informant also provided Johnson with a detailed description of the woman's clothing and wig. Johnson and Detective Errol Fernandez went to the corner of 4th and Broad Streets where they saw a woman, appellant, who matched the informant's description "to a T."
The detectives approached appellant, who was carrying a purse. Johnson asked appellant if the detectives could speak with her, and she agreed. The detectives walked with her into a side street where Johnson advised appellant of her rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). At the suppression hearing, Johnson testified that he then told appellant a reliable source had informed him that she had drugs on her person and asked her "did she have anything illegal on her and could I check and she consented." When the Commonwealth's attorney asked Johnson to describe how appellant had consented, he replied, "With her words." Asked if he remembered appellant's words, Johnson stated,
Detective Fernandez witnessed Johnson's conversation with appellant. He testified at the suppression hearing that Johnson asked appellant "if she had anything illegal on her person and if she minded if we searched." Appellant responded, "Yes."
After Johnson's exchange with appellant, the detective searched her purse. There, he found pills inside a prescription bottle labelled "Paula Lively/Oxycodone-Acetaminophen." Johnson also found a Newport cigarette pack containing a substance he believed to be cocaine.
Appellant was arrested and indicted for possession of a controlled substance, in violation of Code § 18.2-250. Prior to trial, she filed a motion to suppress, arguing that her purse had been searched without a warrant and that the Commonwealth had not established that she had consented to the search.
At the suppression hearing, appellant noted Fernandez's testimony that she was asked whether she "had anything illegal on her" and "if she minded if [the detectives] searched." Appellant argued that when she said "yes," her statement was Further, appellant noted, Johnson had been unable to recall exactly how appellant had worded her alleged consent to the search.
The trial court found that appellant had "consent[ed] to [her] purse being searched" and denied the motion to suppress. The court stated that its ruling was based upon "the combined testimony of the [detectives], [and] the evidence that [was] presented before the [c]ourt."
Pursuant to a plea agreement, appellant entered a conditional plea of nolo contendere to possession of a controlled substance, reserving the right to appeal the denial of her motion tosuppress.2 The trial court accepted the agreement and appellant's plea and sentenced her to five years' incarceration with all five years suspended.
This appeal followed.
Appellant argues that the trial court erred by denying her motion to suppress the evidence obtained from the detectives' warrantless search, because there was no evidence that she unequivocally and specifically consented to the search of her purse.3
On appeal from a denial of a motion to suppress, " Curley v. Commonwealth, 295 Va. 616, 618-19 (2018) (quoting Evans v. Commonwealth, 290 Va. 277, 280 (2015)). It is the appellant's burden to show that when the evidence is viewed in this manner, the trial court committed reversible error by denying the motion. Hairston v. Commonwealth, 67 Va. App. 552, 560 (2017).
"The question of whether a search . . . violated the Fourth Amendment is 'a mixed question of law and fact that we review de novo' on appeal." Id. (quoting Harris v. Commonwealth, 276 Va. 689, 694 (2008)). We are "'bound by the trial court's factual findings unless those findings are plainly wrong or unsupported by the evidence[,]'" but we "independently review[] the trial court's application of relevant legal principles." Id. at 560, 561 (quoting Malbrough v. Commonwealth, 275 Va. 163, 168 (2008)). "As in any Fourth Amendment review, the touchstone of our analysis is the reasonableness of the search under the circumstances." Glenn v. Commonwealth, 275 Va. 123, 130 (2008).
"As a general rule, 'a search authorized by consent is wholly valid'" under the Fourth Amendment because "'[w]here consent is freely and voluntarily given, probable cause and a search warrant are not required.'" Hawkins v. Commonwealth, 65 Va. App. 101, 107 (2015) (); see also Brooks v. Commonwealth, 282 Va. 90, 95 (2011) . Such consent "must be unequivocal, specific and intelligently given" and "is not lightly to be inferred," although it may be demonstrated by conduct alone. Hawkins, 65 Va. App. at 107 (quoting Jean-Laurent v. Commonwealth, 34 Va. App. 74, 78 (2000)). "The question of whether a defendant gave an officer consent to search 'is a factual question to be determined by the trier of fact,' receiving great deference from this Court." Royal v. Commonwealth, 37 Va. App. 360, 366 (2002) (quoting Jean-Laurent, 34 Va. App. at 79). In making such a determination, the trier of fact considers "the totality of the circumstances, and . . .reverse[s] a trial court's decision regarding the presence of consent only when it is plainly wrong." Hawkins, 65 Va. App. at 107 (quoting Jean-Laurent, 34 Va. App. at 79).
Appellant first argues that there was no evidence that she unequivocally consented to the detectives' search. She contends that the Commonwealth relied solely upon a claim that appellant verbally consented to the search, but that each detective's version of her alleged consent was equivocal. Appellant notes Johnson's testimony that when he asked her if she had anything illegal on her and could he "check," appellant consented "with her words," but Johnson could not remember whether she replied "yes" or "okay." Appellant also notes Fernandez's testimony that she replied "[y]es" when asked if she had anything illegal on her and "if she minded if [the detectives] searched." She contends that her response could have constituted "saying yes to something illegal, yes to the search, or yes because she was confused." Consequently, appellant argues, neither detective's account reflects her unequivocal verbal consent to a search, and thus the trial court's finding of consent was plainly wrong.
We are unpersuaded by appellant's argument, which views each detective's testimony in isolation and fails to consider the totality of the circumstances in the light most favorable to the Commonwealth. Here, the evidence demonstrates that detectives approached appellant and asked her if she would speak with them, and she agreed. Appellant was read her Miranda rights before Johnson told her that he had been informed that she had drugs on her person. In that context, Johnson then asked appellant if she did have anything illegal on her, and could he check. Although Johnson could not remember exactly how appellant responded, he did recall that she replied in the affirmative and stated either "yes" or "okay." Fernandez witnessed this exchange and testified that appellant stated "yes" in response to Johnson. Johnson's testimony made clear that he understood appellant's response to mean that she consented to a "check" or search. The detectives then searched appellant's purse, and neither Johnson nor Fernandez indicated thatappellant objected. The trial court, which had the opportunity to see...
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