John Emory Redding v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: May 23, 2000
• Docket: 0542991
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Frank and Senior Judge Hodges Argued at Chesapeake, Virginia

JOHN EMORY REDDING MEMORANDUM OPINION * BY v. Record No. 0542-99-1 JUDGE RICHARD S. BRAY MAY 23, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH A. Bonwill Shockley, Judge

Edward W. Webb, Assistant Public Defender, for appellant.

Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

John Emory Redding (defendant) appeals his convictions for

possession of marijuana and cocaine. He complains that the

trial court erroneously denied his motion to suppress evidence

discovered by police during the consensual search of a

residence. Finding no error, we affirm the trial court.

The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

On appeal from a motion to suppress evidence, "we consider

the entire record," Patterson v. Commonwealth, 17 Va. App. 644,

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. 648, 440 S.E.2d 412, 415 (1994), viewing the evidence in the

light most favorable to the prevailing party below, the

Commonwealth in this instance. See Shaver v. Commonwealth, 30

Va. App. 789, 794, 520 S.E.2d 393, 396 (1999). "When reviewing

a Fourth Amendment suppression ruling, 'we are bound by the

trial court's findings of historical fact unless "plainly wrong"

or without evidence to support them.' 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." Id. at 794-95, 520 S.E.2d

at 396 (citations omitted).

I.

During the investigation of several burglaries, a "suspect"

advised police that "some of the stolen property" was located in

"her room" at her mother's home. Accordingly, Virginia Beach

Police Sergeant J.B. Spry "responded" to the residence and was

received by the suspect's mother, the "homeowner." Spry

"explained . . . that [her] daughter was involved in these

burglaries[,] [had] indicated that . . . some of the property

was in her [bed]room and asked [the mother] for permission to

search the room in the house and recover stolen property." The

mother consented and "showed [Spry] to [the] bedroom . . .

occupied by her daughter." The record does not disclose the age

of the daughter, the circumstances of her occupancy, or her

whereabouts.

- 2 - Spry found the room "in disarray," with "property and

clothing all over the place." While Spry was "looking around"

"trying to figure out where to start," defendant, fully clothed,

entered the room, identified himself as John Redding and

"attempted to remove a pair of pants that was in a pile of

clothing." The record is silent with respect to defendant's

relationship to the premises generally and to the room, together

with its contents, in particular.

Spry explained his "reason for being there" and advised

defendant that he "wasn't going to allow him to remove anything

that could possibly be part of the burglary." Defendant then

"grabbed a handful of papers" "protruding from [a] pocket" in

the pants, which Spry "took away from him immediately," examined

and returned to defendant. When defendant declared that "he

wanted his pants," Spry "advised . . . he could have his pants

just as soon as [Spry] ma[de] sure that there was nothing in the

pants that would have been part of the burglary." 1 A search of

the trousers by Spry revealed the offending marijuana and

cocaine. The record provides no details of the circumstances

that facilitated the actual search.

Defendant does not dispute that the suspect's mother was

the owner of the home, consented to the search of the residence,

and escorted police to her daughter's room. Nevertheless, he

1 Property stolen in the burglaries included "jewelry . . ., personal papers, checks – all different types of items."

- 3 - maintains that such consent did not authorize a search of the

trousers, absent his contemporaneous authorization.

II.

"The Fourth Amendment to the United States Constitution

protects 'the right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures.' These protections apply to people, not places[.]"

Johnson v. Commonwealth, 26 Va. App. 674, 682, 496 S.E.2d 143,

147 (1998). The

reasonableness requirement generally prohibits the warrantless entry of a person's home . . ., in which one has a reasonable expectation of privacy. "It does not apply, however, to situations in which voluntary consent has been obtained, either from the individual whose property is searched, or from a third party who possesses common authority over the premises."

Jones v. Commonwealth, 16 Va. App. 725, 727, 432 S.E.2d 517,

518-19 (1993) (quoting Illinois v. Rodriguez, 497 U.S. 177, 181

(1990) (citations omitted)).

Thus, "the consent of one who possesses common authority

over premises or effects is valid as against the absent,

nonconsenting person with whom that authority is shared."

United States v. Matlock, 415 U.S. 164, 170 (1974). However,

Matlock does not "suggest[] that the validity of a third party

consent is dependent upon the absence" of an accused sharing

authority over the premises and effects. Walls v. Commonwealth,

- 4 - 2 Va. App. 639, 651, 347 S.E.2d 175, 182 (1986). "[W]here the

defendant is present and not objecting, the police are not

thereby prevented from relying on a consent to search given by a

third party with sufficient authority." Id.; see Fogg v.

Commonwealth, 31 Va. App. 722, 727-28, 525 S.E.2d 596, 599

(2000) (despite objection by person with "shared possession and

control" of property, others with "'authority over the

premises'" may consent to search (citation omitted)).

Accordingly, defendant's initial contention that the

homeowner's consent, under the instant circumstances, was

insufficient to justify a search of the room and contents,

without further authority from him, is without merit.

Similarly, defendant's related argument that the search of the

pants was "illegal" because Spry "failed to honor . . .

defendant's refusal to consent" is incorrectly predicated upon

the necessity for such consent. Defendant does not argue and

the record does not reflect that he expressed to Spry an

objection to the search, rather, that he did not consent to it.

See id.

We acknowledge that circumstances may arise that trump

third party consent, requiring the additional consent of persons

having an array of diverse privacy interests in a premises or

related contents. However, we are unable to find such

circumstances on the instant record and expressly decline to

speculate upon such issues.

- 5 - Accordingly, we affirm the decision of the trial court.

Affirmed.

- 6 -