Glenn v. Com.

PRESENT: All the Justices

KEITH I. GLENN
OPINION BY
v. Record Number 070796 JUSTICE G. STEVEN AGEE
January 11, 2008
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

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

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

1
Glenn presents no challenge to the grandfather’s capacity
to knowingly and intelligently grant voluntary consent for the
search.

2
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

3
“[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 in it.” Id. at 423, 642 S.E.2d at 286 (emphasis in

4
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 (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. ANAYLSIS

5
 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 (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 (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 (2001); Illinois v. Rodriguez, 497 U.S. 177,

185 (1990); Hill v. California, 401 U.S. 797, 803-04 (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

6
 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 (1974); see also

Schneckloth, 412 U.S. at 245; Frazier v. Cupp, 394 U.S. 731, 740

(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 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

2
See United States v. Block, 590 F.2d 535 (4th Cir. 1978),
in which the United States Court of Appeals for the Fourth
Circuit determined that a mother "clearly had authority to
permit inspection" of her son's bedroom because the son was "a
mere guest occupant of the room in his mother's home, and the
mother had the normal free access that heads of household
commonly exercise in respect of the rooms of family member
occupants." Id. at 541.

7
authorize the search of his house, did that authority extend to

closed containers located therein?

Although involving the search of an automobile and not a

home, the Supreme Court enunciated basic Fourth Amendment

principles applicable to the search of a closed container in the

seminal case of United States v. Ross, 456 U.S. 798 (1982):

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. . . . When a legitimate search
is under way . . . nice distinctions between closets,
drawers, and containers, in the case of a home . . .
must give way to the interest in the prompt and
efficient completion of the task at hand.

Id. at 820-21.

In Rodriguez, the Supreme Court upheld the validity of the

search of an apartment when the officers incorrectly executed

the search but acted with objective reasonableness based on the

facts known to them at the time of the search.

[I]n order to satisfy the reasonableness requirement
of the Fourth Amendment, what is generally demanded of
the many factual determinations that must regularly be
made by . . . the police officer conducting a search
or seizure under one of the exceptions to the warrant
requirement [] is not that they always be correct, but
that they always be reasonable.

. . . .

As with other factual determinations bearing upon
search and seizure, determination of consent to enter
must be judged against an objective standard: would
the facts available to the officer at the moment . . .

8
 warrant a man of reasonable caution in the belief that
the consenting party had authority over the premises?

Rodriguez, 497 U.S. at 185, 188 (quoting Terry v. Ohio, 392 U.S.

1, 21-22 (1968) (internal quotation marks omitted).

Glenn’s argument on appeal is essentially that any

conclusion by the police that Brooks had the authority to

consent to searching the backpack was objectively unreasonable

as a matter of law. This is so, Glenn argues, because the

police had no specific or direct knowledge, at the time of the

search, that the backpack either belonged to Brooks or that

Brooks had access to it. Glenn contends this is particularly

relevant because he told the police that he used the room in

which they found the backpack. In Glenn’s view, even if Brooks

did voluntarily consent to a search which included the backpack,

that consent was a nullity because Brooks had no authority over

that item.

Glenn’s argument points to the distinction, recognized by

the Court of Appeals, that a person authorizing a search by

consent can be either a person with actual or apparent authority

over the object of the search.

A third party has actual authority to consent to
a search if that third party has either (1) mutual use
of the property by virtue of joint access, or (2)
control for most purposes. Even where actual
authority is lacking, however, a third party has
apparent authority to consent to a search when an
officer reasonably, even if erroneously, believes the
third party possesses authority to consent.

9
 Whether apparent authority exists is an
objective, totality-of-the-circumstances inquiry into
whether the facts available to the officers at the
time they commenced the search would lead a reasonable
officer to believe the third party had authority to
consent to the search.

United States v. Andrus, 483 F.3d 711, 716-17 (10th Cir. 2007)

(internal quotation marks and citations omitted). Had Brooks

been the only occupant of his residence, this distinction would

be irrelevant. However, because there were multiple occupants,

each with his or her own potentially distinct privacy interests,

the question of authority is directly relevant to the

reasonableness of the police search.

As the evidence at trial reflected, Brooks did not, in

fact, have actual authority over the backpack. But that

determination of a lack of actual authority after the search is

not dispositive of the reasonableness inquiry. If the

consenting party had the apparent authority to consent to the

search, as it appeared to an objectively reasonable police

officer, then the consent is valid for Fourth Amendment purposes

as to another holder of a privacy interest in the object to be

searched. Andrus, 483 F.3d at 722. In other words, if Brooks

reasonably appeared to have the authority to consent to a search

of the backpack, that apparent authority is sufficient to

vitiate any Fourth Amendment claim by Glenn.

10
 Glenn is correct that the police did not affirmatively know

that Brooks owned or used the backpack at the time of the

search. On the other hand, nothing in the record shows the

police knew that Brooks did not own or use the backpack. Had

the backpack borne Glenn’s name or other identifying marks, or

had the backpack been locked or secreted among possessions which

were exclusively Glenn’s, there would likely be few

circumstances where an objectively reasonable police officer

could conclude Brooks had the authority to consent to a search

of the bag. However, none of those circumstances exist in this

case. In fact, the opposite is true. The backpack bore no

indicia of ownership, evidenced no limitations on access, had no

characteristics that reflected a use by reason of age or gender,

and was located in a place open to all occupants of the house.

The circumstance facing the police officer who found the

backpack in a room to which he was directed by Glenn, without

any objection to a search of its contents, was whether Brooks’

consent to search reasonably included the bag. We hold it was

objectively reasonable for the police officer to conclude

Brooks’ consent to search included the authority to consent to a

search of the backpack.

In reaching our decision, we are cognizant that some

ambiguity attended the ownership and ability to access the

backpack as the police officer seized and searched it. As noted

11
above, it bore no identifying indicia and could as logically

have belonged to Brooks as it could to Glenn. The backpack was

located in a room that the police knew Glenn used, but which was

also open to the grandparents. The fact that evidence at the

suppression hearing reflected that the backpack belonged to

Glenn has no effect on determining the reasonableness of the

grandfather’s apparent authority for the search at the time the

police first found the backpack as none of those facts were

known by the police at the time of the search.

The question becomes whether the latent ambiguity about who

could access the backpack renders a search unreasonable until

all ambiguity is removed. We find the Court of Appeals’

reference to the reasoning of the United States Court of Appeals

for the Seventh Circuit in United States v. Melgar, 227 F.3d

1038 (7th Cir. 2000), convincing. That court’s analysis is

instructive as that case also involved the authority to search a

closed container belonging to a person other than the one who

authorized a general search of the premises where the container

was located.

In Melgar, police obtained consent from Rita Velasquez to

search the hotel room she rented. At the time of the search,

several other persons were in the room, including the defendant,

Ms. Melgar. Police found and searched a purse in the room which

“had no personalized markings on the outside.” The contents

12
showed the purse belonged to Melgar and contained incriminating

items that led to her arrest. Melgar claimed her Fourth

Amendment rights were violated because Velasquez had no

authority to consent to a search of her purse. Id. at 1040.

Even though the police did not affirmatively know the purse

belonged to Melgar at the time of the search, the court

concluded it was not objectively unreasonable for the police to

conclude that Velasquez, the renter of the room, had the

authority to authorize not only a search of the room, but of the

unmarked purse.

[T]he real question for closed container searches is
which way the risk of uncertainty should run. 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 (Melgar’s view), or is it permissible if
the police do not have reliable information that the
container is not under the authorizer’s control. We
are not aware of any case that has taken the strict
view represented by the first of these possibilities.

. . . .

[W]e conclude that the scope of [the renter’s] consent
encompassed [a] right to look into this container.
A contrary rule would impose an impossible burden
on the police. It would mean that they could never
search closed containers within a dwelling (including
hotel rooms) without asking the person whose consent
is being given ex ante about every item they might
encounter. We note that there is no possibility of
such a rule for automobile searches, because the
Supreme Court has already authorized this type of
container search in that context. Our conclusion here
rests in part on the discussion in Houghton that
indicates that the container rule rests on general

13
 principles of Fourth Amendment law that do not depend
on the special attributes of automobile searches.

Id. at 1041 (citing Ross, 456 U.S. at 820-821 and Wyoming v.

Houghton, 526 U.S. 295, 302 (1999)) (emphasis in original).

The rationale in Melgar reflects a correct balancing of the

competing interests involved in determining the reasonableness

of a search in a Fourth Amendment context. Like the hotel room

in Melgar, there was a valid consent to search the Brooks’ house

in the case at bar. It was as objectively reasonable for the

police to believe Velasquez had the authority to authorize a

search of the unmarked purse in her room as it was for the

police to believe Brooks had the authority to consent to a

search of the unmarked backpack in his house. The police had no

basis to believe that the backpack did not belong to Brooks or

that he did not use it, just as they had no basis to believe the

purse did not belong to Velasquez. Contrary to Glenn’s

implication that the police should infer the backpack was the

possession of the younger person, nothing in the record as of

the time of the search would support that inference. To the

contrary, it would be common knowledge that the elderly, such as

the disabled grandfather, utilize backpacks or similar devices

on their wheelchairs, walkers, or otherwise as an aid for their

14
infirmities.3 It was no less likely for the police to reasonably

conclude the unidentified, unlocked, backpack was as open to

Brooks in his own house as it was to Glenn, the houseguest. As

did the court in Melgar, we conclude it was objectively

reasonable for the police to conclude that the person consenting

to the search of the premises, Brooks, appeared to have the

authority to authorize the search of the backpack within the

rooms open to him in his own home.

Our conclusion is further bolstered by the recent decision

of the United States Supreme Court in Georgia v. Randolph, 547

U.S. 103 (2006). While Randolph did not involve the search of a

closed container, that case established important Fourth

Amendment parameters in determining the reasonableness of

consent to search where more than one person appears to have

3
Glenn’s citation to the decision of the Indiana Supreme
Court in Krise v. State, 746 N.E.2d 957 (2001), does not support
his position. In that case, a boyfriend and girlfriend occupied
the same apartment. Police removed the girlfriend on an
unrelated warrant and obtained consent from the boyfriend to
search the apartment. During the search, the police discovered
a purse and seized contraband in it and charged the girlfriend
with its possession. The Indiana Supreme Court correctly held
police could not have reasonably believed the boyfriend had the
authority to consent to a search of the girlfriend’s purse. “We
also find that the [prosecution] failed to justify the search on
the basis of apparent authority. At the time [the officer]
decided to search Krise's purse, he knew that the handbag was a
woman's purse and that Krise was the only woman living in the
house.” Id. at 971.
No such identifying factor is present in the case at bar to
affect the determination of the reasonableness of the appearance
of Brooks’ authority to consent to a search of the backpack.

15
some authority or reasonable expectation of privacy in the

premises to be searched. While Matlock had established that a

co-occupant could grant voluntary consent to a search of

premises over which she had material rights with an absent co-

occupant, Randolph verified such a consent was ineffective if

the other co-occupant was indeed present and objected. The

Supreme Court then further explained that if the search is

otherwise objectively reasonable, a potential objector who

raises no objection to the search when he has the opportunity to

do so “loses out.”

[W]e have to admit that we are drawing a fine line; if
a potential defendant with self-interest in objecting
is in fact at the door and objects, the co-tenant’s
permission does not suffice for a reasonable search,
whereas the potential objector, nearby but not invited
to take part in the threshold colloquy, loses out.
This is the line we draw, and we think the
formalism is justified. . . . [W]e think it would
needlessly limit the capacity of the police to respond
to ostensibly legitimate opportunities in the field if
we were to hold that reasonableness required the
police to take affirmative steps to find a potentially
objecting co-tenant before acting on the permission
they had already received.

Id. at 121-22.

The Supreme Court’s Randolph analysis aptly applies on the

facts of this case. Glenn could have objected to the search of

either of the bedrooms, but failed to do so even though he was

in conversation with the police officers before and during the

search. In fact, it was Glenn who directed the police to the

16
bedroom in which the backpack was located, but without any hint

of an objection to its being searched.4 Insomuch as Brooks’

apparent authority to consent to the search was otherwise

objectively reasonable, Glenn “loses out” due to his failure to

make any objection despite ample opportunity to do so.5

IV. CONCLUSION

The facts available to the officers at the time of the

search of the Brooks house were sufficient to lead an

objectively reasonable police officer to believe that Brooks had

authority to consent to a search of the backpack. Accordingly,

there was no error in denying Glenn’s motion to suppress.

We will therefore affirm the judgment of the Court of

Appeals.

Affirmed.

4
Cf. United States v. Jones, 356 F.3d 529, 534-35 (4th Cir.
2004) (“[T]he scope of a consent search is not limited only to
those areas or items for which specific verbal permission is
granted. Consent may be supplied by non-verbal conduct as well.
. . . [The defendant] confirmed the propriety of the search by
not objecting . . . .”).
5
Glenn’s citation to Minnesota v. Olson, 495 U.S. 91
(1990), is without merit. Olson stands for the proposition that
a houseguest, like Glenn, has standing to raise a Fourth
Amendment challenge to the search of his property within the
premises where he has guest privileges. Id. at 100. Glenn’s
standing is not at issue in this case; he clearly has standing
to raise the Fourth Amendment issue he argues, notwithstanding
any potential waiver of that argument under Randolph. However,
Glenn’s standing has no relevance to a decision on the merits as
to whether it was objectively reasonable to conclude Brooks had
apparent authority to consent to a search of the backpack.

17