COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Bray
Argued at Richmond, Virginia
VANCE CARL ROBINSON
OPINION BY
v. Record No. 2183-98-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
FEBRUARY 8, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Ernest P. Gates, Judge Designate
Esther J. Windmueller for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Vance Carl Robinson (appellant) entered a conditional
guilty plea to possession of cocaine, in violation of Code
§ 18.2-250. He contends the trial court erred by denying his
motion to suppress evidence obtained during a warrantless search
of his residence when the police, escorting a known trespasser,
entered his apartment to retrieve the trespasser's jacket. For
the following reasons, we reverse and remand.
I. FACTUAL BACKGROUND
The evidence established that Officer Ronald May (May)
responded to a report of a trespass in progress at the Shockoe
Hill Apartments in the City of Richmond. May knew that the
trespasser, identified as April Brown (Brown), had previously
been barred from the apartment complex. As he arrived at the
scene, May saw Brown "[c]oming from [appellant's] apartment"
wearing a shirt and a pair of shorts that were unbuttoned.
Brown saw May and ran. After she was apprehended in the front
of the building, Brown said "she was visiting Vance Robinson."
In the parking lot of the apartment complex, May placed
Brown under arrest. At that time, Brown stated she wanted to
"get her jacket" from Robinson's apartment. The officer
permitted Brown to retrieve her jacket and with two other
officers followed her to appellant's apartment. Officer May
testified as follows:
Q. And did there come a time where you
entered into Mr. Robinson's apartment?
A. Yes, I did.
Q. And who opened the door?
A. Ms. Brown.
Q. And where were you?
A. Right behind her?
Q. And did you step into the apartment?
A. Yes, I did.
Q. Did you knock on the door?
A. I didn't knock. She just went right in.
* * * * * * *
Q. . . . Did you ask anyone's permission to
enter that apartment?
A. No, ma'am.
Q. You knew it wasn't her apartment, right?
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A. Yes, I did know that.
Q. And you knew she wasn't even supposed to
be on that property in any way?
A. Correct.
Q. And you walked your whole full self into
the apartment; is that correct?
A. Yes, I did.
Prior to entering the apartment, the police knew that the
apartment did not belong to Brown and that she was banned from
the apartment complex by the management.
When the police first entered, they saw appellant "standing
in the kitchen area." May also saw a "crack pipe" in plain view
on a nearby table. The table was visible immediately upon
entering the front door of the apartment. As a result of seeing
the crack pipe, May asked appellant for permission to search the
apartment. Appellant cooperated with the police and signed a
consent form. As a result of the search, the officers seized a
plastic bag containing .038 grams of cocaine.
Prior to trial, appellant moved to suppress the evidence,
arguing that the warrantless entry into his apartment violated
the Fourth Amendment. In denying the motion, the trial court
stated:
I think this officer had a good faith
exception that he reasonably believed that
he had a right to go in and follow the lady
that took him in to get her coat. I think
he did what anybody would have done under
the circumstances and that he had apparent
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authority to go in. So he didn't violate
[appellant's] rights. I deny your motion to
suppress.
Pursuant to Code § 19.2-254, appellant entered a conditional
plea of guilty and appealed the denial of his suppression
motion.
II.
In considering the trial court's denial of a motion to
suppress, the burden is on appellant to show that the court's
ruling constituted reversible error. See McGee v. Commonwealth,
25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc). In
such cases, we view the evidence in the light most favorable to
the Commonwealth, the party prevailing below. See Greene v.
Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138, 139 (1994).
Ultimate questions of reasonable suspicion and probable cause
involve questions of both law and fact and are reviewed de novo
on appeal. See McGee, 25 Va. App. at 197, 487 S.E.2d at 261.
We are bound, however, by the trial court's findings of
historical fact "unless 'plainly wrong' or without evidence to
support them and we give due weight to the inferences drawn from
those facts by resident judges and local law enforcement
officers." Id. at 198, 487 S.E.2d at 261.
A. Warrantless Entry
The Fourth Amendment protects the "right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures . . . ." U.S. Const. amd.
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IV. By its explicit terms, the Fourth Amendment "protects the
individual's privacy in a variety of settings. In none is the
zone of privacy more clearly defined than when bounded by the
unambiguous physical dimensions of an individual's home . . . ."
Payton v. New York, 445 U.S. 573, 589 (1980). "[P]hysical entry
of the home is the chief evil against which the wording of the
Fourth Amendment is directed," United States v. United States
District Court for E.D. Michigan, 407 U.S. 297, 313 (1972), and
"[t]he Fourth Amendment embodies [the] centuries-old principle
of respect for the privacy of the home[.]" Wilson v. Layne, 119
S. Ct. 1692, 1697 (1999). Thus, under well-established Fourth
Amendment jurisprudence, "searches . . . inside a home without a
warrant are presumptively unreasonable." Payton, 445 U.S. at
586 (citations omitted).
"Although the Fourth Amendment permits law enforcement
officers to make warrantless arrests in public places upon
probable cause, warrantless entries into a suspect's home in
order to arrest a suspect violate the Fourth Amendment unless
justified by exigent circumstances or consent." Jefferson v.
Commonwealth, 27 Va. App. 1, 14, 497 S.E.2d 474, 480 (1998)
(citations omitted). Because warrantless entries are presumed
invalid, the Commonwealth has a heavy burden to justify the
warrantless entry. See Jones v. Commonwealth, 29 Va. App. 363,
369, 512 S.E.2d 165, 167 (1999). "Unless an exception is shown
by the evidence, . . . the threshold of one's home may not be
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crossed without a warrant." Id. at 368, 512 S.E.2d at 167
(citing Payton, 445 U.S. at 590). See Flippo v. West Virginia,
120 S. Ct. 7, 8 (1999) (per curiam) ("A warrantless search by
the police is invalid unless it falls within one of the narrow
and well-delineated exceptions to the warrant requirement
. . . .").
B. Apparent Authority to Consent
The Commonwealth concedes that when May made his
warrantless entry into appellant's apartment, he had no probable
cause for the entry and did not confront exigent circumstances.
The Commonwealth also agrees that this case does not involve the
"hot pursuit" of a fleeing felon. Rather, the Commonwealth
first contends that the warrantless entry into appellant's
apartment was valid because the officers' actions were based
upon the reasonable but mistaken belief that Brown had "apparent
authority" to provide consent. Thus, the narrow issue presented
is whether it was reasonable for the police to have believed
that Brown, a known trespasser already in police custody, had
apparent authority to enter appellant's apartment and take the
police with her.
We have held that the reasonableness requirement, which
prohibits the warrantless entry of a person's residence, "does
not apply . . . 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
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over the premises." Jones v. Commonwealth, 16 Va. App. 725,
727, 432 S.E.2d 517, 519 (1993) (citing Illinois v. Rodriquez,
497 U.S. 177, 181 (1990)). Even if the third party does not
have authority to consent to the warrantless entry, "apparent
authority may be sufficient if the facts surrounding the
situation would have led a reasonable officer to conclude that
the person providing consent had the requisite authority." Id.
at 727-28, 432 S.E.2d at 519 (citing Rodriguez, 497 U.S. at
186-88; Caldwell v. Commonwealth, 15 Va. App. 540, 542, 425
S.E.2d 534, 535-36 (1993)).
In Rodriguez, 497 U.S. 177, the United States Supreme Court
considered "[w]hether a warrantless entry is valid when based
upon the consent of a third party whom the police, at the time
of entry, reasonably believe to possess common authority over
the premises, but who in fact does not do so." Id. at 179. The
Court noted that common authority rests "'on mutual use of the
property by persons generally having joint access or control for
most purposes . . . .'" Id. at 181 (quoting United States v.
Matlock, 415 U.S. 164, 171 n.7 (1974)). "The burden of
establishing that common authority rests upon the State." Id.
The Court in Rodriguez concluded that a warrantless entry
may nonetheless be valid under the Fourth Amendment where the
officer proceeds based upon a reasonable but mistaken belief
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that a third party has apparent authority to consent. See id.
at 188-89. 1 The Court wrote:
As with other factual determinations bearing
upon search and seizure, determinations of
consent to enter must be judged against an
objective standard: would the facts
available to the officer at the moment . . .
warrant a man of reasonable caution in the
belief that the consenting party had
authority over the premises? If not, then
warrantless entry without further inquiry is
unlawful unless authority actually exists.
But if so, the search is valid.
Id. at 188-89 (internal quotations and citations omitted).
III.
Applying the foregoing principles to the instant case, we
hold that May entered appellant's apartment in violation of
appellant's Fourth Amendment rights and that the trial court
erred in refusing to suppress the evidence found as a result of
the warrantless entry and subsequent search. Brown, a known
trespasser, lacked actual authority to consent to the
warrantless entry and the officer's belief that she had apparent
authority to consent was objectively unreasonable. A person of
"reasonable caution" could not logically conclude that an
1
The Fourth Circuit has held that the good faith exception
enunciated in Rodriguez does not "extend[ ] even beyond the
generally recognized exceptions to the warrant requirement: i.e.,
beyond consent, or one of the various forms of exigency that have
been recognized depending upon the purpose of the search." United
States v. Moss, 963 F.2d 673, 677 (4th Cir. 1992). Thus, "the
mistaken determinations of police officers that may be excused as
good faith, reasonable ones, must yet be related to elements of
one of these exceptions." Id. (emphasis added).
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individual arrested for trespass of a building or residence
could maintain, at the same time, authority over the premises
and, thus, authority to consent to an entry of those premises.
As the Supreme Court cautioned in Rodriguez, "what we hold today
does not suggest that law enforcement officers may always accept
a person's invitation to enter premises." Id. at 188. "Even
when the invitation is accompanied by an explicit assertion that
the person lives there, the surrounding circumstances could
conceivably be such that a reasonable person would doubt its
truth and not act upon it without further inquiry." Id.
Nevertheless, the Commonwealth contends that the officer's
actions were reasonable under the circumstances because "there
is no evidence that [appellant] questioned Brown's entry" and
"no one protested when the police went inside the apartment with
Brown." However, where the validity of a search rests on
consent, the Commonwealth has the burden of proving that the
necessary consent was obtained. See Johnson v. Commonwealth, 26
Va. App. 674, 687, 496 S.E.2d 143, 149-50 (1998) (citing Florida
v. Royer, 460 U.S. 491, 497 (1983) (plurality)). The
Commonwealth's "burden . . . is not satisfied by showing a mere
submission to a claim of lawful authority." Id. (citing Royer,
460 U.S. at 497); see also Bumper v. North Carolina, 391 U.S.
543, 548-49 (1968).
Here, May was responding to a report of a trespass in
progress at appellant's apartment complex when he saw Brown
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leaving appellant's apartment. He knew the apartment did not
belong to Brown and that she was banned from the apartment
building by the management. Brown was already under arrest at
the time the officers allowed her to enter the apartment and
followed her inside. The officers confronted no emergency that
required Brown to re-enter without permission of the owner, a
place Brown was legally barred from entering. The officers'
reliance on Brown's apparent authority to enter was not
objectively reasonable, and appellant's submission to the
officer's claim of lawful authority did not satisfy the
Commonwealth's burden.
The trial court erred in denying the motion to suppress the
evidence. Accordingly, we reverse and remand for further
proceedings if the Commonwealth be so advised. 2
Reversed and remanded.
2
The Commonwealth also contends the events that immediately
followed the officers' entry into appellant's apartment "purged
any taint" such that the evidence was nevertheless admissible.
This argument is without merit. The circumstances surrounding the
warrantless entry and the subsequent request for consent to search
demonstrate that the evidence obtained was the product of the
initial illegality, rather than "by means sufficiently
distinguishable to be purged of the primary taint." Wood v.
Commonwealth, 27 Va. App. 21, 31, 497 S.E.2d 484, 488 (1998)
(citations omitted). "The officers did not seek [appellant's]
consent until after they had made their illegal foray into the
[apartment] and found incriminating evidence." Id. Thus,
appellant's consent to search was not an independent source of the
evidence, but rather was an exploitation of the initial
warrantless entry.
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