COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Richmond, Virginia
SAMUEL FERGUSON
MEMORANDUM OPINION* BY
v. Record No. 1171-04-2 JUDGE LARRY G. ELDER
APRIL 26, 2005
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge
Gary R. Hershner for appellant.
Virginia G. Theisen, Assistant Attorney General (Judith Williams
Jagdmann, Attorney General; Margaret W. Reed, Assistant Attorney
General, on brief), for appellee.
Samuel Ferguson (appellant) appeals from his bench trial convictions for possessing
cocaine, heroin and marijuana. On appeal, he contends the search that yielded these drugs
violated his constitutional rights because the police lacked actual or apparent authority to enter
the house in which he resided and, thus, that the trial court should have granted his motion to
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
suppress. We hold the challenged entry and subsequent searches were reasonable based on
apparent authority,1 and we affirm, subject to remand solely for the correction of a clerical error.2
I.
Generally, evidence obtained as the result of a search or seizure that violates a
defendant’s Fourth Amendment rights is inadmissible at a criminal trial and must be suppressed.
E.g., Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L. Ed. 2d 1081 (1961); Weeks v.
United States, 232 U.S. 383, 391-93, 34 S. Ct. 341, 344, 58 L. Ed. 652 (1914). On appeal of the
denial of a motion to suppress, we view the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). “[W]e are
bound by the trial court’s findings of historical fact unless ‘plainly wrong’ or without evidence to
1
On brief, appellant included the following additional question presented:
Did the court err by overruling the motion to suppress even
though [appellant] may have eventually consented to a search of
his person and his belongings where he was compelled to enter the
premises to obtain his jacket because the weather was cold,
especially under the egregious circumstances of this case?
Appellant presented no separate argument on this issue.
“Questions ‘unsupported by argument, authority, or citations to the record do not merit
appellate consideration.’” Kane v. Szymczak, 41 Va. App. 365, 370, 585 S.E.2d 349, 352 (2003)
(quoting Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992)); see also Rule
5A:20(e) (requiring appellants to brief the “principles of law, the argument, and the authorities
relating to each question presented”). Appellant waived this question on appeal by failing to
present any separate principles of law or authority in support, and we do not consider it as a
separate issue.
2
Following the denial of appellant’s motion to suppress, he entered conditional guilty
pleas, as reflected by the transcript of February 18, 2003. However, the February 18, 2003
conviction order does not reflect that those pleas were conditional. Because the transcript clearly
reflects the pleas were conditional and the Commonwealth does not contend otherwise, we
remand to the trial court for the sole purpose of correcting this clerical error in the conviction
order. See Tatum v. Commonwealth, 17 Va. App. 585, 592, 440 S.E.2d 133, 138 (1994).
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support them[,] and we give due weight to the inferences drawn from those facts by resident
judges and local law enforcement officers.” McGee v. Commonwealth, 25 Va. App. 193, 198,
487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United States, 517 U.S. 690, 699, 116
S. Ct. 1657, 1663, 134 L. Ed. 2d 911 (1996)). However, we review de novo the trial court’s
application of defined legal standards. Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663.
A.
ENTRY OF PREMISES
At a hearing on a defendant’s motion to suppress evidence allegedly obtained in violation
of the Fourth Amendment, the defendant has the burden of proving he had a reasonable
expectation of privacy in the place searched, Barnes v. Commonwealth, 234 Va. 130, 135, 360
S.E.2d 196, 200 (1987) (citing Rakas v. Illinois, 439 U.S. 128, 131 n.1, 99 S. Ct. 421, 424 n.1, 58
L. Ed. 2d 387 (1978)), and the Commonwealth has the burden of proving that the relevant search
or seizure did not violate the defendant’s Fourth Amendment rights, Simmons v.
Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989); Alexander v. Commonwealth,
19 Va. App. 671, 674, 454 S.E.2d 39, 41 (1995).
Whether an individual maintains a legitimate expectation of privacy in a particular
premises to be searched
involves a two-part inquiry. First, we must determine whether the
individual has manifested “a subjective expectation of privacy” in
the object of the challenged search. This inquiry is a factual
determination to which we must give deference on appeal.
Second, we must determine whether the expectation of privacy is
objectively reasonable, one that society is willing to recognize as
legitimate. This is a legal determination, requiring no deference on
review.
Johnson v. Commonwealth, 26 Va. App. 674, 683-84, 496 S.E.2d 143, 148 (1998) (quoting
Wellford v. Commonwealth, 227 Va. 297, 301, 315 S.E.2d 235, 237 (1984)) (citations omitted).
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In determining whether an expectation of privacy is objectively reasonable, a court looks to the
totality of the circumstances,
“includ[ing] whether the defendant has a possessory interest in . . .
the place searched, whether he has the right to exclude others from
that place, whether he has exhibited a subjective expectation that it
would remain free from governmental invasion, whether he took
normal precautions to maintain his privacy and whether he was
legitimately on the premises.”
McCoy v. Commonwealth, 2 Va. App. 309, 312, 343 S.E.2d 383, 385 (1986) (quoting United
States v. Haydel, 649 F.2d 1152, 1155 (5th Cir. 1981)).
“Searches and seizures inside a home without a warrant are presumptively unreasonable”
under the Fourth Amendment. Payton v. New York, 445 U.S. 573, 586-90, 100 S. Ct. 1371,
1380-82, 63 L. Ed. 2d 639 (1980). However, the warrantless entry and search of a home is
reasonable when justified by exigent circumstances or consent. Robinson v. Commonwealth, 31
Va. App. 479, 484, 524 S.E.2d 171, 173 (2000). Valid consent may be obtained “either from the
individual whose property is searched or from a third party who possesses common authority
over the premises.” Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S. Ct. 2793, 2797, 111
L. Ed. 2d 148 (1990); see Jones v. Commonwealth, 16 Va. App. 725, 727, 432 S.E.2d 517,
518-19 (1993). A mere property interest may be relevant but is not necessarily determinative.
United States v. Matlock, 415 U.S. 164, 172 n.7, 94 S. Ct. 988, 993 n.7, 39 L. Ed. 2d 242 (1974);
see 4 Wayne R. LaFave, Search and Seizure § 8.3(a), at 144 (4th ed. 2004). For example, a
motel clerk or apartment owner ordinarily may not provide valid consent for the search of a
registered guest’s room or lessee’s apartment. See Chapman v. United States, 365 U.S. 610,
617-18, 81 S. Ct. 776, 780, 5 L. Ed. 2d 828 (1961) (holding landlord could not validly consent to
search of house he rented to another); see also Stoner v. California, 376 U.S. 483, 487-89, 84
S. Ct. 889, 892-93, 11 L. Ed. 2d 856 (1964) (holding hotel clerk could not give valid consent for
search of customer’s room). “[T]he rule [is not] otherwise ‘merely because the rental agreement
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is not reduced to writing or because the rent is paid in kind rather than in currency.’” 4 LaFave,
supra, § 8.5(a), at 210 (quoting State v. Coyle, 574 A.2d 951, 962 (N.J. 1990)).
“[E]ven if the party giving consent does not have actual authority to consent, ‘apparent
authority’ may be sufficient, if the circumstances[, viewed objectively,] would lead a reasonable
officer to conclude that the person providing consent had the requisite authority to do so.”
Bryant v. Commonwealth, 39 Va. App. 465, 471, 573 S.E.2d 332, 335 (2002) (quoting Jones, 16
Va. App. at 727-28, 432 S.E.2d at 519 (noting motel staff may consent to search of vacant room
and that staff member’s apparent authority to consent may be sufficient if officer “could
reasonably have believed that the room was vacant such that the maid had [actual] authority to
consent to the search”)); see Rodriguez, 497 U.S. at 188-89, 110 S. Ct. at 2801 (noting standard
is an objective one).
Here, we assume without deciding that appellant had a subjective expectation of privacy
in some portion of the rooming house at 3111 Third Avenue. The trial court implied as much
when it concluded “[t]here isn’t any question that [appellant] had some relationship with the
property” and that appellant “seems like a reasonable person . . . who has a belief that he can be
there.” However, the trial court also found apparent authority supported the entry because the
police officers reasonably believed Stephanie Metzger had actual authority to consent to the
entry. The evidence supported this finding. Thus, we need not consider whether Metzger had
actual authority to consent to the entry.
Metzger and a woman she introduced as Linda Woods, her attorney, approached Officer
James Baldwin in the vicinity of the boarding house and told him she had found “squatters” on
her property. Woods related to Officer Baldwin “[t]he details of the case. That the property was
in dispute. That it was co-owned by [Metzger] and [Beth] Kolberg.” Woods reported that “there
were no signed leases” and that “no one was to be in the house.” She also related what Kolberg
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had said on deposition--that “she had not given permission to anyone to be in the premises” and
that “someone named Sam . . . was a squatter.” Metzger and Woods related the same
information to Officer Janet Patrick when she arrived on the scene in response to Officer
Baldwin’s call. Although neither officer knew the women and neither requested identification,
Officer Baldwin testified that Ms. Metzger
had a lot of information about the house, as far as what was going
on, the problems she would have, and her locks had been changed.
I mean, she knew a lot about the information. It wasn’t the fact
that she just showed up and said, hey, there’s somebody in my
house and we ran over there. . . . We did try to investigate as much
as possible.
Finally, Metzger and Woods remained at the scene while the officers “investigate[d] what
exactly was going on” at the boarding house, thereby subjecting themselves to criminal penalties
if the information they had given to the police proved to be false. Cf. Russell v. Commonwealth,
33 Va. App. 604, 616-17, 535 S.E.2d 699, 705 (2000) (noting reliability of criminal informant’s
tip is enhanced where identity is known to police so that informer may be subject to criminal
penalties if information is found to have been fabricated).
Further, nothing the officers learned upon their arrival at the boarding house required
them to cease their efforts to investigate Metzger’s complaint. Appellant claimed he had
permission to be in the house while working on it, but he produced identification that bore a
different address and provided no documentation to establish his right to occupy the premises.
Appellant claimed he showed Officer Patrick his “insurance papers” for the boarding house
when the police first arrived on April 8, 2003, but Officer Patrick could not recall whether
appellant showed her such documentation. Appellant introduced at trial a sheet of insurance
payment coupons bearing his name and the address of the boarding house, but the coupons did
not specifically indicate what personal or real property was insured. Further, the coupons
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covered only the period from June 21, 2002, through January 21, 2003, and all coupons remained
attached to the sheet, calling into question whether any of the premium payments had been made.
This evidence, viewed in the light most favorable to the Commonwealth, rendered
reasonable the officers’ belief that Ms. Metzger had authority to consent to their entry and search
of the premises. Accordingly, Metzger’s apparent authority legitimized the presence of the
police on the premises.
B.
SEARCH OF APPELLANT AND HIS BACKPACK
The trial court found that while Officer Patrick was legitimately in the house, appellant
consented to a search of his person and his backpack. The evidence, viewed in the light most
favorable to the Commonwealth, supports that finding.
“[S]earches made by the police pursuant to a valid consent do not implicate the Fourth
Amendment.” McNair v. Commonwealth, 31 Va. App. 76, 82, 521 S.E.2d 303, 306 (1999)
(en banc). “Consent to a search must be freely and voluntarily given.” Davis v. Commonwealth,
37 Va. App. 421, 433, 559 S.E.2d 374, 379 (2002) (citing Schneckloth v. Bustamonte, 412 U.S.
218, 227, 93 S. Ct. 2041, 2048, 36 L. Ed. 2d 854 (1973)). “When the Commonwealth bases its
authority to conduct a warrantless search upon a claim that the defendant consented, the
Commonwealth has the burden at trial to prove by a preponderance of the evidence that the
consent was voluntary.” Camden v. Commonwealth, 17 Va. App. 725, 727, 441 S.E.2d 38, 39
(1994). Whether a consent to search was voluntarily given “is a question of fact to be
determined from the totality of all the circumstances.” Schneckloth, 412 U.S. at 227, 93 S. Ct. at
2048. “The fact of custody alone is not enough in itself to demonstrate a coerced consent to
search.” Lowe v. Commonwealth, 218 Va. 670, 678, 239 S.E.2d 112, 117 (1977) (citing United
States v. Watson, 423 U.S. 411, 424, 96 S. Ct. 820, 828, 46 L. Ed. 2d 598 (1976)). In
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determining whether a consent to search is voluntary, “‘it is appropriate to consider the
characteristics of the accused.’” Londono v. Commonwealth, 40 Va. App. 377, 402, 579 S.E.2d
641, 653 (2003) (quoting United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996) (en banc)).
“[T]he absence of proof that [the suspect] knew he could withhold his consent, though it may be
a factor in the overall judgment, is not to be given controlling significance.” Watson, 423 U.S. at
424, 96 S. Ct. at 828.
While legitimately in an upstairs bedroom of the house pursuant to Metzger’s consent,
Officer Patrick saw in plain view in the trashcan “a corner to a plastic bag with white residue.”
At about that same time, appellant appeared, reported that the room was his, and said he had
come to get his jacket. Officer Patrick said appellant was free to get his jacket. She then asked
appellant if he had any drugs or weapons on him, and appellant said he did not. Officer Patrick
asked, “Can I search you?” and appellant responded, “yes and put his hands up” to facilitate a
search. The trial court found as a fact, “based on the Court’s judgment about [appellant] as he
was on the stand,” that appellant was “a fairly cooperative person” and that his consent to the
search of his person was voluntary. The evidence supports that finding. Officer Patrick was the
only officer with appellant at that time. Appellant was not in custody at that time and had come
to the room voluntarily to get his jacket. Officer Patrick told him he was free to get his jacket
before she asked for permission to search him.
The trial court, in stating that appellant “did give permission in both cases for the search,”
also concluded that appellant voluntarily consented to a search of his room and its contents. We
hold the evidence supports that finding, as well. Although appellant was under arrest and had
been handcuffed and advised of his rights, he was at the boarding house, in what he claimed to
be his room, rather than at the police station or some other coercive environment. Although
other officers were in the doorway to the room, only Officer Patrick was in appellant’s
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immediate presence. Officer Patrick testified that she asked appellant for his consent to search in
a normal, “calm” tone of voice, which she demonstrated for the court. None of the officers had
their weapons drawn. Based on these facts, the trial court’s conclusion that appellant’s consent
to a search of his room was voluntary was not plainly wrong. See, e.g., Lowe, 218 Va. at
674-78, 239 S.E.2d at 115-17 (upholding finding of voluntary consent where defendant was “in
custody, handcuffed, sitting on the floor,” and “surrounded by . . . armed [police officers],” and
refused to sign “Consent to Search Form” but said, “You go ahead and search”); see also United
States v. Burns, 298 F.3d 523, 541 (6th Cir. 2002) (holding consent valid despite handcuffs
where defendant “was not confined in the police station” and consent resulted from “friendly
conversation”); People v. James, 561 P.2d 1135, 1140 (Cal. 1977) (holding fact “that a defendant
is under an arrest and in handcuffs at the time of giving consent does not per se make a consent
to search involuntary” (citation omitted)). Thus, Officer Patrick’s search of the backpack on
appellant’s bed while the two stood in appellant’s bedroom was not unreasonable, and the trial
court properly denied appellant’s motion to suppress the drugs found inside the backpack.
II.
For these reasons, we hold consent based on apparent authority from an owner of the
premises justified police entry of the boarding house. When the police later encountered
appellant inside the rooming house, he voluntarily consented to a search of his person and his
room. All challenged searches were reasonable, and the trial court did not err in denying
appellant’s motion to suppress. Thus, we affirm appellant’s convictions and remand solely for
the correction of a clerical error.
Affirmed and remanded with instructions.
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