COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, Malveaux and Senior Judge Clements
UNPUBLISHED
Argued at Richmond, Virginia
CHRISTINE FRANCIS PARHAM, A/K/A
CHRISTINE FRANCIS MILLER
MEMORANDUM OPINION* BY
v. Record No. 1823-18-2 JUDGE MARY BENNETT MALVEAUX
DECEMBER 10, 2019
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Phillip L. Hairston, Judge
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.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Appellant entered her conditional plea pursuant to Code § 19.2-254, which permits a
defendant, “[w]ith the approval of the [circuit] court and the consent of the Commonwealth,” to
“enter a conditional plea of guilty . . . , reserving the right, on appeal from the judgment, to a
review of the adverse determination of any specified pretrial motion.” Neither party assigns
error to the trial court for accepting a conditional plea of nolo contendere, rather than a
conditional plea of guilty, from appellant. Thus, we do not consider whether the trial court erred
in accepting that plea. See White v. Commonwealth, 272 Va. 619, 621 (2006) (resolving appeal
on the merits where the defendant entered a conditional plea of nolo contendere and neither party
assigned error to the trial court for accepting that plea).
I. BACKGROUND
“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, “I don’t know if she said yes or okay. . . . But
she gave consent.”
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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 “the opposite of consent. . . . If
you ask if I mind if you do something and the person says yes, I mind, that is certainly not giving
consent.” 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 to
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suppress.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.
II. ANALYSIS
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, “we view ‘the facts in the light most
favorable to the Commonwealth, giving it the benefit of any reasonable inferences. This
standard requires us to give due weight to inferences drawn from those facts by resident judges
and local law enforcement officers.’” 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).
2
As part of appellant’s plea agreement, the Commonwealth agreed to nolle prosequi a
charge of felony possession of Oxycodone. In addition, appellant stipulated that the substance
found in the cigarette pack was cocaine.
3
Appellant’s assignment of error asserts that the detectives’ warrantless search was
conducted “in violation of the Fourth and Fourteenth Amendments to the United State[s]
Constitution.” However, appellant makes no specific argument on brief that her due process,
equal protection, or other rights under the Fourteenth Amendment were infringed by the search.
Consequently, we confine our analysis to the Fourth Amendment implications of the detectives’
conduct. See Ele v. Commonwealth, 70 Va. App. 543, 552 n.3 (2019) (“This Court need not
consider appellant’s statement in his assignment of error that the evidence was insufficient . . .
[because] [h]e did not develop this argument or support it with any authority in his brief.”);
Turner v. Commonwealth, 67 Va. App. 46, 61 (2016) (“Statements unsupported by argument,
authority, or citations to the record do not merit appellate consideration.” (quoting Buchanan v.
Buchanan, 14 Va. App. 53, 56 (1992))); Rule 5A:20(e) (requiring issues raised in an appellant’s
assignment of error to be supported on brief by argument, “including principles of law and
authorities”).
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“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)
(first quoting Kyer v. Commonwealth, 45 Va. App. 473, 483 (2005) (en banc), then quoting
Limonja v. Commonwealth, 8 Va. App. 532, 540 (1989)); see also Brooks v. Commonwealth,
282 Va. 90, 95 (2011) (“[I]t 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.” (second and third alterations in original) (quoting Schneckloth v. Bustamonte, 412 U.S.
218, 219 (1973))). 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 . . .
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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 that
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appellant objected. The trial court, which had the opportunity to see and hear the detectives’
testimony, had “sole responsibility to determine [their] credibility” and “the weight [to] give[] to
their testimony.” Jennings v. Commonwealth, 67 Va. App. 620, 625 (2017). The court
specifically considered the combined testimony of the detectives and concluded that, taken as a
whole, their testimony indicated that appellant had consented to a search. This factual finding of
consent was not plainly wrong. As such, we will not disturb it on appeal.
Appellant further argues that there was no evidence that she specifically consented to the
search of her purse. She notes that Johnson never testified specifically about what her verbal
consent to a search entailed and that although he was sure she consented “with her words,” he
could not remember exactly what those words were.4 Consequently, appellant contends, the
evidence was too vague, contradictory, and ambiguous to establish that appellant specifically
consented to the search of her purse.
“A consensual search is reasonable if the search is within the scope of the consent given.”
Edwards v. Commonwealth, 38 Va. App. 823, 827 (2002) (quoting Grinton v. Commonwealth,
14 Va. App. 846, 850 (1992)). We have previously held that while “[a] suspect may of course
delimit as he chooses the scope of the search to which he consents,” if the suspect’s “consent
would reasonably be understood to extend to a particular container, the Fourth Amendment
provides no grounds for requiring a more explicit authorization.” Lawrence v. Commonwealth,
17 Va. App. 140, 145 (1993) (quoting Florida v. Jimeno, 500 U.S. 248, 252 (1991)).
4
Appellant also notes that Fernandez testified that she said “yes” when Johnson asked
her if she had anything illegal on her and “if she minded if we searched.” She argues that this
response meant that she “did mind if they searched her purse. This is not consent. It is the
opposite.” We need not consider this argument on appeal, as in advancing this interpretation of
Fernandez’s testimony and appellant’s statement, appellant presents the evidence in the light
most favorable to appellant, not the Commonwealth—the inverse of the view which this Court
takes on review. This argument further ignores the fact that the trial court, as finder of fact, was
free to conclude from the totality of the circumstances, as it did, that appellant was voicing
consent and not an objection to the detectives searching her purse.
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Accordingly, we have also held that “the scope of consent to search one’s person encompasses
such items” as “containers held by the person,” including backpacks and purses. Edwards, 38
Va. App. at 829. Additionally, “[t]he scope of a search may be further defined during the course
of the search by the passive acquiescence of the person whose property is being searched.”
Grinton, 14 Va. App. at 851. “Both the presence of consent to search and any related limitations
are factual issues for the trial court to resolve after consideration of the attendant circumstances.”
Edwards, 38 Va. App. at 827 (quoting Bynum v. Commonwealth, 23 Va. App. 412, 418 (1996)).
Appellant’s argument that she did not specifically consent to the search of her purse is
unpersuasive. She was informed by Detective Johnson that he had received reliable information
that she had drugs on her person. Johnson then asked appellant if she had “anything illegal on
her” and “could [Johnson] check.” Both Detective Johnson and Detective Fernandez testified
that appellant answered Johnson in the affirmative; neither testified that appellant attempted to
limit the scope of Johnson’s “check” either before or during his search of appellant’s purse.
After considering the detectives’ testimony and the reasonable inferences flowing from that
testimony, the trial court concluded not only that appellant had consented to a search, but that the
scope of her consent had specifically extended to a search of her purse. This factual finding was
not plainly wrong, and thus we will not disturb it on appeal.
III. CONCLUSION
Finding no error, we affirm the trial court’s denial of appellant’s motion to suppress and
affirm appellant’s conviction.
Affirmed.
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