Anderson v. Commonwealth

PRESENT: Carrico, C.J., Compton, Lacy, Hassell, Koontz, and
Kinser, JJ., and Stephenson, Senior Justice

LEMAR JAMIE ANDERSON, S/K/A
LAMAR JAMIE ANDERSON
OPINION BY
v. Record No. 980486 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
November 6, 1998
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

The sole issue in this appeal is whether the Court of

Appeals correctly decided that the trial court did not err in

denying the defendant's motion to suppress evidence seized from

his person and property.

I

On January 9, 1995, Lemar Jamie Anderson entered into a

written plea agreement whereby he agreed to plead guilty to

possession of a firearm upon school property in violation of

Code § 18.2-308.1. The agreement provided that Anderson would

be sentenced to two years' imprisonment with execution of the

sentence suspended upon certain terms and conditions, one of

those being that he

shall waive his Fourth Amendment right against
unreasonable searches and seizures for a period of one
year from the date of sentencing, to-wit: he shall
submit his person, place of residence, and property to
search or seizure at any time of the day or night by
any law enforcement officer with or without a warrant.
The plea agreement was signed by Anderson, his attorney,

and the attorney for the Commonwealth. Above Anderson's

signature, the following was set forth in large type:

BY HIS SIGNATURE BELOW, [ANDERSON] ACKNOWLEDGES THAT,
IF THIS AGREEMENT IS ACCEPTED BY THE COURT, HE
UNDERSTANDS HE IS WAIVING HIS FOURTH AMENDMENT RIGHT
AGAINST UNREASONABLE SEARCHES AND SEIZURES DURING THE
PERIOD SPECIFIED ABOVE.

Thereafter, the plea agreement was presented to the trial

court, the Circuit Court of the City of Virginia Beach. The

court carefully questioned Anderson regarding his guilty plea

and the terms and conditions of his plea agreement. Anderson

informed the court that he fully understood those terms and

conditions and the consequences of his guilty plea. The court

also ascertained that Anderson's counsel had reviewed with

Anderson the terms and conditions of the agreement, particularly

the provision that Anderson "waives his right to be free from

unreasonable search and seizures for a period of one year."

At the sentencing hearing, the Commonwealth introduced

certified copies of Anderson's two prior convictions for

possession of marijuana with intent to distribute, and the

attorney for the Commonwealth stated the following:

[W]e've given [Anderson] every incentive in the world
to remain of good behavior. He will know as he's out
and about that he can be stopped at any time and be
checked to make sure he is not carrying drugs or
weapons or anything else.

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The trial court found that Anderson's guilty plea was entered

freely and voluntarily. The court also approved the plea

agreement and incorporated its terms and conditions into its

January 9, 1995 sentencing order.

On June 21, 1995, two off-duty Virginia Beach police

officers working as private security guards saw Anderson and two

companions alight from a van and "being very loud" in public.

The officers approached the three and ordered them to stop, at

which time they began to walk faster.

When the officers caught up to them, Anderson dropped "a

white tissue or white bag" on the ground and placed his backpack

by an apartment door. One of the companions took the backpack

inside the apartment, but an officer demanded that the backpack

be brought outside. The individual then gave the backpack to

the officer, and the officer found a .357 magnum handgun inside

the backpack. The officer then placed Anderson under arrest for

carrying a concealed weapon.

The officer retrieved the "small white baggie" that

Anderson had dropped to the ground. The baggie contained a

rock-like substance that proved to be 0.07 grams of cocaine.

The officer also seized another baggie that Anderson had dropped

to the ground as he was placed in the patrol car. This baggie

contained 0.18 ounces of marijuana. The Commonwealth concedes

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that, absent a valid waiver, the circumstances did not support a

warrantless search of Anderson's person and property.

Anderson was charged with possession of cocaine, possession

of a firearm after having been convicted of a felony, and

possession of marijuana. 1 Prior to trial, he moved to suppress

the seized evidence, contending that his waiver of his Fourth

Amendment rights in the January 5, 1995 plea agreement was

invalid. The trial court denied the motion to suppress, finding

that the waiver was valid.

Anderson then entered a conditional plea of guilty,

reserving his right to appeal the denial of his motion to

suppress. A panel of the Court of Appeals affirmed the trial

court's denial of the motion to suppress, finding that

Anderson's waiver of his Fourth Amendment rights in the January

5, 1995 plea agreement was valid. Anderson v. Commonwealth, 25

Va. App. 565, 490 S.E.2d 274 (1997). Upon a rehearing en banc,

the full Court of Appeals also affirmed the trial court's

decision for the reasons set forth in the panel opinion.

Anderson v. Commonwealth, 26 Va. App. 535, 495 S.E.2d 547

(1998). We awarded Anderson an appeal.

II

1
Anderson also was charged with possession of a controlled
substance while in possession of a firearm, but this charge was
nolle prossed.

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 Anderson advances a number of arguments to support his

contention that the waiver of his Fourth Amendment rights was

invalid. He first asserts that the waiver was the result of

coercion, claiming that the waiver was not "negotiated at arms

length by equal parties," but was "dictated by the

Commonwealth." According to Anderson, "[h]e sought only to

avoid time in jail."

To justify a search on the basis of a waiver, the Fourth

Amendment requires the Commonwealth to show that the waiver was

given voluntarily and did not result from coercion. See

Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973). Whether

a waiver is given voluntarily is a factual issue to be

determined from all the circumstances. Id.

In the present case, Anderson, while represented by

counsel, executed the plea agreement containing the waiver. He

acknowledged to the trial court that the agreement, including

the waiver, was made knowingly and voluntarily, and he requested

that the trial court approve it. The trial court was careful to

make certain that Anderson understood the consequences of the

waiver and that it was his voluntary act.

Therefore, we reject Anderson's contention and hold that

the waiver was not the result of coercion. Indeed, if Anderson

were correct, all plea agreements would be invalid on the basis

of coercion because all such agreements involve to some degree a

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desire by a defendant to limit or diminish punishment. As the

Supreme Court has held, however, a defendant can voluntarily

agree to a bargain that provides for one of two undesirable

options. Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978).

Furthermore, we agree with the Court of Appeals' observation

that "[a]n offender's selection between two sanctions resulting

from his own wrongdoing constitutes choice, not coercion."

Anderson, 25 Va. App. at 573, 490 S.E.2d at 278.

Anderson also asserts that the trial court acted

unreasonably in conditioning the suspended sentence upon a

waiver of his Fourth Amendment rights. Code § 19.2-303 empowers

a trial court to place conditions on a suspended sentence. The

sole statutory limitation placed upon a trial court's discretion

in its determination of such conditions is one of

reasonableness. Dyke v. Commonwealth, 193 Va. 478, 484, 69

S.E.2d 483, 486 (1952) (decided under predecessor statute).

In the present case, it is difficult to understand how

Anderson can now contend that this condition of his suspended

sentence was unreasonable when he knowingly and voluntarily

agreed to it. Moreover, Anderson had a history of drug and

firearm offenses, and the waiver provided the Commonwealth with

a useful means of verifying Anderson's compliance with the

condition that he would be of good behavior. Both Anderson and

the Commonwealth benefited from the plea agreement in that

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Anderson received his freedom and the Commonwealth gained some

control over his behavior. We conclude, therefore, that, based

upon the nature of the offense, Anderson's background, and the

surrounding circumstances, the Court of Appeals correctly

decided that the trial court acted reasonably and did not abuse

its discretion in conditioning Anderson's suspended sentence

upon the waiver.

Anderson also claims that the waiver of his Fourth

Amendment rights was invalid because it was overly broad.

Again, we cannot ignore the fact that the waiver was the product

of Anderson's voluntary act. As previously noted, its purpose

was to ensure Anderson's good conduct. To achieve that end, the

scope of the waiver needed to be broad, requiring Anderson to

submit his person and property to search or seizure at any time

by any law enforcement officer with or without a warrant. The

scope of the waiver was broad, but, in the circumstance of the

present case, we cannot say the waiver was invalid for its being

overly broad. We also cannot say the one-year duration of the

waiver, agreed upon by Anderson, invalidated it.

Anderson next contends that, by his plea agreement, he did

not presently waive his Fourth Amendment rights; rather, he

merely agreed that he would give such a waiver in the future

should a search of his person or property be sought. The

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language of the waiver, Anderson argues, denotes a requirement

of future action by him. We do not agree.

We think the language of the waiver is clear and

unambiguous, and we agree with the Court of Appeals that the

"words 'shall waive' . . . state an imperative" and do not refer

to a future act. Moreover, Anderson overlooks the provision in

the plea agreement immediately above his signature whereby he

acknowledged that he "IS WAIVING" his Fourth Amendment rights. 2

Finally, we find meritless any contention that the

officers' lack of prior knowledge of Anderson's waiver rendered

the search invalid. The waiver expressly states that Anderson

agreed to submit his person or property to "any law enforcement

officer." (Emphasis added.) Indeed, Anderson concedes on brief

that the waiver "did not have to be related to the supervision

of [his] probation."

III

In sum, we hold that the Court of Appeals correctly decided

that the waiver agreed upon by Anderson and adopted by the trial

court was given knowingly and voluntarily, was not the result of

2
Anderson argues that, because he merely agreed to a future
waiver, his refusal to submit to a search on June 21, 1995,
could amount to no more than a violation of the conditions of
his suspended sentence and could not validate an unreasonable
warrantless search. In holding that Anderson gave a present
waiver, we reject this argument. Moreover, the record does not
indicate that Anderson ever refused to submit to a search on
June 21, 1995.

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coercion, was not overly broad, and was reasonable in the

circumstances of this case. Thus, the waiver was valid.

Accordingly, the judgment of the Court of Appeals will be

affirmed.

Affirmed.

JUSTICE KINSER, with whom JUSICE LACY and JUSTICE HASSELL join,
concurring.

I concur in the majority’s decision to affirm the judgment

of the Court of Appeals only because I conclude that Lemar Jamie

Anderson voluntarily, with advice of counsel, entered into the

plea agreement in which he waived his Fourth Amendment right

against unreasonable searches and seizures and agreed to submit

to such searches at any time, by any law enforcement officer.

Anderson obviously accepted this broad waiver because he was

bargaining with the Commonwealth in order to avoid

incarceration.

However, I draw a distinction between this case and one in

which a trial court imposes the same broad waiver of Fourth

Amendment rights as a condition of probation when the defendant

has not consented to the waiver in a plea agreement. In the

latter situation, I believe that such a waiver might be

constitutionally impermissible if it allowed law enforcement

officers to conduct warrantless searches of probationers for

investigative purposes, as was done in this case, rather than

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limiting such searches to those that are reasonably related to

furthering the goals of probation. See United States v. Ooley,

116 F.3d 370, 372 (9th Cir. 1997), cert. denied, ___ U.S. ___,

118 S.Ct. 2391 (1998) (holding that legality of warrantless

search of probationer depends upon showing that search was true

probation search and not investigative search); State of New

Hampshire v. Zeta Chi Fraternity, 696 A.2d 530, 540 (N.H.),

cert. denied, ___ U.S. ___, 118 S.Ct. 558 (1997)(“[W]hen a

condition of probation authorizes random warrantless searches

and the condition is reasonably related to the supervision and

rehabilitation of the probationer, a warrantless probation

search is constitutionally permissible.”). Otherwise, law

enforcement officers could use the condition of probation

waiving Fourth Amendment rights as a subterfuge to turn every

unreasonable search of a probationer into a lawful one.

Because of these concerns, I write separately and

respectfully concur.

JUSTICE KOONTZ, dissenting.

I respectfully dissent.

While I agree with the majority’s view that Anderson’s

waiver of his Fourth Amendment rights was made knowingly and

voluntarily, and that the trial court acted within its

discretion in making this a condition of Anderson’s suspended

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sentence, I do not agree that “the scope of the waiver needed to

be broad, requiring Anderson to submit his person and property

to search or seizure at any time by any law enforcement

officer.” Rather, I would adopt the view of the dissent in the

Court of Appeals that the scope of the waiver was limited to its

intended purpose of “allow[ing] law enforcement officers,

including the defendant’s probation officer, who knew of the

defendant’s probationary status, to be able to monitor the

defendant’s conduct and behavior by searching him, his home, his

vehicle, or personal belongings without notice and without

probable cause.” Anderson v. Commonwealth, 25 Va. App. 565,

578, 490 S.E.2d 274, 280 (1997)(Coleman, J., concurring in part,

and dissenting in part); see also Anderson v. Commonwealth, 26

Va. App. 535, 495 S.E.2d 547 (1998)(en banc) (four judges

dissenting for the same reasons set forth in the panel dissent). 3

Waivers such as the one obtained in this case are not

intended to provide the state with an absolute authority to

harass the probationer with impunity. United States v. Johnson,

722 F.2d 525, 527 (9th Cir. 1983). Rather, they “allow officials

3
Although on brief Anderson uses the language that the
waiver “did not have to be related to the supervision of [his]
probation” quoted by the majority as a concession by Anderson, a
fair reading of that language in context of Anderson’s argument
does not support the conclusion that it was a concession of
anything. Rather, it was an inartful way of addressing the
broad scope of the waiver that unquestioningly was challenged by
Anderson.

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to monitor [a probationer’s] activities . . . tied to the

rehabilitative purpose of his probationary sentence.” Allen v.

State, 369 S.E.2d 909, 910 (Ga. 1988). If such were not the

case, the generalized inclusion of such language in all plea

agreements by the Commonwealth would unquestionably lead to

abuse of the waivers by law enforcement officials.

Here, the Commonwealth concedes that the officers did not

conduct their search of Anderson with knowledge of the waiver or

to assure that Anderson was adhering to the conditions of his

suspended sentence. Accordingly, I would hold that the search

exceeded the scope of the waiver and was not otherwise founded

on voluntary consent or reasonable grounds sufficient to

overcome Anderson’s Fourth Amendment privilege. For these

reasons, I would reverse the judgment of the Court of Appeals.

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