COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Humphreys
Argued at Chesapeake, Virginia
JOSEPH LEROY BRYANT
OPINION BY
v. Record No. 1924-01-1 JUDGE ROBERT J. HUMPHREYS
DECEMBER 17, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Patricia L. West, Judge
William R. Giessuebel, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Amy L. Marshall, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Joseph Leroy Bryant appeals his conviction, upon a
conditional plea of guilty, for possession of an imitation
controlled substance with the intent to distribute, in violation
of Code § 18.2-248. Bryant contends the trial court erred in
denying his motion to suppress the evidence against him.
Specifically, Bryant argues that a statement, upon which the
trial court based its decision, constituted hearsay. For the
reasons that follow, we affirm the judgment of the trial court.
I. BACKGROUND
Prior to his trial on the charge of possession of an
imitation controlled substance with intent to distribute, Bryant
filed a motion to suppress evidence obtained as a result of a
search of his hotel room. During the hearing on the motion,
Officer Ryan Arnold of the Virginia Beach Police Department
testified that on June 21, 2001, he was approached by a man who
informed him that he had just been at the Regency Hotel on 23rd
and Atlantic Avenue and that occupants of Room 107 had attempted
to sell him cocaine. The man told Officer Arnold that a couple
of men and a woman were in the room.
Officer Arnold proceeded immediately to Room 107 of the
Regency Hotel and knocked on the door. Officer Arnold testified
that as he knocked, he could hear people moving around inside.
After the third knock, a man opened the door. Officer Arnold
observed three men and a woman inside. Arnold identified
himself, explained why he was there, and asked the occupants "who
was registered to the room." Fred Klepsattel, an occupant of the
room, responded that the room was registered in his name. Bryant
stipulated the room was registered to Klepsattel, as well as
himself.
Officer Arnold again explained to Klepsattel "that [he] had
gotten a complaint about possible drug activity going on."
Officer Arnold then asked Klepsattel and the other occupants if
they knew of any such activity. Arnold testified that "everybody
in the room stated no." He then asked Klepsattel for his consent
to search the room, and testified that Klepsattel responded,
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"Yes, you can search the whole place." Bryant objected to
Arnold's testimony about Klepsattel's response.
During the search, Officer Arnold found Bryant in the
bathroom. Arnold testified that he found substances resembling
narcotics and drug paraphernalia in the bathroom and other areas
of the hotel room, including a duffel bag in a closet containing
Bryant's clothing. He then arrested Bryant on the charge at
issue.
At the suppression hearing, Bryant contended that
Klepsattel's statement, giving Arnold consent to search the hotel
room, constituted hearsay. Accordingly, because Klepsattle did
not testify at the hearing, he argued the Commonwealth could not
prove the requisite consent to search. Furthermore, Bryant
contended the Commonwealth also failed to prove Klepsattel had
authority to give Officer Arnold consent to search the room. The
Commonwealth responded that Arnold's testimony as to Klepsattel's
statement consenting to the search was not being offered for the
truth of the matter asserted and, therefore, was not hearsay.
The trial court took the matter under advisement until the
end of the hearing. At that time, and without specifically
ruling on the objection, the trial court denied Bryant's motion
to suppress, holding:
So just like in Jones [v. Commonwealth, 16
Va. App. 725, 423 S.E.2d 517 (1993)], the
key issue here is whether apparent authority
existed and as I have already indicated,
based upon the testimony of the police
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officer, [Klepsattel] had the apparent
authority to give consent to search the
premises since he had identified himself as
being the person to whom the room was
registered. This, of course, was confirmed
later by the police officer.
* * * * * * *
[T]he issue regarding the statement then
is . . . does not have anything to do with
the truth of the statement. It has solely
to do with whether or not the statement was
made, whether or not [Klepsattel] told the
police officer that he had consent to search
because that is one of the keys which would
go into determining whether or not the
officer had the apparent authority.
I find when you consider both of those
factors, that the police officer . . .
[Klepsattel] had the apparent authority and
the police officer could reasonably rely on
[Klepsattel's] statement in order to conduct
the search of the motel room; and I'm going
to deny the motion to suppress.
II. Analysis
When we review a trial court's denial of a suppression
motion, "[w]e view the evidence in a light most favorable to
. . . the prevailing party below, and we grant all reasonable
inferences fairly deducible from that evidence." Commonwealth
v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991)
(citation omitted). In our review, "we are bound by the trial
court's findings of historical fact unless 'plainly wrong' or
without evidence to support them." 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 (1996)). "However,
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we consider de novo whether those facts implicate the Fourth
Amendment and, if so, whether the officers unlawfully infringed
upon an area protected by the Fourth Amendment." Shaver v.
Commonwealth, 30 Va. App. 789, 794-95, 520 S.E.2d 393, 396
(1999).
We note first that the Fourth Amendment does not proscribe
all searches and seizures, only those which are unreasonable.
Terry v. Ohio, 392 U.S. 1, 9 (1968). "This reasonableness
requirement generally prohibits the warrantless entry of a
person's home or motel room, in which one has a reasonable
expectation of privacy . . . . '[It] does not apply, however, 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 over the premises.'"
Jones, 16 Va. App. at 727, 432 S.E.2d at 518-19 (quoting
Illinois v. Rodriguez, 497 U.S. 177, 181 (1990)).
Moreover, even if the party giving consent does not have
actual authority to consent, "apparent authority" may be
sufficient, if the circumstances would lead a reasonable officer
to conclude that the person providing consent had the requisite
authority to do so. 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)). Thus, as in
all Fourth Amendment cases, the touchstone here is
"reasonableness under the facts and circumstances of the case."
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Weathers v. Commonwealth, 32 Va. App. 652, 658, 529 S.E.2d 847,
850 (2000); see also Deer v. Commonwealth, 17 Va. App. 730, 734,
441 S.E.2d 33, 36 (1994) (holding that inquiry must focus on
objective reasonableness rather than on officer's subjective
intent). Indeed, in Rodriguez, the United States Supreme Court
held:
[a]s 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 . . . '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.
497 U.S. at 188-89 (quoting Terry, 392 U.S. at 21-22). 1
In his brief on appeal, Bryant's sole "Question Presented"
is that the trial court erred "in denying [Bryant's] motion to
suppress because of inadmissible hearsay evidence." The record
reflects that the only relevant hearsay objection Bryant raised
was with regard to Officer Arnold's testimony that Klepsattel
1
In Rodriguez the United States Supreme Court also
admonished that "law enforcement officers may [not] always
accept a person's invitation to enter the premises. Even when
the invitation is accompanied by an explicit assertion [of
authority], the surrounding circumstances could conceivably be
such that a reasonable person would doubt its truth and not act
upon it without further inquiry." 497 U.S. at 188.
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told him "Yes, you can search the whole place." Accordingly,
Bryant argues the Commonwealth failed to prove valid consent to
search the room, because the Commonwealth's only evidence of
consent came through the hearsay testimony of Officer Arnold. We
disagree.
Professor Charles E. Friend states, "the simplest definition
of hearsay [is] 'testimony of a witness in court about statements
made out of court[,] by another person.'" Charles E. Friend, The
Law of Evidence in Virginia § 18-1 (5th ed. 1999). Similarly,
the Supreme Court of Virginia has defined hearsay as "'[a] term
applied to that species of testimony given by a witness who
relates, not what he knows personally, but what others have told
him, or what he has heard said by others,'" Cross v.
Commonwealth, 195 Va. 62, 74, 77 S.E.2d 447, 453 (1953) (quoting
Black's Law Dictionary (De Luxe Edition), p. 882), and "testimony
which consists [of] a narration by one person of matters told him
by another." Williams v. Morris, 200 Va. 413, 417, 105 S.E.2d
829, 832 (1958).
However, "[i]f the declaration is offered solely to show
that it was uttered, without regard to the truth or falsity of
its content, the declaration is not excluded by the hearsay
rule." Evans-Smith v. Commonwealth, 5 Va. App. 188, 197, 361
S.E.2d 436, 441 (1987). Therefore, unless a statement is offered
to show its truth, the out-of-court statement is not subject to
the rule against hearsay and is admissible if relevant. Church
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v. Commonwealth, 230 Va. 208, 212, 335 S.E.2d 823, 826 (1985).
"Determining whether a statement is offered to prove the truth or
falsity of the matter asserted requires an analysis of the
purpose for which the statement is offered into evidence." Swain
v. Commonwealth, 28 Va. App. 555, 559, 507 S.E.2d 116, 118
(1998).
Bryant avers that Klepsattel's out-of-court statement to
Officer Arnold was offered by the Commonwealth to prove the truth
of the matter asserted, that being the fact that Klepsattel
consented to the search; thus, he argues Officer Arnold's
testimony to that effect constituted inadmissible hearsay.
However, as set forth in the above discussion of Fourth Amendment
jurisprudence, the factual truth of Kelpsattel's statement
providing consent was irrelevant. Instead, the pertinent inquiry
before the trial court was whether the facts available to Officer
Arnold, at that time, would have warranted a person of reasonable
caution to believe that Klepsattel could and did, consent to the
search. See Rodriguez, 497 U.S. at 188-89.
On this record, we find that the trial court properly
reasoned that Klepsattel's statement was not introduced to
establish the truth of the statement, but only to establish that
the statement was made. The making of the statement, and not the
truth of the statement, provides a context for the validity of
Officer Arnold's subsequent search. Indeed, because the relevant
analysis turned upon the reasonableness of Officer Arnold's
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actions, the only necessary issue before the court was whether
the statement was in fact made, and whether in conjunction with
the other circumstances, a reasonable officer would have
concluded that he had been granted valid consent to search the
room, by someone competent to grant such consent. See Rodriguez,
497 U.S. at 185-86 ("[W]hat is generally demanded of the many
factual determinations that must regularly be made by agents of
the government . . . is not that they always be correct, but that
they always be reasonable."). Therefore, because Klepsattel's
statement was offered for the mere purpose of explaining and
providing a context for Officer Arnold's subsequent conduct in
searching the room, we find that Officer Arnold's in-court
testimony relaying the statement did not constitute hearsay. See
Hamm v. Commonwealth, 16 Va. App. 150, 156, 428 S.E.2d 517, 521
(1993) ("It is well established that if a statement is offered,
not for its truth, but to explain the declarant's conduct, or
that of the person to whom the statement was made, the statement
is not objectionable as hearsay.").
Bryant also contends that the trial court erred in finding
Klepsattel possessed the requisite "apparent authority" to grant
consent to search the room. Once again, we disagree.
We first note Bryant stipulated that the room was registered
to him and Klepsattel. That stipulation proved that Klepsattel
had actual authority to consent to a search. See United States
v. Matlock, 415 U.S. 164, 171 (1974) ("[P]ermission to search
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[may be] obtained from a third party who possesse[s] common
authority over or other sufficient relationship to the premises
or effects sought to be inspected."); see also Mitchell v.
State, 391 So. 2d 1069 (Ala. Crim. App. 1980) (holding police can
lawfully search a motel room without a warrant pursuant to the
consent of the person in whose name the room is registered);
Gildea v. State, 360 S.E.2d 657 (Ga. Ct. App. 1987) (holding that
an individual who shared a motel room with the accused, could
validly consent to the warrantless search of the room).
Nevertheless, the evidence likewise established that at the
time he conducted the search, Officer Arnold reasonably believed
that Klepsattel possessed the requisite authority to offer
consent. When Officer Arnold arrived at the hotel room, he
observed that Klepsattel was an occupant of the room. Klepsattel
told Officer Arnold that the room was registered in his name, and
none of the other occupants of the hotel room contradicted his
statement. In addition, when Arnold asked for permission to
search the room, Klepsattel responded as if he had authority over
the premises, stating, "Yes, you can search the whole place."
Indeed, no evidence available to Officer Arnold at that time
suggested that Arnold's reliance upon Klepsattel's assertion
would have been misplaced. Thus, because the relevant issue
before the trial court was whether the totality of the
circumstances would have "'warrant[ed] a man of reasonable
caution in the belief'" that Klepsattel, the consenting party,
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had authority over the premises, we find there was more than
sufficient evidence to support the trial court's determination
that Officer Arnold reasonably believed Klepsattel had apparent
authority to consent to a search of the room. Rodriguez, 497
U.S. at 188-89 (quoting Terry, 392 U.S. at 21-22).
Accordingly, we find that Officer Arnold's testimony
concerning Klepsattel's statement was properly admitted and, in
conjunction with the other circumstances, it established his
reasonable belief that Klepsattel possessed the requisite
authority to consent to a search of the room. Therefore, we find
no error in the trial court's ruling denying Bryant's motion to
suppress and, we affirm the trial court's judgment.
Affirmed.
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