John Emory Redding v Commonwealth of Virginia

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COURT OF APPEALS OF VIRGINA

Present: Judges Bray, Frank and Senior Judge Hodges
Argued at Chesapeake, Virginia

J OHN EMORY REDDI NG
MEMORANDUM OPI N ON’ BY
Vv. Record No. 0542- 99- 1 J UDGE RICHARD S. BRAY
MAY 23, 2000
COMVONWEALTH OF VI RGN A

FROM THE CI RCU'T COURT OF THE CITY OF VIRGINA BEACH
A. Bonwll Shockley, Judge

Edward W Vébb, Assistant Public Defender,
for appellant.

Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

John Enory Redding (defendant) appeals his convictions for
possession of marijuana and cocaine. F€ conplains that the
trial court erroneously denied his notion to suppress evidence
discovered by police during the consensual search of a
residence. Finding no error, we affirmthe trial court.

The parties are fully conversant wth the record, and this
nenorandum opinion recites only those facts necessary to a
disposition of the appeal.

On appeal froma notion to suppress evidence, "we consi der

the entire record," Patterson v. Connonvwealth, 17 Va. App. 644,

* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

648, 440 S.E.2d 412, 415 (1994), viewing the evidence in the
light most favorable to the prevailing party below, the
Commonwealth in this instance. 	See Shaver v. Commonwealth, 30
Va. App. 789, 794, 520 S.E.2d 393, 396 (1999). 	"When reviewing
a Fourth Amendment suppression ruling, 'we are bound by the
trial court's findings of historical fact unless "plainly wrong"
or without evidence to support them.' 	However, 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." 	Id. at 794-95, 520 S.E.2d
at 396 (citations omitted).
I.
During the investigation of several burglaries, a "suspect"
advised police that "some of the stolen property" was located in
"her room" at her mother's home. 	Accordingly, Virginia Beach
Police Sergeant J.B. Spry "responded" to the residence and was
received by the suspect's mother, the "homeowner." 	Spry
"explained . . . that [her] daughter was involved in these
burglaries[,] [had] indicated that . . . some of the property
was in her [bed]room and asked [the mother] for permission to
search the room in the house and recover stolen property." 	The
mother consented and "showed [Spry] to [the] bedroom . . .
occupied by her daughter." 	The record does not disclose the age
of the daughter, the circumstances of her occupancy, or her
whereabouts.
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Spry found the room "in disarray," with "property and
clothing all over the place." 	While Spry was "looking around"
"trying to figure out where to start," defendant, fully clothed,
entered the room, identified himself as John Redding and
"attempted to remove a pair of pants that was in a pile of
clothing." 	The record is silent with respect to defendant's
relationship to the premises generally and to the room, together
with its contents, in particular.
Spry explained his "reason for being there" and advised
defendant that he "wasn't going to allow him to remove anything
that could possibly be part of the burglary." 	Defendant then
"grabbed a handful of papers" "protruding from [a] pocket" in
the pants, which Spry "took away from him immediately," examined
and returned to defendant. 	When defendant declared that "he
wanted his pants," Spry "advised . . . he could have his pants
just as soon as [Spry] ma[de] sure that there was nothing in the
pants that would have been part of the burglary."1 A search of
the trousers by Spry revealed the offending marijuana and
cocaine. 	The record provides no details of the circumstances
that facilitated the actual search.
Defendant does not dispute that the suspect's mother was
the owner of the home, consented to the search of the residence,
and escorted police to her daughter's room. 	Nevertheless, he
1 Property stolen in the burglaries included "jewelry . . .,
personal papers, checks – all different types of items."
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maintains that such consent did not authorize a search of the
trousers, absent his contemporaneous authorization.
II.
"The Fourth Amendment to the United States Constitution
protects 'the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures.' 	These protections apply to people, not places[.]"
Johnson v. Commonwealth, 26 Va. App. 674, 682, 496 S.E.2d 143,
147 (1998). 	The
reasonableness requirement generally
prohibits the warrantless entry of a
person's home . . ., 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 v. Commonwealth, 16 Va. App. 725, 727, 432 S.E.2d 517,
518-19 (1993) (quoting Illinois v. Rodriguez, 497 U.S. 177, 181
(1990) (citations omitted)).
Thus, "the consent of one who possesses common authority
over premises or effects is valid as against the absent,
nonconsenting person with whom that authority is shared."
United States v. Matlock, 415 U.S. 164, 170 (1974). 	However,
Matlock does not "suggest[] that the validity of a third party
consent is dependent upon the absence" of an accused sharing
authority over the premises and effects. 	Walls v. Commonwealth,
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2 Va. App. 639, 651, 347 S.E.2d 175, 182 (1986). 	"[W]here the
defendant is present and not objecting, the police are not
thereby prevented from relying on a consent to search given by a
third party with sufficient authority." 	Id.; see Fogg v.
Commonwealth, 31 Va. App. 722, 727-28, 525 S.E.2d 596, 599
(2000) (despite objection by person with "shared possession and
control" of property, others with "'authority over the
premises'" may consent to search (citation omitted)).
Accordingly, defendant's initial contention that the
homeowner's consent, under the instant circumstances, was
insufficient to justify a search of the room and contents,
without further authority from him, is without merit.
Similarly, defendant's related argument that the search of the
pants was "illegal" because Spry "failed to honor . . .
defendant's refusal to consent" is incorrectly predicated upon
the necessity for such consent. 	Defendant does not argue and
the record does not reflect that he expressed to Spry an
objection to the search, rather, that he did not consent to it.
See id.
We acknowledge that circumstances may arise that trump
third party consent, requiring the additional consent of persons
having an array of diverse privacy interests in a premises or
related contents. 	However, we are unable to find such
circumstances on the instant record and expressly decline to
speculate upon such issues.
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Accordingly, we affirmthe decision of the trial court.

Af firned.