McLaughlin v. Commonwealth

65 Va.App. 427

778 S.E.2d 529

Robert Lee McLAUGHLIN, Jr.

v.COMMONWEALTH of Virginia.

Record No. 1187–14–1.

Court of Appeals of Virginia, Norfolk.

Nov. 17, 2015.

Aleasa D. Leonard, Senior Assistant Public Defender, for appellant.

Steven A. Witmer, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Opinion

BEALES, Judge.

Robert L. McLaughlin, Jr. (appellant) was convicted of one count of felony possession of a firearm by a convicted felon in violation of Code § 18.2–308.2. Appellant argues on appeal that the trial court erred when it denied appellant's motion to suppress the evidence because the probation officer had no authority to enter appellant's house or bedroom—and was otherwise not in a position to lawfully see the gun. For the reasons below, we affirm the ruling of the trial court.

I. Background

We consider the evidence on appeal “ ‘in the light most favorable to the Commonwealth as we must since it was the prevailing party’ ” in the trial court.

Beasley v. Commonwealth,60 Va.App. 381, 391, 728 S.E.2d 499, 504 (2012)(quoting Riner v. Commonwealth,268 Va. 296, 330, 601 S.E.2d 555, 574 (2004)). On October 22, 2013, prior to his trial for possession of a firearm by a convicted felon, appellant moved to suppress evidence obtained pursuant to a probation transfer investigation conducted by his probation officer.

In April 2012, appellant was put on supervised probation in Virginia Beach—soon after his release from incarceration for a previous offense. Appellant executed a document with the Virginia Beach Adult Probation intake workers, which in relevant part states, “I will permit the Probation and Parole Officer to visit my home and place of employment.” The probation officer testified that it was office procedure to provide this document to a new probationer—and for someone in the office to review the document with the probationer. At some point during his probationary term, appellant moved to Norfolk, and his supervision was transferred to Norfolk Adult Probation. Appellant's Norfolk probation officer went to visit appellant's reported location, and found that it was an invalid address. Appellant called his Norfolk probation officer on October 31, 2012 and told her that he and his sister were living in a trailer located in Virginia Beach. Appellant's supervision was then transferred back to Virginia Beach Adult Probation.

On November 8, 2012, a Virginia Beach probation officer, Tiffany Franklin (Officer Franklin),²accompanied by a surveillance officer, went to appellant's reported address in Virginia Beach to conduct a transfer investigation. Prior to conducting this visit, Officer Franklin had never met appellant. She described the transfer investigation in the following manner:

We go out to the home, view the home. If we can, speak with the person or speak with someone who is at the residence to verify that person does, in fact, reside there.

Usually it entails going in, viewing the home, making sure that they are really there, not just receiving mail like a lot of folks.... I had one where it was an empty lot that I went out to; so that's why I'm asking.

When Officer Franklin arrived, an adult female, Alicia Young–Sanchez (Young), answered the door and confirmed to Officer Franklin that appellant lived there, but stated that he was at work at the time. Young allowed the probation officer inside the trailer, identifying herself as Alicia. Officer Franklin noted that Young had two guests visiting inside the trailer with her—another woman and a child. Officer Franklin noticed that the two women were “kind of hanging out,” chatting, and having a drink. Officer Franklin did not observe any luggage belonging to Young, or any other indicators that she was only an overnight guest. Instead, Officer Franklin said, “To my understanding I have written in my notes that [Young] was the homeowner....” Appellant's landlord testified at the suppression hearing that Young was not on the official lease although this information was not available to Officer Franklin at the time she conducted her transfer investigation. Appellant put on no other evidence to rebut the assertion that Young lived at the residence. The trial court found that Young lived in the trailer, could enter and leave as she pleased, and could have guests over.

Before Officer Franklin went through the front door into the home's main room, she asked Young if she could view appellant's bedroom and stated that Young assented. As Officer Franklin testified, “I asked to view his bedroom. She [Young] said that was fine.” Young went across the room and opened the door to the bedroom. Upon opening the door and going into the bedroom, Young reacted in surprise. Officer Franklin came up and looked past her into the bedroom, and saw someone she later identified as appellant asleep in the bed. Young then went over and awakened appellant. Officer Franklin testified that, as appellant awakened, he glanced at the stand beside his bed, which caught her attention. She then looked as well, and saw an open beer, a pistol handgun, a pair of jeans, and a baseball cap lying on the stand. At no point did appellant or Young tell Officer Franklin to leave the room. Appellant told Officer Franklin that the beer, jeans, and the hat were his and that his prints might be on the gun, but that the gun was not his.

On December 18, 2013, after allowing both parties time to brief the issue, the trial court found:

The court, weighing the evidence that was presented, indicated that Ms. Snachez[sic] Young lived in the trailer, that she could enter and leave as she pleased, she could have guests over, and that she had the authority to enter the defendant's room. From the evidence, it appears, and the court finds, that it was reasonable for Ms. Franklin to believe that she had authority to consent to the search.

II. Analysis

Standard of Review

“Since the constitutionality of a search and seizure under the Fourth Amendment involves questions of law and fact, we give deference to the factual findings of the trial court but independently decide whether, under the applicable law, the manner in which the challenged evidence was obtained satisfies constitutional requirements.” Jackson v. Commonwealth,267 Va. 666, 672–73, 594 S.E.2d 595, 598 (2004)(citing McCain v. Commonwealth,261 Va. 483, 490, 545 S.E.2d 541, 545 (2001)).

General Fourth Amendment Principles

The Fourth Amendment protects individuals from unreasonable searches and seizures in their home. “[A] search and seizure conducted without a warrant issued upon probable cause is per seunreasonable.” Crosby v. Commonwealth,6 Va.App. 193, 197, 367 S.E.2d 730, 733 (1988). However, it will not be unreasonable when law enforcement officers perform a search based on consent. Schneckloth v. Bustamonte,412 U.S. 218, 219, 93 S.Ct. 2041, 2044, 36 L.Ed.2d 854 (1973). In fact, the Supreme Court has stated,

In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own. Police officers act in full accord with the law when they ask citizens for consent. It reinforces the rule of law for the citizen to advise the police of his or her wishes and for the police to act in reliance on that understanding.

United States v. Drayton,536 U.S. 194, 207, 122 S.Ct. 2105, 2113–14, 153 L.Ed.2d 242 (2002).

Consent may be obtained either from the individual whose property is being searched or from a third party with common authority over the premises. Jones v. Commonwealth,16 Va.App. 725, 727, 432 S.E.2d 517, 518–19 (1993). The standard for determining whether a third party has actual authority to consent is the following:

The authority which justifies the third-party consent ... rests ... on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

United States v. Matlock,415 U.S. 164, 171 n. 7, 94 S.Ct. 988, 993 n. 7, 39 L.Ed.2d 242 (1974).

“[E]ven if that party does not have actual authority to consent, apparent authority may be sufficient [to justify a search without a warrant] if the facts surrounding the situation would have led a reasonable officer to conclude that the person providing consent had the requisite authority.” Jones,16 Va.App. at 727–28, 432 S.E.2d at 519(citing Illinois v. Rodriguez,497 U.S. 177, 181, 110 S.Ct. 2793, 2797–98, 111 L.Ed.2d 148 (1990)). Said another way, “[w]hether apparent authority exists is an objective, totality-of-the-circumstances inquiry into whether the facts available to the officers at the time they commenced the search would lead a reasonable officer to believe the third party had authority to consent to the search.”

Glenn v. Commonwealth,275 Va. 123, 132–33, 654 S.E.2d 910, 914–15 (2008)(quoting United States v. Andrus,483 F.3d 711, 716–17 (10th Cir.2007)).

Young's Apparent Authority to Consent to Entry Into the House

Courts have long since recognized that “ ‘[i]nherent in the very nature of probation is that probationers “do not enjoy the absolute liberty to which every citizen is entitled,’ ” ‘but only ... conditional liberty properly dependent on observance of special [probation conditions].’ ” Murry v. Commonwealth,288 Va. 117, 123–24, 762 S.E.2d 573, 577 (2014)(first quoting United States v. Knights,534 U.S. 112, 119, 122 S.Ct. 587, 592, 151 L.Ed.2d 497 (2001); and then quoting Morrissey v. Brewer,408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)) (bracketed phrase in original quote). In this case, appellant signed a probation condition allowing probation officers to engage in “home visits.” Officer Franklin had already received this signed condition when she went to visit appellant. While the Supreme Court of Virginia has not articulated exactly what a “home visit” does...