Edward Lindsay Yates v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Frank
Argued at Alexandria, Virginia
EDWARD LINDSAY YATES
MEMORANDUM OPINION * BY
v. Record No. 1289-99-4 JUDGE JERE M. H. WILLIS, JR.
APRIL 4, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
James H. Chamblin, Judge
Nicholas R. VanBuskirk (Jud A. Fischel, P.C.,
on brief), for appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his conviction of possession of a firearm by
a previously convicted felon, in violation of Code § 18.2-308.2,
Edward Lindsay Yates contends that the trial court erred in
denying his motion to suppress the firearms found upon a
warrantless search of his residence. Finding that the search
was based on a valid and continuing consent, we affirm the
judgment of the trial court.
The facts are not in dispute.
On August 11, 1998, Warrenton Police Officers Steve Alleman
and Joseph Spina arrested Yates pursuant to an outstanding
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
arrest warrant. Yates consented for them to search his
residence and signed a consent to search form, which contained
no time limitations. The officers accompanied Yates to his home
and commenced the search. The officers asked Yates whether he
possessed a gun. Yates produced a pellet gun, which the
officers seized. Officer Spina then took Yates to the
magistrate's office to process the initial arrest.
After Yates and Officer Spina left, Officer Alleman left
the residence, but remained in "the general area . . . standing
on the street in front of the house." Twenty minutes later,
Officer Alleman received word from the magistrate's office that
additional weapons might be in the house. Based "[o]n the
consent [Yates] had given prior," he reentered the residence and
renewed the search, being joined soon thereafter by Officer
Spina. During the second search, Officer Spina found a shotgun
and two pistols.
The trial court denied Yates' motion to suppress the
shotgun and pistols, holding that Yates' consent authorized the
second search. It convicted him of possession of a firearm by a
previously convicted felon, in violation of Code § 18.2-308.2,
and sentenced him to one year and eleven months imprisonment.
Yates contends that the trial court erred in denying his
motion to suppress. He argues that the second search exceeded
the scope of his original consent and was therefore
unreasonable.
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No search warrant authorized either the initial or second
search. Under well-settled principles, a warrantless search is
"'"per se unreasonable under the Fourth Amendment -- subject
only to a few specifically established and well-delineated
exceptions."'" Cantrell v. Commonwealth, 7 Va. App. 269, 282,
373 S.E.2d 328, 334 (1988) (citations omitted). "However,
searches made by the police pursuant to a valid consent do not
implicate the Fourth Amendment." McNair v. Commonwealth, 31 Va.
App. 76, 82, 521 S.E.2d 303, 306 (1999) (en banc).
Yates' consent to search was freely and voluntarily given.
See Commonwealth v. Rice, 28 Va. App. 374, 378, 504 S.E.2d 877,
879 (1998). The issue, therefore, is whether the officers
exceeded the scope of that consent when they entered his
residence the second time. Yates argues that his consent
authorized only the first search and did not extend to authorize
the second. See Grinton v. Commonwealth, 14 Va. App. 846,
850-51, 419 S.E.2d 860, 862 (1992). He relies on Thompson v.
Louisiana, 469 U.S. 17 (1984). In Thompson, the police entered
a residence after being called to render aid to a crime victim
and to secure the premises from the suspect. Thirty-five
minutes after the victim was hospitalized, the police reentered
the premises and conducted a two hour "exploratory search."
Finding that the purpose of the second search was unrelated to
the purpose of the initial entry, the Supreme Court held the
warrantless second search to be unreasonable.
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This case, however, rises out of a single incident. Each
entry by the police into the residence was based upon Yates'
consent. "The touchstone of the Fourth Amendment is
reasonableness." Florida v. Jimeno, 500 U.S. 248, 250 (1991).
Whether such a search is reasonable requires an objective
inquiry into the totality of the circumstances and as to whether
those circumstances would lead a reasonable person to believe
and act as the officers did. See id. at 251; Johnson v.
Commonwealth, 26 Va. App. 674, 688, 496 S.E.2d 143, 150 (1998).
We hold that Officer Alleman acted reasonably in reentering the
house based upon the unlimited consent given by Yates just a
short time before. The temporal nexus between the two searches
and their mutual bases rendered reasonable the officers' belief
that Yates' consent remained valid.
Because the record supports the trial court's finding that
the search was reasonable, we affirm the judgment of the trial
court.
The judgment of the trial court is affirmed.
Affirmed.
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Frank, J., dissenting.
"[T]he Fourth Amendment . . . protects
people from unreasonable government
intrusions." United States v. Chadwick, 433
U.S. 1, 7 (1977). "A consensual search is
reasonable if the search is within the scope
of the consent given." Grinton v.
Commonwealth, 14 Va. App. 846, 850, 419
S.E.2d 860, 862 (1992). The United States
Supreme Court has articulated the standard
for measuring the scope of an individual's
consent under the Fourth Amendment to be
"'objective' reasonableness--what would the
typical reasonable person have understood by
the exchange between the officer and the
suspect?" Florida v. Jimeno, 500 U.S. 248,
251 (1991). Furthermore, the Court stated
that, "[t]he scope of a search is generally
defined by its expressed object." Id.Bolda v. Commonwealth, 15 Va. App. 315, 316-17, 423 S.E.2d 204,
205-06 (1992).
While I agree with the majority that appellant's consent
was voluntary, I disagree with the conclusion that the consent
was unlimited in scope. The officers asked appellant whether he
possessed a gun. When appellant produced the pellet gun,
Officer Alleman testified that the officers said, "That must be
it." Appellant then was placed under arrest and was taken to
the magistrate's office.
Under the "objective reasonableness" test, Officer Alleman
did not act reasonably in reentering the house. After appellant
produced the pellet gun, the officers arrested appellant and
removed him from the premises, thereby accomplishing their
stated objective. The search to which appellant consented was
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concluded. The second search was not a continuation or
extension of the first search. In fact, the basis for the
second search was information acquired after the first search
was completed and after appellant had been removed from the
premises.
Appellant consented to the search while he was physically
present in his home. He was removed from his home prior to the
second search. It is not objectively reasonable for the police
to assume that appellant would be agreeable to another search
when he was not present. Clearly, appellant saw no need to
withdraw or limit his consent when he and Officer Spina left the
premises. Objectively, appellant could assume that the search
was concluded. The fact that another officer remained in the
vicinity is of no moment. There is nothing in the record to
suggest that appellant knew that the officer remained or that
the officer intended to further search the premises.
Therefore, I cannot agree that the record supports the
trial court's finding that the second search of appellant's home
was reasonable as required by the Fourth Amendment.
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