Betty Shearin Albis v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Frank and Humphreys
Argued at Richmond, Virginia
BETTY SHEARIN ALBIS
MEMORANDUM OPINION * BY
v. Record No. 2509-99-2 JUDGE ROBERT J. HUMPHREYS
OCTOBER 17, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Gary A. Hicks, Judge
J. Kelly Haley for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Betty Shearin Albis appeals her conviction after a bench
trial for possession of marijuana. Albis claims that the trial
court erred in refusing to suppress evidence found in her boarding
house room, based upon her argument that the police officer's
search of the room violated her Fourth Amendment rights. We
disagree and for the reasons that follow, affirm her conviction.
At the trial court level, the only objection that Albis
raised concerned the validity of her consent. "In order to be
considered on appeal, an objection must be timely made and the
grounds stated with specificity. Rule 5A:18. To be timely, an
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
objection must be made when the occasion arises - at the time
the evidence is offered or the statement made." Marlowe v.
Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d 167, 168 (1986)
(citing Ingram v. Commonwealth, 1 Va. App. 335, 341, 338 S.E.2d
657, 660 (1986)). The Court of Appeals will not consider an
issue that was not in dispute below, nor will we consider an
argument not offered before the trial court. See Jacques v.
Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991);
Green v. Warwick Plumbing and Heating Corp., 5 Va. App. 409,
412-13, 364 S.E.2d 4, 6 (1988). Accordingly, we do not reach
any issues newly raised by Albis in her brief on appeal. See
Rule 5A:18.
Before trial, Albis moved to suppress the marijuana found
in her boarding house room, claiming that it was obtained in
violation of the United States Constitution and Article I,
Section 10 of the Virginia Constitution. Specifically, she
claimed that she gave Officer Ronson her consent to search her
room only after he "threatened" to obtain a search warrant.
According to Albis, this made her consent coerced and therefore,
vitiated.
During the hearing on the motion, Officer Ronson testified
that after Albis and her husband at first refused to give
consent for the search of their room, he informed them "[he] was
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holding [them] for investigation intention [sic], 1 and [he]
advised them [he] was getting a Search Warrant." Officer Ronson
later testified that he had explained to the Albises that he
"was going to apply for a Warrant and that they would stay there
with the other officers that accompanied [him] until such time
as [he] returned with the Warrant, or obviously if [he] didn't
return, then it would be over." Ms. Albis then asked Officer
Ronson how much time this process would take and he responded
"somewhere total time for everything about three hours." Ms.
Albis then gave him her consent to search the room.
When reviewing the trial court's ruling rejecting a
defendant's motion to suppress evidence, this Court considers
evidence in the light most favorable to the Commonwealth. See
Green v. Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138,
139-40 (1994). In issues of search and seizure "[t]he
voluntariness of the consent is a question of fact to be
determined by the trial court and must be accepted on appeal
unless clearly erroneous." Limonja v. Commonwealth, 8 Va. App.
532, 540, 383 S.E.2d 476, 481 (1989). However, "[t]he burden
rests with the Commonwealth to demonstrate the lack of duress."
Deer v. Commonwealth, 17 Va. App. 730, 734-35, 441 S.E.2d 33, 36
(1994).
[I]n Bumper v. North Carolina, 391 U.S. 543(1968), the United States Supreme Court held
1
We presume that Officer Ronson was referring to
"investigative detention."
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that the Fourth Amendment right to be free
from unreasonable seizures may be waived,
orally or in writing, by voluntary consent
to a warrantless search of a person,
property or premises. Implicit in the
waiver of the warrant requirement is the
waiver of the requirement of probable cause.
. . . The test of a valid consent search is
whether it was "freely and voluntarily
given." . . . The question of whether a
particular "consent to a search was in fact
voluntary or was the product of duress or
coercion, express or implied, is a question
of fact to be determined from the totality
of all the circumstances."
Id. (citations omitted). We have held that "[c]onsent is not
voluntary if given to police falsely claiming to have a warrant
or serving an invalid warrant. [Additionally, a] suspect does
not consent to a search by [simply] acquiescing to a claim of
lawful authority; however, merely informing a suspect that
police can obtain a warrant does not vitiate consent." Id. at
735, 441 S.E.2d at 36 (emphasis added).
Here, Albis contends that her consent was coerced because
the police officer "threatened" that he would get a warrant to
search her room. However, this claim is not supported by the
facts proven in the trial court. Officer Ronson testified that
he stated he was holding Albis for investigative detention, and
advised Albis that he would seek a search warrant. Officer
Ronson further testified that in conveying this information to
Albis, he had explained that he "was going to apply for a
Warrant and that they would stay there with the other officers
that accompanied [him] until such time as [he] returned with the
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Warrant, or obviously if [he] didn't return, then it would be
over." (Emphasis added). 2
As stated above, "merely advising [Albis] that a search
warrant could be obtained is not coercion. Furthermore, any
factual disputes about what occurred at the scene and whether
[Officer Ronson] coerced the defendant were resolved by the
trial court and, since they are not [clearly erroneous], cannot
be disturbed on appeal." Bosworth v. Commonwealth, 7 Va. App.
567, 571-72, 375 S.E.2d 756, 758-59 (1989) (citations omitted)
(emphasis added).
Finally, as stated in Deer, "implicit in the waiver of the
warrant requirement is the waiver of the requirement of probable
cause." Deer, 17 Va. App. at 734-35, 441 S.E.2d at 36. Since
we hold that Albis validly consented to the search, we need not
reach any issue as to probable cause.
Affirmed.
2
At trial, Albis raised no objection to the legality of
Officer Ronson's intent to detain her and her husband. Thus,
for the reason stated above, we do not address this issue on
appeal.
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