Commonwealth v. Placido Jeffrey Nunez, etc.

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Overton
Argued by Teleconference
COMMONWEALTH OF VIRGINIA
v. Record No. 0392-96-2
JOANNA RODRIGUEZ
MEMORANDUM OPINION * BY
-and- JUDGE JERE M. H. WILLIS, JR.
AUGUST 6, 1996
COMMONWEALTH OF VIRGINIA
v. Record No. 0393-96-2
PLACIDO JEFFREY NUNEZ, A/K/A
PLACIDO JEFFREY
FROM THE CIRCUIT COURT OF HENRICO COUNTY
James E. Kulp, Judge
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on briefs), for appellants.
Jeffrey L. Everhart (Rice & Everhart, on
brief), for appellee Joanna Rodriguez.
J. Bradley Davis (Davis & Morgan, on brief),
for appellee Placido Jeffrey Nunez, a/k/a
Placido Jeffrey.
On appeal from the trial court's suppression of evidence
found upon the search of a motel room, the Commonwealth contends
that the trial court erred in holding that the occupant's consent
to the search was coerced by the police. We disagree and affirm
the judgments of the trial court.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I.
As a threshold issue, the Commonwealth contends that Ms.
Rodriguez lacks standing to object to the officers' search of the
room because she was not the registered occupant. We reject this
argument. As stipulated by the Commonwealth's Attorney, Ms.
Rodriguez was a lawful occupant of the room. As such, she had a
reasonable expectation of privacy. See Minnesota v. Olson, 495
U.S. 91, 98-100 (1990).
II.
[I]n reviewing a trial court's ruling on a
suppression motion, we consider the evidence
in the "light most favorable to . . . the
prevailing party below," . . . and the
decision of the trial judge will be disturbed
only if plainly wrong.
Hetmeyer v. Commonwealth, 19 Va. App. 103, 105, 448 S.E.2d 894,
896 (1994).
While noting that it found no "misbehavior" on the part of
the police, the trial court held that their persistence "went
beyond reason, and that they overbore the rights of the
defendants in this case." The trial court found that Nunez's
consent to the entry of the police into the motel room was not
voluntary. The record supports this holding.
When Officer Koushel first approached the motel room, he
could see a light inside. Upon his initial knock on the door,
the light was extinguished. Nunez peered through the window.
Koushel gave his name and displayed his badge. The occupants of
the room did not open the door. The police telephoned the room
- 2 -
twice. At the first call, the telephone receiver in the room was
lifted but no one spoke. The receiver was then replaced. The
second call was unanswered. Only after the officers had knocked
on the door repeatedly for fifteen minutes did Nunez open the
door and admit them to the room. This record supports a finding
that by extinguishing the light, refusing to talk on the
telephone, and failing to open the door, the occupants of the
room expressed their unwillingness to talk to or admit the
officers. Thus, the record supports the trial court's conclusion
that the officers' repeated and persistent demand for entry
overbore the ability of the room's occupants to resist that
demand. See United States v. Wilson, 953 F.2d 116 (4th Cir.
1991).
The judgments of the trial court are affirmed.
Affirmed.
- 3 -