Glenn v. Commonwealth

642 S.E.2d 282 (2007) 49 Va. App. 413

Keith Isiah GLENN
v.
COMMONWEALTH of Virginia.

Record No. 2390-04-2.

Court of Appeals of Virginia, Richmond.

March 20, 2007.

Kevin Purnell (Dinkin & Purnell, PLLC, on briefs), Richmond, for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General; Josephine F. Whalen, Assistant Attorney General, on brief), for appellee.

Present: FELTON, C.J., and BENTON, ELDER, FRANK, HUMPHREYS, CLEMENTS, KELSEY, HALEY, PETTY and BEALES, JJ.

UPON REHEARING EN BANC

D. ARTHUR KELSEY, Judge.

Following the entry of a conditional guilty plea, the trial court convicted Keith I. Glenn of robbery and conspiracy to commit robbery. On appeal, Glenn argues that the trial court erred in denying his motion to suppress. A divided panel of this Court agreed with Glenn and vacated his convictions. Glenn v. Commonwealth, 48 Va.App. 556, 633 S.E.2d 205 (2006). At the Commonwealth's request, we set aside our panel opinion and reconsidered the matter en banc. Finding no error in the trial court's decision, we now affirm Glenn's convictions.

I.

On appeal from a denial of a suppression motion, we review the evidence "in the light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences." Kyer v. Commonwealth, 45 Va.App. 473, 477, 612 S.E.2d 213, 215 (2005) (en banc) (citation omitted).

Believing Glenn had just robbed a man, police officers went to the home of Glenn's grandparents where Glenn had been living for about two months. Glenn answered the door and was immediately arrested. The officers asked Glenn's grandfather for permission to search his home. Unable to speak because of a medical condition, the grandfather nodded his head in agreement. The officers then asked the grandfather if Glenn paid rent. The grandfather shook his head no. When asked if Glenn was in fact his grandson, the grandfather nodded yes.

The officers went to a bedroom identified by Glenn as the "room he slept in" and found, among other things, boxes containing his grandmother's clothing. The officers then went to a second room, identified by Glenn as a room that he also slept in on occasion. There, the officers discovered a backpack on the floor. Nothing suggested to the officers the backpack was locked, used for any particular purpose, or owned by any particular person. The officers opened the backpack and found the robbery victim's cell phone. When questioned later about the robbery, Glenn gave police a full confession.

Prior to trial, Glenn filed a motion to suppress seeking to exclude from evidence the cell phone found in the backpack.^[1] At the suppression hearing, Glenn's grandmother testified that the backpack belonged to Glenn. The grandmother, however, conceded that Glenn did not pay rent. Nor did he have exclusive access to, or control over, any room in the house. She agreed to the characterization of the first room searched as "Keith's room" and "his bedroom." The woman's clothes in Glenn's bedroom were hers, she admitted. She also said she kept a box of her clothes in the second room. There were no locks on the doors of either room. The police officers added that the doors of both rooms were open at the time of their search.

The trial court denied Glenn's motion to suppress, reasoning that the grandfather's consent to search was given "without reservation or qualification." The scope of this consent, the court held, provided the officers with apparent authority to search the entire house and to open the backpack found during the search. Following the trial court's denial of his motion to suppress, Glenn entered a conditional guilty plea pursuant to Code § 19.2-254 and appealed his convictions for robbery in violation of Code § 18.2-58 and conspiracy to commit robbery in violation of Code § 18.2-22.

II.

Though the ultimate question whether the officers violated the Fourth Amendment triggers de novo appellate scrutiny, "we defer to the trial court's findings of ``historical fact' and give ``due weight to the inferences drawn from those facts by resident judges and local law enforcement officers.'" Slayton v. Commonwealth, 41 Va. App. 101, 105, 582 S.E.2d 448, 449-50 (2003) (citation omitted). "To prevail on appeal, the defendant must show that the trial court's denial of his suppression motion, when the evidence is considered in the light most favorable to the prosecution, was reversible error." Id. at 105, 582 S.E.2d at 450 (quoting Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464 (2003)).

In this case, Glenn argues that his grandfather's consent to search the home did not extend to opening the backpack and examining its contents. The trial court disagreed, as do we.

Under settled Fourth Amendment principles, "a search authorized by consent is wholly valid." Kyer, 45 Va.App. at 483, 612 S.E.2d at 218 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973)). "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." Barkley v. Commonwealth, 39 Va.App. 682, 696, 576 S.E.2d 234, 241 (2003) (citation omitted).

Consent to search can be given by one with actual authority or apparent authority. Actual authority exists if the consenting party has a privacy interest in the premises to be searched, and thus, a concomitant right to waive that interest and authorize the search. See United States v. Matlock, 415 U.S. 164, 170-71, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). Apparent authority exists if it merely appears to a reasonable officer that the consenting party has "authority over the premises." Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148 (1990). When multiple parties share privacy interests in the premises, any one of them with "common authority over the premises" may consent to the search despite the lack of express concurrence by others possessing a shared privacy interest. Id. at 181, 110 S.Ct. at 2797.

Here, the trial court found that the grandfather owned the home and consented to its search. The police knew Glenn was staying in his grandfather's home and confirmed Glenn did not have the status of a renter. From these facts, the police had ample reason to accept the grandfather's consent to search the home and every room in it. No circumstances suggested to the police that Glenn had preserved a private enclave within the home or had somehow undermined the grandfather's access to, or authority over, any space within his home. The police, therefore, crossed no Fourth Amendment boundary by searching either of the two rooms in which Glenn slept.

Perhaps so, Glenn argues, but that boundary was crossed when the police opened the backpack and looked inside. We disagree. Consent to search a space generally includes consent to search containers within that space. See Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1804, 114 L.Ed.2d 297 (1991). This principle applies to automobiles, Wyoming v. Houghton, 526 U.S. 295, 302, 119 S.Ct. 1297, 1301, 143 L.Ed.2d 408 (1999), as well as physical premises, United States v. Melgar, 227 F.3d 1038, 1041-42 (7th Cir.2000). "The rule regarding containers found in automobiles applies also to containers found in premises." 27 James W. Moore et al., Moore's Federal Practice & Procedure § 641.44, at 641-151 (3d ed. 2006). "A grant of consent to search premises includes consent to search closed containers found within the premises unless the officers have reliable information that the container is not under the control of the person granting consent." Id. (emphasis added); see also State v. Odom, 722 N.W.2d 370, 373 (N.D. 2006) ("Specific consent to search every container is not needed when consent to search a room is given."); see generally 4 Wayne R. LaFave, Search and Seizure § 8.3(g), at 183 (4th ed. 2004).

This conclusion stems from the observation that a "lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search." United States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 2170-71, 72 L.Ed.2d 572 (1982) (footnote omitted). The consent to search a home may reasonably include the "authority to open closets, chests, drawers, and containers" in which the object of the search may be found. Id. at 821, 102 S.Ct. at 2171; see also United States v. Ladell, 127 F.3d 622, 624 (7th Cir.1997). "When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand." Ross, 456 U.S. at 821, 102 S.Ct. at 2171 (footnote omitted). This reasoning "applies equally to all containers, as indeed we believe it must." Id. at 822, 102 S.Ct. at 2171.

Practically speaking, "the real question for closed container searches is which way the risk of uncertainty should run." Melgar, 227 F.3d at 1041. "Is such a search permissible only if the police have positive knowledge that the closed container is also under the authority of the person who originally consented to the search . . . or is it permissible if the police do not have reliable information that the container is not under the authorizer's control." Id. (emphasis in original). We agree with the Seventh Circuit that it must be the latter. Any different approach

would impose an impossible burden on the police. It would mean that they could never search closed containers within a dwelling . . . without asking the person whose consent is being given ex ante about every item they might encounter. We note that there is no possibility of such a rule for automobile searches, because the Supreme Court has already authorized this type of container search in that context. See Ross, supra; Houghton, supra. Our conclusion here rests in part on the discussion in Houghton that indicates that the container rule rests on general principles of Fourth Amendment law that do not depend on the special attributes of automobile searches.

Melgar, 227 F.3d at 1042 (emphasis in original); see also Ladell, 127 F.3d at 624 (holding that a mother had "apparent authority to consent" to a search of her adult son's bedroom, including a closed vinyl bag found in the bedroom).^[2]

Reinforcing these traditional principles, Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 1520, 164 L.Ed.2d 208 (2006), addressed the underpinnings of the apparent authority doctrine as applied to the "co-occupant consent" situation. Randolph recognized that police must be permitted to rely on "widely shared social expectations" when discerning the apparent authority of one person to consent to a search of an area in which another has a dual privacy interest, particularly if the relationship between them falls into "some recognized hierarchy" apparent to the officers. Id. at 1521, 1523.

"Disputed permission," however, undermines that reliance because no reasonable officer could rely on one co-inhabitant's apparent authority to speak for another when the person spoken for is, at that very moment, "expressly refusing consent" to the search. Id. at 1524, 1526. But if the spoken-for inhabitant does not object, the speaking inhabitant's apparent authority remains secure. As the majority in Randolph conceded, "we have to admit that we are drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant's permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out." Id. at 1527. This approach places the burden on the potential objector to assert his objection. For the very reason that

it would be unjustifiably impractical to require the police to take affirmative steps to confirm the actual authority of a consenting individual whose authority was apparent, we think it would needlessly limit the capacity of the police to respond to ostensibly legitimate opportunities in the field if we were to hold that reasonableness required the police to take affirmative steps to find a potentially objecting co-tenant before acting on the permission they had already received.

Id. If this were not the rule, "every co-tenant consent case would turn into a test about the adequacy of the police's efforts to consult with a potential objector." Id. at 1527-28.

Consistent with these principles, we hold the police officers had reasonable grounds to believe that the grandfather's consent to search his house included permission to open a backpack found on the floor in one of the rooms. The grandfather owned the home and had not encumbered his prerogatives as a homeowner by entering into any sort of contractual relationship with Glenn. His relationship with Glenn was not one of landlord-tenant, but of grandfather-grandson.

Equally important, nothing about the backpack itself put the officers on notice that Glenn claimed an exclusive privacy interest in it. The backpack had no lock or, for that matter, anything else ostensibly designed to inhibit someone from opening it. The backpack was found on the floor of a room sometimes used by Glenn, not squirreled away in some secretive place within his principal bedroom. No identifying information on the backpack revealed who owned it, used it, or had access to it. The officers did not know who left it there or who, if anyone, intended to come back for it. Under such circumstances, the officers were not required to speculate — as Glenn implicitly suggests — that grandsons, but never grandfathers, use backpacks.

III.

Applying settled principles of apparent authority, we hold the grandfather's unqualified consent to search his house included permission to open an unlocked, unidentified, unclaimed backpack found in plain view on the floor of one of its rooms.^[3] Because the trial court correctly denied Glenn's motion to suppress, we affirm his convictions for robbery and conspiracy to commit robbery.

Affirmed.

HUMPHREYS, J., with whom BENTON, ELDER and CLEMENTS, JJ., join, dissenting.

From a nod of the head from an elderly stroke victim, the majority finds apparent authority, as a matter of law, to search not merely a home, but any closed containers found within. Moreover, the majority finds that no "reasonableness" standard requires law enforcement officers to clarify the scope of such consent, despite such officers having ready access to all the individuals who might possess a reasonable expectation of privacy over the premises and any closed containers within. Because I find no authority in constitutional precedent for such an expansive view of the Fourth Amendment waiver doctrine, I respectfully dissent.

I. The Scope of the Consent

I agree with the majority that in this case, Glenn's grandfather — the owner of the premises — "shar[ed] common authority" over the bedroom and, thus, possessed the actual authority to consent to a search of that room. See, e.g., Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 1520, 164 L.Ed.2d 208 (2006) (Although the Fourth Amendment "ordinarily prohibit[s] the warrantless entry of a person's house as unreasonable per se, one ``jealously and carefully drawn' exception recognizes the validity of searches [conducted pursuant to] the voluntary consent of an individual possessing authority" to give that consent.); Illinois v. Rodriguez, 497 U.S. 177, 186, 110 S.Ct. 2793, 2800, 111 L.Ed.2d 148 (1990); United States v. Matlock, 415 U.S. 164, 170, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974) (Individuals who possess the authority to consent to the search of a premises include a fellow occupant who shares common authority over property.); see also Bryant v. Commonwealth, 39 Va.App. 465, 470-72, 573 S.E.2d 332, 335 (2002); Jones v. Commonwealth, 16 Va.App. 725, 727-28, 432 S.E.2d 517, 519 (1993); Caldwell v. Commonwealth, 15 Va.App. 540, 542, 425 S.E.2d 534, 535 (1993). Thus, I agree that the general search of the premises, including the bedroom, did not violate Glenn's Fourth Amendment rights. See Matlock, 415 U.S. at 171, 94 S.Ct. at 993 ("Permission to search [may be] obtained from a third party who possess[es] common authority over or other sufficient relationship to the premises or effects sought to be inspected.").

However, I must part company with the majority with respect to whether the grandfather's consent to the search of his home also vested the officers with the authority to open and search Glenn's backpack. See Randolph, 126 S.Ct. at 1522 (noting, for example, that, "when it comes to searching through bureau drawers, there will be instances in which even a person clearly belonging on the premises as an occupant may lack any perceived authority to consent"); United States v. Karo, 468 U.S. 705, 725, 104 S.Ct. 3296, 3308, 82 L.Ed.2d 530 (1984) (O'Connor, J., concurring) (stating that when a third party gives consent to search a room, that person is not necessarily consenting to a search of the closed containers within the room). For the following reasons, I would hold that it did not.

According to settled principles, a third party, with standing to do so, may validly consent to the search of a closed container, even though the actual owner of the container has a heightened expectation of privacy in its contents. See, e.g., Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684 (1969) (cousin had authority to consent to search of the defendant's duffel bag, which both men used and which had been left in the cousin's home); United States v. Ladell, 127 F.3d 622, 624 (7th Cir.1997) (holding that a mother could consent to a search of her adult son's bedroom, including a closed duffle bag stored in between the mattresses on the bed); United States v. Richardson, 562 F.2d 476 (7th Cir.1977) (holding that a woman can consent to a search of a bedroom, shared by herself and the man she lived with, including the closet); see also Florida v. Jimeno, 500 U.S. 248, 253, 111 S.Ct. 1801, 1805, 114 L.Ed.2d 297 (1991) (Marshall, J., dissenting) (stating that, "an individual has a heightened expectation of privacy in the contents of a closed container"); United States v. Chadwick, 433 U.S. 1, 13, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977) ("[A] person's expectations of privacy in personal luggage are substantially greater than in an automobile."). But, consent to search a private container, such as a suitcase or backpack, is only effective if given by someone "with common authority over or other sufficient relationship to the . . . effects sought to be inspected." Matlock, 415 U.S. at 171, 94 S.Ct. at 993. Common authority "rests . . . on mutual use of the property by persons generally having joint access or control for most purposes." Id. at 171 n. 7, 94 S.Ct. at 993 n. 7.

The burden of proving the effectiveness of a third party's consent rests with the Commonwealth. United States v. Salinas-Cano, 959 F.2d 861, 864 (10th Cir.1992) (citing Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148). The Commonwealth can meet this burden by (1) coming "forward with persuasive evidence of both shared use and joint access to or control over a searched area, which would demonstrate actual authority to consent," (2) "show[ing] that the owner of the property to be searched has expressly authorized a third party to give consent to the search," or (3) "establish[ing] consent by means of the apparent authority doctrine." United States v. Welch, 4 F.3d 761, 764 (9th Cir.1993) (internal citations omitted).

In this case, the issue is whether the Commonwealth established that the grandfather had the apparent authority to consent to a search of the backpack.^[4]Id. When determining whether an individual possesses apparent authority to consent to a search, the relevant inquiry is whether, under the totality of the circumstances, an objectively reasonable officer would "conclude that the person providing consent had the requisite authority to do so." Bryant, 39 Va.App. at 471, 573 S.E.2d at 335.

To establish that a third party has the apparent authority to consent to the search of a closed container, the Commonwealth must prove that an objectively reasonable police officer would have believed that the third party had "joint access or control for most purposes" of that container. Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. at 993 n. 7 (noting that authority to consent "rests on mutual use of the property by persons generally having joint access or control for most purposes" of the item or area being searched). This determination must be judged by the facts available to the officer at the moment the officer conducted the search. See Rodriguez, 497 U.S. at 185-86, 110. S.Ct. at 2799-2800. Accordingly, if the facts, as the officer reasonably believed them to be, would have justified an objectively reasonable belief that the third party either owned or maintained joint access or control for most purposes over a closed container found within the area being searched, the resulting search of that closed container does not violate the Fourth Amendment. United States v. Whitfield, 939 F.2d 1071, 1075 (D.C.Cir. 1991); see also United States v. Basinski, 226 F.3d 829, 834 (7th Cir.2000) ("[A]pparent authority turns on the government's knowledge of the third party's use of, control over, and access to the container to be searched, because these characteristics are particularly probative of whether the individual has authority over the property.").

Relying principally on Ross, Jimeno, and United States v. Melgar, 227 F.3d 1038, 1041-42 (7th Cir.2000), the majority finds in a general consent to search a home, apparent authority for a complete waiver of Fourth Amendment protections over any containers found within. In my view, the analysis of the majority improperly conflates two distinct constitutional principles: the proper scope of a consent to search and the proper scope of a warrantless search based upon probable cause. In this case, it matters not a whit where the evidence the police were seeking might be found. The only issue is the contextual breadth of Glenn's grandfather's waiver of Fourth Amendment protection.

Unlike the majority, I do not read either Ross^[5] or Jimeno,^[6] both of which were automobile search cases, as retreating from the fundamental principles laid down in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). As Justice White noted in Chambers,

the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction. . . .

Chambers, 399 U.S. at 48, 90 S.Ct. at 1979. Moreover, Wyoming v. Houghton, 526 U.S. 295, 303, 119 S.Ct. 1297, 1302, 143 L.Ed.2d 408 (1999), reiterated the Supreme Court's recognition of the reduced expectation of privacy in automobiles stating,

drivers[] possess a reduced expectation of privacy with regard to the property that they transport in cars, which travel public thoroughfares, seldom serve as . . . the repository of personal effects, are subjected to police stop and examination to enforce pervasive governmental controls as an everyday occurrence, and, finally, are exposed to traffic accidents that may render all their contents open to public scrutiny.

(Internal citations omitted).

Here, in contrast to an automobile, the locus of this search was a home, and a closed and constitutionally protected backpack within that home.^[7] Thus, I find the issue in this case to be anything but complex. It is simply whether, when considering the totality of the circumstances, an objective police officer could have reasonably believed that the grandfather used, controlled, or had unrestricted access to the backpack and its contents. The majority answers this question in the affirmative based solely upon the presence of the backpack in the home. The majority ignores the fact that the rooms and the backpack were searched solely because of their nexus to Glenn, and not because of any nexus to his grandfather.

The record, when viewed in the light most favorable to the Commonwealth, establishes that Glenn lived with his grandparents, but did not have exclusive control over the rooms searched. However, the record also establishes that Officer Ferguson focused his search exclusively on the rooms identified by Glenn as those he "slept in." In fact, the room in which Officer Ferguson found the backpack had a pair of men's pants on the bed, men's clothing hanging in the closet, a cell phone lying on the closet floor, and a backpack on the bedroom floor.

With respect to the backpack, it was closed, but not locked or otherwise sealed shut. Cf. United States v. Block, 590 F.2d 535, 541 (4th Cir.1978) (although mother could consent to search of house, she could not consent to search of locked footlocker found in her son's room). The backpack was not tucked under the mattress or otherwise hidden from view, cf. Commonwealth v. Sardone, 10 Mass. L. Rep. 97, 1999 WL 1319236 (Super.Ct. 1999) (mother could not consent to the search of her son's knapsack that was at least partially under the foot of the bed in an area not visible from the door), and there were no marks or tags on the knapsack that would indicate its ownership. From these facts, the question of whether the grandfather owned, used, or otherwise controlled the backpack was ambiguous, at best.

Given awareness by the police officers of the ambiguities present here with respect to the apparent ownership of the backpack, I would hold that the police could not "infer such authority [to search the backpack] merely from [the consenter's] ownership of the house." Salinas-Cano, 959 F.2d at 866 (internal quotations omitted) (second alteration in original); State v. Tonroy, 32 Kan. App.2d 920, 92 P.3d 1116, 1120 (2004) ("[C]onsent by an owner or tenant of a residence does not necessarily give the police consent to search closed containers within the residence that belong to others."). See also Basinski, 226 F.3d at 834 ("For purposes of closed containers, mere possession of the container by a third party does not necessarily give rise to a reasonable belief that the third party has authority to consent to a search of its contents."); Salinas-Cano, 959 F.2d at 866 ("To hold that an officer may reasonably find authority to consent solely on the basis of the presence of a [container] in the home of another would render meaningless the Fourth Amendment's protection of such [containers]."). Indeed, the evidence supports only one reasonable inference. That is, the backpack was opened and searched because Officer Ferguson believed it belonged to Glenn, and not because he believed it belonged to his grandfather.

Moreover, although not clearly addressed by the Supreme Court of the United States, many lower courts have held that the burden of proving apparent authority "``cannot be met if [law enforcement] agents, faced with an ambiguous situation, nevertheless proceed without making further inquiry.'" Salinas-Cano, 959 F.2d at 864 (quoting United States v. Whitfield, 939 F.2d 1071, 1075 (D.C.Cir. 1991)). Thus, if the officers "do not learn enough, if the circumstances make it unclear whether the property about to be searched is subject to ``mutual use' by the person giving consent, ``then [a] warrantless [search] is unlawful without further inquiry.'" Id. (quoting Whitfield, 939 F.2d at 1075); accord United States v. Waller, 426 F.3d 838, 846 (6th Cir.2005); United States v. Chun Yen Chiu, 857 F.Supp. 353, 361 (D.N.J.1993); People v. Jenkins, 22 Cal.4th 900, 95 Cal. Rptr.2d 377, 997 P.2d 1044, 1097-98 (2000); People v. Gonzalez, 88 N.Y.2d 289, 644 N.Y.S.2d 673, 667 N.E.2d 323, 326-27 (1996); Riordan v. State, 905 S.W.2d 765, 771 (Tex. App.1995); State v. Kieffer, 217 Wis.2d 531, 577 N.W.2d 352, 359-60 (1998). I agree.

We have often noted that the touchstone of the Fourth Amendment is reasonableness. See, e.g., Bryant, 39 Va.App. at 471-72, 573 S.E.2d at 335; Weathers v. Commonwealth, 32 Va.App. 652, 658, 529 S.E.2d 847, 850 (2000). Considering the heightened expectation of privacy that exists in closed containers, I believe that, when permitted by the circumstances, "reasonableness" requires officers acting under third-party consent to make reasonable attempts to resolve any apparent ambiguity in the ownership or control over any closed containers located within the place being searched. See Rodriguez, 497 U.S. at 188-89, 110 S.Ct. at 2801 (holding that, when law enforcement officers obtain consent to search pursuant to apparent authority, if the "surrounding circumstances [are] such that a reasonable person would doubt [that authority exists] and not act upon [the consent] without further inquiry, . . . then [the] warrantless [search] without further inquiry is unlawful unless authority actually exists" (emphasis added)).^[8] Hence, absent some affirmative indicia that the party consenting to a general search of the premises either owns or maintains joint access and control for most purposes over a closed container found within the place being searched, law enforcement officers should not proceed further without first determining that the third party has an interest in the container sufficient to vest that party with the authority to consent to its search.^[9] To hold otherwise encourages law enforcement officers to remain deliberately ignorant of whether the party consenting to the search has any interest in the closed container, thereby heightening the risk that those officers will infringe upon the Fourth Amendment rights of the absent owner. Moreover, although I agree that there is a risk of uncertainty that a citizen's privacy will be invaded without justification, I disagree with the majority as to "which way the risk of uncertainty should run." Instead of assigning that risk to the citizen, I would assign that risk to the police officers who are not relying on probable cause or an emergency situation, but who seek to rely exclusively on a mistaken perception of who may consent to the search.^[10]

In this case, although Glenn did not object to the search of his backpack, neither did he consent. He was instructed by the officers to wait in the living room while Ferguson conducted the search of the bedrooms. Thus, even if he had wanted to object to the search of his backpack, Glenn was not given the opportunity to identify the backpack as belonging to him until after it had been opened.^[11] And, because it was ambiguous at best as to who owned the backpack, and because both Glenn and his grandfather were mere steps away, a reasonable officer easily could, and should have made further inquiries and asked either the grandfather or Glenn for permission to search it. See Salinas-Cano, 959 F.2d at 864. Because Officer Ferguson failed to do so, I would hold that the search exceeded the scope of the consent, and was thus "unlawful." Id.

The majority argues, however, that the Supreme Court's recent holding in Randolph eschews any duty to inquire. In support of this proposition, the majority quotes language from Randolph, opining that "it would be unjustifiably impractical to require the police to take affirmative steps to confirm the actual authority of a consenting individual whose authority was apparent. . . ." 126 S.Ct. at 1527 (emphasis added). For the reasons discussed above, however, the grandfather's authority to consent to a search of the backpack was not apparent under these circumstances. The language quoted by the majority is, therefore, not applicable in this context.

Moreover, unlike this case, Randolph involved "disputed permission" by individuals who each inarguably had actual authority to waive Fourth Amendment protections over the place searched. As Justice Souter expressly reaffirmed in Randolph, society recognizes that a houseguest has a legitimate expectation of privacy in his host's home. See Minnesota v. Olson, 495 U.S. 91, 98, 110 S.Ct. 1684, 1688-89, 109 L.Ed.2d 85 (1990). As in Olson, Glenn's status was that of a houseguest, and as in Olson, Glenn's grandfather had no authority to consent to a search of Glenn's belongings merely by virtue of their presence in the home.

In sum, although the facts of this case would "warrant a man of reasonable caution in the belief" that the grandfather "had authority over the premises," in my view, those same facts were insufficient to "warrant a man of reasonable caution in the belief" that Glenn's grandfather either owned or shared control of the backpack. Rodriguez, 497 U.S. at 188-89, 110 S.Ct. at 2801 (internal quotations omitted). If so, it then follows that the Commonwealth failed to prove that the grandfather possessed the apparent authority to consent to the search of the backpack. And, because an objective law enforcement officer could not have reasonably believed that the grandfather had the authority to consent to a search of the backpack, I believe that the resulting search violated the Fourth Amendment. Accordingly, I dissent from the analysis and holding of the majority, and would hold that the trial court erred in denying Glenn's motion to suppress.

II. The Appropriate Appellate Remedy

Because I would reverse the trial court on the issue of the search of the backpack and because this Court has affirmed the trial court with respect to the admissibility of Glenn's incriminating statements to the police, I must necessarily address the applicability of Code § 19.2-254. This statute provides that, if a defendant who enters a conditional guilty plea "prevails on appeal, he shall be allowed to withdraw his plea."

For the reasons that follow, I would hold that an appellant who partially prevails on appeal is entitled to an opportunity to withdraw his conditional guilty plea.

No Virginia appellate court has ever addressed the question of whether an appellant who partially prevails on appeal should be entitled to withdraw his conditional plea. Every other jurisdiction to have directly addressed this issue, however, has held that an appellant should be given the opportunity to withdraw his conditional guilty plea if he succeeds in excluding, on appeal, evidence that would reasonably have influenced his decision to enter a conditional plea. I agree. Accordingly, I would remand this case to give Glenn the opportunity to withdraw his conditional plea and, if he so chooses, proceed to trial.

Of the approximately thirty jurisdictions^[12] that authorize some form of a conditional plea procedure, a number of them have held that a defendant who partially prevails on appeal is entitled to an opportunity to withdraw his conditional plea. For example, in State v. Juarez, 120 N.M. 499, 903 P.2d 241 (Ct.App.1995), the New Mexico Court of Appeals observed that, "if improperly admitted evidence could have influenced a defendant's decision to plead guilty, there is a fair inference that the evidence contributed to the plea." Id. at 248. Thus, in situations involving a defendant who is "partially successful," the court concluded that it must "remand so that Defendant may have the opportunity to reassess the admissible evidence in this case and either plead guilty or proceed to trial." Id. at 249.

Similarly, in State v. Piorkowski, 236 Conn. 388, 672 A.2d 921 (1996), the Connecticut Supreme Court observed that, under the applicable state statute, "there may be suppression issues that result in only partial appellate success," reasoning that "[t]he denial of a motion to suppress based on a claim of an unreasonable search and seizure" could conceivably "yield an appellate result suppressing part, but not all, of the evidence gathered as a result of the search." Id. at 930-31. The Piorkowski court concluded that, when an appellant has partially prevailed on the appeal of a conditional plea, the appropriate appellate remedy would be to remand so as to permit "both the state and the defendant . . . to reevaluate their respective positions in light of the availability of some, but not all, of the evidence gathered as a result of the search." Id. at 931 n. 15; accord United States v. Tantalo, 680 F.2d 903 (2d Cir.1982); United States v. Mejia, 69 F.3d 309, 317 n. 8 (9th Cir.1995); People v. Hill, 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1, 28 (1974); State v. Dinsmore, 182 Or.App. 505, 49 P.3d 830, 838 (2002), aff'd, 336 Or. 565, 87 P.3d 1120 (2004); see also United States v. Leake, 95 F.3d 409, 420 & n. 21 (6th Cir.1996) (articulating a case-specific standard that "requires an examination of the degree of success and the probability that the excluded evidence would have had a material effect on the defendant's decision to plead guilty").

I agree with the reasoning in these decisions. There is nothing in the language of Code § 19.2-254 indicating that an appellant must prevail on appeal with respect to every issue that formed a basis for his conditional plea. To construe the language of the statute otherwise would render moot every conditional appeal unless the petitioner could convince a reviewing judge or panel of this Court that every issue presented to this Court had merit. Where, as here, a defendant has sought to exclude two separate bodies of evidence on different constitutional grounds, and this Court only reverses the trial court's decision on one of those two grounds, in my view, it would be unduly harsh to punish that defendant for exercising his statutory right to appeal the denial of both motions to suppress. Holding that a defendant who "prevails in part" is not entitled to withdraw his conditional guilty plea would then have the practical effect of forcing a defendant to select just one appealable issue and waive any other constitutional objections he might have to the remaining evidence. In my view, this does not comport with either the spirit or language of Code § 19.2-254.

Accordingly, in situations where an appellant has conditionally pleaded guilty pursuant to Code § 19.2-254 and has been partially successful on appeal, I would hold that the appropriate remedy is to remand the case "so that Defendant may have the opportunity to reassess the admissible evidence in this case and either plead guilty or proceed to trial." Juarez, 903 P.2d at 249.^[13] Therefore, because I would hold that Glenn has prevailed on the merits of his motion to suppress the physical evidence recovered from the backpack, I would remand this case to allow Glenn the opportunity to decide whether he "wishes to withdraw [his] plea and go to trial," or, "in light of [his] limited success on appeal, not to withdraw it." Dinsmore, 49 P.3d at 838.^[14]

NOTES

[1] Glenn also filed a motion to suppress his confession on Fifth Amendment grounds. The trial court overruled that motion. Pursuant to Code § 17.1-407(D), a three-judge panel of this Court denied Glenn's petition for appeal on this ground.

[2] The dissent comes to the opposite conclusion based on the belief that an individual has a "heightened expectation of privacy in the contents of a closed container." Post at 425, 642 S.E.2d at 288; see also Glenn v. Commonwealth, 48 Va.App. 556, 569, 633 S.E.2d 205, 212 (2006). This proposition, however, was accepted only by the two-Justice dissent in Jimeno (from which the quoted language comes), not from the Jimeno majority's reasoning or holding. Florida v. Jimeno, 500 U.S. 248, 253, 111 S.Ct. 1801, 1805, 114 L.Ed.2d 297 (1991) (Marshall & Stevens, JJ., dissenting). We also find unpersuasive the dissent's reliance on United States v. Chadwick, 433 U.S. 1, 13, 97 S.Ct. 2476, 2484-85, 53 L.Ed.2d 538 (1977), given that it has been expressly abrogated (in favor of the reasoning in Ross) by California v. Acevedo, 500 U.S. 565, 573, 578, 111 S.Ct. 1982, 1990, 114 L.Ed.2d 619 (1991) (applying Ross and agreeing with the "Chadwick dissenters" who "predicted that the container rule would have ``the perverse result of allowing fortuitous circumstances to control the outcome' of various searches" (citation omitted)).

[3] Given our holding, we need not address the Commonwealth's additional argument that Glenn's confession renders harmless any error associated with the suppression ruling. The grant of en banc review vacates the prior panel opinion in toto, including its holding that harmless error principles do not apply to appeals of conditional guilty pleas. We thus do not resolve the differing views expressed by the panel majority and dissent on this subject. Cf. Glenn, 48 Va.App. at 577-87, 633 S.E.2d at 216-21 (rejecting harmless error), with id. at 598-604, 633 S.E.2d at 226-29 (applying harmless error).

[4] There is no evidence to suggest that the grandfather possessed the actual authority to consent to a search of the backpack. Specifically, the Commonwealth presented no evidence — much less "persuasive" evidence — from which it could be inferred that the grandfather owned, used, or was able to freely access either the backpack or its contents. See Welch, 4 F.3d at 764. Indeed, Glenn's grandmother testified that neither she nor Glenn's grandfather ever used the backpack. Thus, it follows that the Commonwealth failed to prove that the grandfather possessed the actual authority to consent to a search of the backpack. Nor did the Commonwealth present any evidence indicating that Glenn had given his grandfather express authorization to consent to a search of the backpack. See id.

[5] In Ross, the United States Supreme Court "consider[ed] the extent to which police officers — who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it — may conduct a probing search of compartments and containers within the vehicle whose contents are not in plain view." Ross, 456 U.S. at 800, 102 S.Ct. at 2160. The Court held that officers "may conduct a search of the vehicle that is as thorough as a magistrate could authorize in a warrant ``particularly describing the place to be searched.'" Id. In other words, "[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." Id. at 825, 102 S.Ct. at 2173.

[6] In Jimeno, the United States Supreme Court found that once a suspect gives a police officer permission to search his automobile, the officer can, without violating the Fourth Amendment, open a closed container found within the car that might reasonably hold the object of the search. Jimeno, 500 U.S. at 249, 111 S.Ct. at 1803.

[7] The majority shuns my reliance on Chadwick because "it has been expressly abrogated" by California v. Acevedo, 500 U.S. 565, 578, 111 S.Ct. 1982, 1990, 114 L.Ed.2d 619 (1991). I agree that Acevedo and Ross clarify an area of the law that had "confused the courts," specifically, the extent to which an officer, with probable cause, may search a vehicle and its containers without a warrant. Acevedo, 500 U.S. at 578, 111 S.Ct. at 1990. However, Acevedo only reiterates the holding in Ross stating, "``[t]he scope of a warrantless search of an automobile . . . is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.'" Acevedo, 500 U.S. at 579-80, 111 S.Ct. at 1991 (quoting Ross, 456 U.S. at 824, 102 S.Ct. at 2172). In other words, Acevedo "eliminate[s] the warrant requirement for closed containers" within automobiles. Id. at 579, 111 S.Ct. at 1991. Acevedo clearly indicates that "automobile searches differ from other searches," id. at 578, 111 S.Ct. at 1990, and thus, I believe that it does not govern the outcome of the case at hand.

Moreover, Acevedo does not abrogate the Fourth Amendment's protection of "the right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures," U.S. Const. amend. IV, and its application as expressed in Chadwick to closed containers, including those inside a home, that may carry a heightened expectation of privacy. The long-standing principle of apparent authority that common authority "rests . . . on mutual use of the property by persons generally having joint access or control for most purposes," Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. at 993 n. 7, recognizes that although individuals may have joint access to rooms within a home, they may not necessarily have joint access to closed containers within that room. Cf. Cupp, 394 U.S. at 740, 89 S.Ct. at 1425 (By allowing his cousin Rawls "to use the bag" and by "leaving it in his house," the defendant "assumed the risk that Rawls would allow someone else to look inside."). The holdings in the automobile exception cases — Ross, Acevedo, and the like — do not persuade me that when dealing with apparent authority, and the scope of a consent to search, the Supreme Court has abandoned this constitutional principle.

[8] I note that this rule does not necessarily extend to all types of closed containers, but only those— like backpacks—that "historically command a high degree of privacy." Salinas-Cano, 959 F.2d at 864 (noting that "the type of container at issue is . . . an important consideration"); see also Jimeno, 500 U.S. at 253, 111 S.Ct. at 1805 (Marshall, J., dissenting) (describing the "heart of the Fourth Amendment" as the protection of containers that are "common repositories for one's papers and effects").

[9] The majority cites Melgar, 227 F.3d at 1041, for the proposition that a search is "permissible if the police do not have reliable information that the container is not under the authorizer's control." I don't find Melgar persuasive to the extent that the majority does. In Melgar, the police had no reason to know that the purse in question did not belong to the woman authorizing the search. Id. at 1042. Specifically, they knew that the woman giving the consent rented the room in which the purse was found. Id. In addition, there were no exterior markings on the purse that should have alerted them to the fact that it belonged to someone other than the woman who rented the room. Id. Moreover, the woman who consented to the search "knew that the[] [officers] were searching for evidence of counterfeit dividend checks, which could easily fit inside the purse." Id. Taken together, the court concluded that the scope of the consent encompassed the officer's right to look into the purse. Id.

In this case, the officers knew that Glenn occupied the room. In fact, he stated that he slept in this particular room. Moreover, there were men's pants on the bed, men's clothing hanging in the closet, and a backpack on the floor. Unlike in Melgar, Glenn did not give Officer Ferguson specific consent to search the room where the container was located. Moreover, there is no indication in the record that Glenn's grandfather, who consented to the search, knew what the officers were looking for, or that they intended to search the backpack.

[10] I note that in this case, the officers were perfectly willing to walk across the room to engage Glenn when it suited their purpose. In other words, the officers did not approach Glenn to ask if they could search the backpack. Instead, they searched the backpack and then asked if the contents belonged to him.

[11] This Court has stated that "where 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." Walls v. Commonwealth, 2 Va.App. 639, 651, 347 S.E.2d 175, 182 (1986) (emphasis added). As in Walls, the grandfather had sufficient authority to authorize the search of the house. However, as indicated, in my view, that consent does not extend to the backpack, and, thus, Glenn's failure to object does not automatically render the search "reasonable."

[12] Jurisdictions that have adopted—either by rule, statute, or decision—a conditional plea procedure similar to that codified in Code § 19.2-254 include the following: Sawyer v. State, 456 So.2d 110 (Ala.Crim.App.1982); Cooksey v. State, 524 P.2d 1251 (Alaska 1974); Ark. R.Crim. P. 24.3(b); Cal.Penal Code § 1237.5 & Cal.App. R. 30(b); People v. Bachofer, 85 P.3d 615, 617 (Colo.Ct.App.2003); Conn. Gen.Stat. § 54-94a; D.C.Super. Ct. R.Crim. P. 11(a)(2); Fla. R.App. P. 9.140(b)(2)(A)(i); Haw. R. Penal P. 11(a)(2); Idaho R.Crim. P. 11(a)(2); Ky. R.Crim. P. 8.09; State v. Crosby, 338 So.2d 584 (La.1976); Me. R.Crim. P. 11(a)(2); People v. Reid, 420 Mich. 326, 362 N.W.2d 655 (1984); Mont.Code Ann. § 46-12-204(3); Nev.Rev.Stat. § 174.035(3); N.J.R. 3:9-3(f); State v. Hodge, 118 N.M. 410, 882 P.2d 1 (1994); N.Y.Crim. P. Law § 710.70; N.C. Gen.Stat. § 15A-979(b); N.D. R.Crim. P. 11(a)(2); Ore.Rev.Stat. 135.335(3); Tenn. R.Crim. P. 37(b)(2)(i); Tex.Code Crim. Proc. art 44.02 & Tex.R.App. P. 25.2(a)(2); Utah R.Crim. P. 11(i); Vt. R.Crim. P. 11(a)(2); W. Va. R.Crim. P. 11(a)(2); Wis. Stat. Ann. § 971.31(10); Wyo. R.Crim. P. 11(a)(2); see also Fed.R.Crim.P. 11(a)(2).

[13] I note that there is no constitutional right to conditionally plead guilty and that, under Code § 19.2-254, the Commonwealth and the trial court must approve a conditional guilty plea before it may be entered. Accordingly, both the Commonwealth and the trial court share control with the defendant over any issues ultimately presented to this Court on appeal. See generally United States v. Lace, 669 F.2d 46, 53 n. 5 (2d Cir.1982) ("If a plea is tendered upon condition that more than one issue is reserved for appeal, the district court should satisfy itself that the reserved issues are significant to the outcome of the case.").

[14] I note, as the Commonwealth argued to the panel, that some federal jurisdictions have held that a conditional guilty plea is void at its inception if the defendant attempts to reserve issues for appeal that are non-case-dispositive. See, e.g., United States v. Bundy, 392 F.3d 641, 645 (4th Cir.2004) (citing precedent from the Second, Third, Fifth, and Seventh Circuits). These cases have their roots in the Official Comments to the Federal Rule, which suggest that a conditional plea should only reserve the right to appeal case-dispositive issues. Specifically, the Official Comment notes that requiring governmental consent for conditional pleas is appropriate because "[t]he government is in a unique position to determine whether the matter at issue would be case-dispositive, and, as a party to the litigation, should have an absolute right to refuse to consent to potentially prejudicial delay." Official Comment, Fed.R.Crim.P. 11(a)(2). See generally United States v. Wong Ching Hing, 867 F.2d 754, 758 (2d Cir.1989) (discussing rationale behind the "dispositiveness" requirement). In contrast, the text of Code § 19.2-254 permits a defendant to "reserv[e] the right, on appeal from the judgment, to a review of the adverse determination of any specified pretrial motion." (Emphasis added). Because there is no "dispositiveness requirement" evident on the face of the statute itself, I would decline the Commonwealth's invitation to add one by judicial fiat. See generally State v. Montoya, 887 P.2d 857, 860 (Utah 1994) (declining to add a "dispositiveness requirement" to Rule 11(i) of the Utah Rules of Criminal Procedure, reasoning that text of the rule "allows a defendant entering a conditional plea to reserve the right to appeal ``the adverse determination of any specified pre-trial motion,' not just dispositive ones" (quoting Utah R.Crim. P. 11(i)) (emphasis in original)). Accordingly, I do not address whether the issues Glenn reserved for appeal might be deemed "non-case-dispositive," so as to render his conditional plea void at its inception.