Glenn v. Commonwealth

633 S.E.2d 205 Keith Isiah GLENN Virginia. COMMONWEALTH Record No. 2390-04-2. Appeals Virginia,

Court of

Richmond.

Aug. 2006. Heights, of Colonial City From the Court Circuit Gill, Jr., Judge.1 Herbert C. (Dinkin Purnell, P.L.L.C., briefs), Rich- on

Kevin Purnell & mond, appellant. for G, Rockwell, suppress. III motions to Judge denied Glenn's

1. Frederick (Judith Whalen, F. Josephine Attorney Assistant General General; McDonnell, F. Jagdmann, Attorney W. Robert At- torney General, briefs), for appellee. ELDER, KELSEY,

Present: HUMPHREYS and JJ. HUMPHREYS, Judge. (“Glenn”) I. Glenn for appeals robbery,

Keith his convictions 18.2-58, § violation Code to commit conspiracy robbery, in violation of appeal, § Code 18.2-22. On argues that trial denying court erred in his motion officers, suppress, reasoning that the while searching residence, his obtained certain evidence violation of his Fourth rights. Amendment Specifically, Glenn contends although grandfather—the premises—con- owner to house, sented the search of the that consent did not give the the authority officers to open a closed container located in Glenn’s following reasons, bedroom. For the we agree in case, an objectively this reasonable police officer would not have believed that the grandfather’s consent to search the premises gave also officer the the to open the closed container. Accordingly, we reverse Glenn’s convictions and remand for this case further proceedings.

I. BACKGROUND appeal of the suppress, “[0]n denial a motion to we in view the evidence the light most favorable to the Common wealth, party the prevailing Aldridge below.” v. Common wealth, 618, 638, (2004). 606 S.E.2d So viewed, the evidence this case establishes the following.

In early the January hours of Glenn and his cousin driving were City down a road in the Colonial Heights when they “a guy saw white walking down the street.” Glenn and his cousin pedestrian. decided to rob The the two men pulled street,” vehicle, their car “off got to side out the ap- proached him, pedestrian, pointed said, the gun and “Give money.” me all your After victim’s taking phone cell and cash, fled. they $370 later, Greg Ferguson, Dan Detective days

Four Detective Russell, warrants Mo Williams obtained arrest Captain and into taking After cousin for and his cousin. Glenn’s Glenn to the identified custody, the three officers went address they got as residence. arrest warrant Glenn’s When house, grandmother and said Glenn Glenn’s mother there, his to his probably way not “on home” was but was grandfather’s house. grandparents, officers then the home of Glenn’s

The went They for two months. residing where Glenn had been about door, The officers the front and Glenn answered. knocked on Glenn,” was Keith and Glenn said asked Glenn “if name him, Glenn, it then arrested handcuffed that was. The officers his Miranda him rights. and read arrest, the officers and Glenn “went into After Glenn’s room, living The officers Glenn to the where house.” escorted The three detec- “walking was around.” grandfather Glenn’s officers, grand- identified themselves “asked tives understood, yes.”2 Captain if and shook his head father he he if the officers could grandfather then asked the Williams yes. Cap- grandfather again The nodded search the house. stay if in the paid rent tain Williams also asked Glenn home, shook his head no. grandfather began then to search the house. Glenn Ferguson

Detective Ferguson room conducted living while stayed for At no time did the officers ask Glenn consent search. contents, object nor did his rooms or their search search. room, living room closest to searched the the

Ferguson first in.” In that slept the “room he which had indicated was Glenn room, up against propped found three mattresses Ferguson Having clothing.” and boxes of women’s the wall “various crime, room and of left the Ferguson no evidence found hall pointed down the hallway. then looked down Glenn as well.” stated, I in that bedroom yeah, sleep and “Oh strokes,” speak. grandfather cannot of Glenn’s As a result "several 2. Ferguson entered the second room and searched it. He bed, found a of on the men’s in the pair pants clothing hanging floor, closet, cell on phone lying backpack a the closet and a closed, backpack bedroom floor. The was and Ferguson had to it “manipulate open” see its contents. Inside the backpack, cash, found in a Ferguson containing wallet $45 identification, Glenn’s and cell phone, another which matched the description of the phone during robbery.3 stolen the armed At point, Captain this Williams “escorted” Glenn from the living room to the door of the Glenn bedroom. identified the him, backpack as and belonging he claimed to have found phone in lying ground on the Colonial Heights. police station, Glenn was taken to the full gave where he confession, both and grand jury written verbal. A subse- quently Glenn for robbery, indicted conspiracy commit of robbery, use a firearm in the felony. commission trial, however, Before pretrial filed Glenn two motions to motion, In suppress. one requested Glenn that the trial court “suppress any and all by statements made ... defendant to all law agencies,” enforcement that arguing the statements were and, obtained after he his right invoked to remain silent thus, in violation his Fifth Amendment In the rights. motion, second requested trial suppress court “all evidence obtained recovered the Commonwealth and/or incident his arrest at his grounds residence on the that the search is violation of the Fourth Amendment of the Consti- States, I, tution of the United Article Section [and] Constitution of Virginia____” court, by

The trial written order dated June denied both suppress, motions to reasoning, pertinent to this appeal, that: search, Although performed

3. not discussed the officer who grandmother Glenn’s had testified she left one box of clothes box, "[e]verything Glenn’s bedroom. Other than the was [the room] [Glenn’s].” It is not clear from the record where that box of clothes located, was or whether the officer opened noticed the box before he backpack. 566 Brooks, and grandfather the owner the

Mr. defendant’s residence, the without property consented to the search of to qualification. or Mr. Brooks also indicated reservation The did not rent. rooms police pay the the defendant to view contained a open that were searched were and subsequently property, police mixture of which the personal the his belonged grandmother, learned to defendant and search, The was at the present Rose Brooks. defendant search, no to the and took action countermand observed the that he permission by advising grandfather’s the of the residence he objected portion to search he occupied. later claimed motions to suppress,

After the trial court denied the robbery a to counts of and guilty plea conditional the entered for conspiracy robbery.4 petition to commit Glenn then filed Court, to as both that the trial assigning this error appeal physical the the suppress court motion to denying erred during the search of the residence and evidence recovered suppress motion to denying that the trial court erred granted petition This Court police. his statements evidence, suppress physical as to the motion to appeal for suppress petition appeal for to motion denied Thus, present- the sole issue police. statements to the Glenn’s in denying the trial court erred ed on whether appeal evidence found suppress physical motion Glenn’s Glenn’s bedroom. THE APPEAL

II. MERITS OF reviewing a trial court’s denial of motion When findings of are the trial court’s suppress, “we bound wrong’ without evidence ‘plainly fact unless historical Commonwealth, support them.” McGee banc) (1997) (en (citing Ornelas 487 S.E.2d States, 116 S.Ct. United U.S. (1996)). “However, de novo whether we consider

L.Ed.2d prosequi granted motion to nolle the Commonwealth’s 4. The trial court felony. aof charge in the commission remaining of use a firearm and, so, if wheth implicate those facts Fourth Amendment unlawfully infringed protected by er the officers an area upon Commonwealth, the Fourth Amendment.” v. 30 Va. Shaver 393, (1999). 789, 794-95, App. 520 S.E.2d 396 case, Under the circumstances of this we must two consider related, First, separate, questions. but must decide we whether the grandfather’s police consent authorized the offi- Second, to cers search Glenn’s must bedroom. we also consid- er whether the grandfather’s police consent authorized the officers open backpack. to For the Glenn’s reasons that follow, that, although we hold grandfather’s the consent to valid, search the bedroom was that consent not did authorize open the officers closed container found in that bedroom. we Accordingly, hold that the trial court in denying erred the suppress. motion to Validity

A. Third-Party the the Consent Bedroom

The Fourth Amendment “the protects right the houses, people to be secure in person, their papers, and effects, against unreasonable searches and seizures.” U.S. Const, However, amend. although IV. the Fourth Amend “ordinarily prohibits] ment entry per warrantless of a se, son’s house as per ‘jealously unreasonable one and carefully exception drawn’ recognizes validity of searches [conduct pursuant ed consent of an voluntary possess to] individual — authority” ing give Georgia consent. v. Randolph, U.S. —, —, 1515, (2006) 1520, 126 S.Ct. 164 L.Ed.2d 208 States, 493, 499, v. (quoting Jones United 357 U.S. 78 S.Ct. 1253, (1958)) (citations 1258, omitted).5 2 L.Ed.2d 1514 Indi possess authority viduals who to consent to the search of a premises occupant include “a fellow who shares common au Matlock, thority property.” over Id. v. (citing United States (1974)). 988, 992-93, 415 U.S. 94 S.Ct. 39 242 L.Ed.2d Similarly, “the for even exception consent extends to entries Randolph following arguments 5. The decision in down was handed oral Accordingly, parties in this case. this Court asked the to submit possible addressing impact Randolph additional briefs of the deci- appeal. sion on the resolution of this 568 co-occupant of a whom permission

and searches with erroneously, but shared reasonably, possess believe Rodriguez, Id. v. occupant.” (citing as an Illinois 186, 2793, 2800-01, 177, 110 111 L.Ed.2d 148 497 U.S. S.Ct. Commonwealth, 465, (1990)); Bryant Va.App. see also v. 39 Commonwealth, 470-72, (2002); 335 Jones S.E.2d (1993); 725, 727-28, Caldwell Va.App. 432 S.E.2d Commonwealth, S.E.2d (1993). case,

In owner grandfather—the this Glenn’s to search the house. officers consent premises—gave Glenn, object did not although present, expressly — at —, U.S. 126 S.Ct. 1528. Randolph, search. Cf. Also, grandfather there no lacked was evidence Glenn’s whenever he ability or to enter Glenn’s authority bedroom example, was no landlord-tenant relation wished. For there v. grandparents, Stoner ship between Glenn and cf. 489-90, 483, 889, 893-94, 11 California, 376 U.S. 84 S.Ct. States, 610, (1964); 365 U.S. Chapman L.Ed.2d 856 United DiPrima, (1961); 776, 5 L.Ed.2d 828 United States 81 S.Ct. (1st Cir.1973), 550, did not 472 F.2d 551 and Glenn’s bedroom restricting key, padlock, other device separate have fact, testified grandmother to room. In Glenn’s access anytime out of “go [the [she] that she could and bedroom] want[ed].” facts, it grandfather

From follows that the “shar[ed] these and, thus, possessed over the bedroom authority” common Thus, room. search of that authority actual consent bedroom, including of did premises, search general Matlock, rights. Fourth Amendment See not violate Glenn’s (“Permission [may search at 94 at 993 415 U.S. S.Ct. common party possesses] from a who third obtained be] relationship premises to the or other sufficient authority over to be sought inspected.”). or effects Third-Party Backpack to the Consent Validity B. However, grandfather’s must also decide whether we officers his home also vested the with consent to the search of

569 — the authority open backpack. Glenn’s Randolph, See —, U.S. at (noting, S.Ct. at 1522 for example, “when it searching through drawers, comes to bureau there will be instances which even a person clearly belonging on premises as an occupant may any perceived lack consent”); Karo, 705, 725, United States v. 468 U.S. (1984) 3296, 3308, (O’Connor, J., S.Ct. 82 L.Ed.2d 530 concur ring) (stating that when a party gives third consent to search a room, that person is not to a necessarily consenting search of room). the closed containers within the For the following reasons, we hold that it did not.

An claiming individual Fourth Amendment protec tion must demonstrate a “legitimate expectation of privacy in the invaded place,” and it must be one which “society recog nizes Olson, as reasonable.” 91, 95-96, Minnesota v. 495 U.S. 1684, 1686-87, (1990) (citations 110 S.Ct. 109 L.Ed.2d 85 omitted). Clearly, “an individual has a heightened expectation privacy in the contents of a closed container.” Florida v. Jimeno, 248, 253, U.S. S.Ct. 114 L.Ed.2d (1991) (Marshall, J., dissenting); see also United States v. Chadwick, 433 U.S. S.Ct. 53 L.Ed.2d 538 (1977) (“[A] person’s expectations of privacy in personal lug gage are substantially greater automobile.”). than an “Luggage, handbags, paper bags, and other containers are common repositories for papers effects, one’s and the protection of these items from state intrusion lies the heart Jimeno, the Fourth Amendment.” 253, 500 at U.S. 111 (Marshall, S.Ct. at 1805 J., dissenting); see U.S. Const. (“The amend. right IV of people be secure their ... effects, papers, and against unreasonable searches and sei violated.”). zures, shall not be

However, it is also clear that a third party, with so, standing may validly do consent the search of a closed container, though even the actual owner of the container a has heightened expectation privacy See, in its contents. e.g., v. 731, 740, Frazier 394 Cupp, U.S. S.Ct. (1969) (cousin

L.Ed.2d 684 authority had to consent to search of the defendant’s duffel bag, which men both used and which Ladell, home); States v. left in the cousin’s United

had been Cir.1997) (7th could 622, that a mother (holding 127 F.3d bedroom, including to a search of her adult son’s consent the mattresses on the stored in bag closed duffle between (7th Richardson, bed); 562 F.2d 476 Cir. United States 1977) to a of a can consent search (holding that a woman with, bedroom, the man she lived by shared herself and closet). contain private But consent to search including the common authori if someone “with given by er is effective only to the ... effects relationship other ty over or sufficient Matlock, 171, 94 at 415 U.S. at S.Ct. inspected.” to be sought mutual use of the authority “rests ... on 993. Common access or control having joint property by persons generally n. 7. at 171 n. 94 S.Ct. purposes.” for most Id. third the effectiveness of a proving The burden States v. government. rests with the United party’s consent Cir.1992) (10th Salinas-Cano, Rodri (citing 959 F.2d 148). 2793, 111 L.Ed.2d The 110 S.Ct. guez, 497 U.S. (1) coming “forward with meet this burden government can to or joint use and access evidence both shared persuasive area, actual a searched which would demonstrate control over (2) consent,” of the “showing] that the owner authority to party a third has authorized expressly to be searched property (3) search,” “establishing] consent to the give consent United States authority of the doctrine.” apparent means Cir.1993) (internal (9th omit Welch, citations 4 F.3d ted). that the case, suggest

In this there is no evidence to a authority the actual to consent grandfather possessed pre the Commonwealth backpack. Specifically, search of the “persuasive” less evidence—from no evidence—much sented owned, used, grandfather that the it could be inferred which con or its freely backpack access either the or was able to Indeed, that testified grandmother id. Glenn’s tents. See backpack. ever used the grandfather she nor Glenn’s neither prove failed to It the Commonwealth follows to consent to a the actual grandfather possessed backpack. of the search

571 present any indicating Nor did the Commonwealth evidence given grandfather express that Glenn had authorization to See id. backpack. Accordingly, consent a search of the only remaining issue is whether the Commonwealth estab- apparent authority lished that had the grandfather Id. consent to a backpack. search determining When whether an individual possess search, es apparent authority consent the relevant whether, inquiry circumstances, under the totality of the an objectively reasonable officer “conclude that person would providing consent had requisite authority to do so.” Bryant, 39 at 573 S.E.2d at 335. To establish that a party apparent third has the authority consent to the container, search of a closed the Commonwealth must prove that an objectively officer reasonable would have be lieved that the third party “joint had access or control” of that Matlock, container. n. 94 U.S. S.Ct. at 993 n. 7 (noting that authority to consent “rests mutual use of the property by persons generally joint having access control” searched). of the item or being area This determination must judged by be the facts available to the officer at the moment the officer conducted the search. See Rodriguez, U.S. at 185-86, 110 S.Ct. at 2800-01. Accordingly, facts, if the as the reasonably be, officer believed them to would justified have an objectively reasonable belief that the party third either owned or maintained some level of control over a closed container searched, found within the area being the resulting search of that closed container does not violate the Fourth Amendment. Whitfield, United States v. 1071, 1075 (D.C.Cir.1991); F.2d Basinski, see also United States v. (7th 226 F.3d Cir.2000) (“[A]pparent turns on government’s knowledge of, party’s over, the third use control and access searched, to the container to be because these characteristics are particularly probative of whether the individual has au thority property.”).6 over the

6. relationship Some courts have held consenting that the between the party and the owner of the item searched should be a factor

Here, then, totality of circum considering the the stances, objective police an officer we must determine whether used, grandfather that the reasonably could have believed controlled, backpack access to the and its had unrestricted follow, hold that the contents. For the reasons that we objectively failed to that an reasonable prove Commonwealth had grandfather officer would have believed the to, And, over, or joint backpack.7 control access the because See, e.g., determining third-party consent is valid. Colbert whether the Lucero, Commonwealth, (Ky.2001); People 43 S.W.3d 777 see also v. v. (no (Colo.Ct.App.1985) relinquished 604 evidence that mother 720 P.2d it); room, despite having entering control of her own reasons for never 79, Brooks, 392, People Ill.App.3d v. 277 214 Ill.Dec. 660 N.E.2d 270 (1996) (no was or that son had left instruc evidence that room locked 306, it); Mich.App. People Goforth, v. 222 564 N.W.2d tions not to enter rent, (1997) nothing (although years paid and 526 son was 18 old Cole, room); 706 that mother lacked access to the State v. indicated (a person living family (Mo.Ct.App.1986) with his can S.W.2d 917 living expect independent more than an renter with non- intrusion relatives). However, these courts have found that the consent is valid home," consenting party’s "superior right the Colbert because of the 777, when the 43 S.W.3d at and that the consent is sufficient even id..; Commonwealth, 610, Ky. present, Gray 198 defendant is see also v. (1923). directly justification contradicts the 249 S.W. 769 Because this Matlock, authority” Randolph definition of "common as set forth in and — Randolph, adopt approach. See U.S. at we decline to a similar that, —, (noting although issue of reasonable 126 S.Ct. at 1521 may property,” of it is "not controlled ness be “influenced the law Matlock, rules”); (noting U.S. at 171 n. 94 S.Ct. at n. 7 its 415 "[cjommon is, course, authority implied of not to be from the mere property,” property party ”[t]he a third has in the because interests justifies third-party upon the consent does not rest which refinements, legal but property, with its attendant historical and law property by persons generally having on mutual use of the rests rather (citations omitted)). joint purposes” for most access or control 'presence presents of consent’ 'a factual 7. The dissent notes that "[t]he 299, 307, Commonwealth, Va.App. question.' Hargraves v. 37 557 Commonwealth, (2002) Bynum Va.App. (citing 23 S.E.2d 741 However, 412, 418, (1996)).” although consent is S.E.2d question search question, the ultimate of whether the officer’s a factual de is one of law that we review was reasonable under the circumstances Commonwealth, Kyer appeal. See novo (en banc) (2005) (noting although Court this S.E.2d ” court,’ findings we of the trial give 'deference to the factual "must " satisfy require- findings ‘independently determine' whether those therefore lacked the grandfather apparent authority consent, resulting backpack search and its contents violated Glenn’s Fourth Amendment rights. record,

The when viewed in the most light favorable Commonwealth, establishes that lived with his grand- parents, but did not have control exclusive over the rooms searched. Specifically, grandmother Glenn’s could ingo and, fact, out of the rooms kept personal box her Also, belongings Glenn’s key bedroom. Glenn had house, but neither room he claimed as “his” a separate had Thus, key belonging solely above, to him. as discussed officers could have an objectively formulated reasonable belief that grandfather the had authority the to consent to a search of Glenn’s bedroom.

However, the record also Ferguson establishes that focused his search on the rooms by identified Glenn as those he “slept in.” bedroom, When Ferguson entered the second he saw a pair pants of lying across the bed. Glenn’s clothes were hanging in the closet. only The item in the room belong- not ing to Glenn was a of box clothes that the may may officer or not have seen opened before he the backpack.

Also, backpack closed, itself was not although locked or Block, otherwise sealed shut. United States 590 F.2d Cf. (4th Cir.1978) (although mother could consent to house, search of she could not consent to search of locked room). And, footlocker found in her son’s although there is no evidence suggesting the backpack was tucked under the mat- tress or view, otherwise hidden from Commonwealth v. cf. Sardone, (Su- 10 Mass. L. Rep. 1999 WL 1319236 (mother per.Ct.1999) could not consent to the search of her son’s that knapsack was at least partially under the foot of the in an door), bed area not from visible there were no marks or tags backpack that would indicate its ownership. Commonwealth, of (quoting

mente the Fourth Amendment” Whitfield (2003))). 265 Va. 576 S.E.2d facts, grand From of whether the question these owned, used, backpack father or otherwise controlled the was And, although backpack was located ambiguous, best. “[f|or inside home, of closed con grandfather’s purposes tainers, by party mere of the container a third does possession necessarily give not rise to reasonable belief the third has to consent to a search of its contents.” party authority Basinski, Salinas-Cano, 834; 226 F.3d at see also 959 F.2d at (“To may reasonably hold that an officer find on the of the of a solely presence consent basis [container] would render the Fourth meaningless the home another Amendment’s of such Given aware protection [containers]. by here with police ambiguities present ness officers respect apparent ownership backpack, to the of the we hold that the not infer from police authority merely could such [the (internal ownership quotations the house.” consenter’s] omitted) (third in original)); Tonroy, alteration State v. (2004) (“[C]onsent Kan.App.2d 92 P.3d an of a not necessarily give owner tenant residence does consent to search containers the residence closed within others.”).8 belong

Moreover, clearly not addressed the Su although States, many lower courts preme Court of the United have proving apparent authority held that the burden of “cannot be if an agents, ambiguous met faced with [law enforcement] situation, proceed making nevertheless without further inqui Salinas-Cano, Thus, at if the “do ry.” 959 F.2d 864. officers not learn if the circumstances make it unclear wheth enough, subject to ‘mutual use’ property er the about be searched is analysis that the record 8. The dissent bases its on the initial conclusion police suggested to the that Glenn "[n]o indicates that circumstances preserved private had enclave within the home or had somehow authority grandfather’s undermined the over all areas of his own view, provides support for this home.” In our the record no conclusion veiy clearly only singled and indeed reflects that the rooms out be occupied and searched were those which Glenn indicated he indeed the only supported backpack inference the record is that the reasonable suspected specifically because the officers it be- was searched longed to Glenn.

575 consent, warrantless is person giving ‘then [a] [search] ” (quoting Whitfield, Id. 939 inquiry.’ unlawful without further Waller, 838, accord United States v. 1075); 426 at F.3d F.2d Chiu, (6th Yen United States v. Chun Cir.2005); 857 846 Jenkins, v. People 353, (D.N.J.1993); 22 F.Supp. 361 Cal.4th People 900, 377, 1044, 1093-94 (2000); Cal.Rptr.2d 95 997 P.2d Gonzalez, v. 289, 673, 323, 88 N.Y.2d 644 667 N.E.2d N.Y.S.2d State, (Tex. v. (1996); Riordan 326-27 905 771 S.W.2d Kieffer, State 217 577 App.1995); Wis.2d N.W.2d (Wis.1998). agree. 359-60 We

We have often noted that the touchstone of the See, e.g., Bryant, Fourth Amendment is reasonableness. 471-72, Weathers Common 335; at at Va.App. 573 S.E.2d wealth, (2000). 529 S.E.2d Considering heightened expectation privacy of that exists containers, that, permitted by closed we believe when circumstances, “reasonableness” officers under requires acting third-party attempts consent to make reasonable to resolve any apparent ambiguity ownership in the or control over searched. See closed containers located place being within the Rodriguez, 188-89, 110 at (holding U.S. S.Ct. when law enforcement officers consent to search pursu obtain ant apparent authority, if the “surrounding circumstances conceivably could such that a person be reasonable would doubt and not act upon [that exists] [the consent] then warrantless without further ... [the] [search] inquiry, inquiry without authority actually unless further unlawful added)).9 Hence, exists” (emphasis absent some affirmative indicia that the party consenting general to a search of the premises either owns or maintains some of control level over necessarily 9. types We note that this rule does not extend to all containers, only backpacks—that "historically closed but those—like Salinas-Cano, high degree privacy.” command a 959 F.2d at 864 (noting type important that "the of container at issue is ... an consider- ation"); Jimeno, (Marshall, see also U.S. at 111 S.Ct. at 1805 J., dissenting) (describing the "heart the Fourth Amendment” as the protection repositories papers of containers that are "common for one’s effects”). searched, the place being closed container found within law proceed enforcement officers should not further without first that the third has an interest in the con- determining party party authority tainer sufficient to vest with the To encourage consent to its search. hold otherwise would law deliberately ignorant to remain of wheth- enforcement officers party consenting any er the to the search has interest container, thereby the risk that those heightening closed infringe upon rights officers will the Fourth Amendment the absent owner. case, object

In this not to the although Glenn did backpack, search of his neither did he consent. He was instructed the officers to wait in the room while living Thus, conducted the search of the even Ferguson bedrooms. if object backpack, he had wanted to to the search of his identify backpack was not as given opportunity And, to him until after it belonging opened.10 had been it at as to who ambiguous because was best owned backpack, grandfather and because both Glenn and his were officer should have made steps away, mere reasonable grandfather further and asked either the or Glenn inquiries Salinas-Cano, for to search it. 959 F.2d at permission See so, 864. Because the we hold that the officer failed do search was “unlawful.” Id. sum,

In the facts of this case would “warrant a although grandfather man of reasonable caution in the that the belief’ authority premises,” “had over the those same facts were man caution in the insufficient to “warrant a of reasonable either owned or shared control of grandfather belief’ 188-89, at backpack. Rodriguez, U.S. S.Ct. present the defendant and not 10. This Court has stated that "where thereby relying objecting, prevented on a are not from authority.” given party third with consent to search sufficient Commonwealth, 347 S.E.2d Walls v. (1986) added). Walls, (emphasis grandfather had sufficient As in indicated, However, the search of the house. to authorize thus, and, backpack, extend to the Glenn’s failure that consent does not automatically object not render the search "reasonable.” does omitted).11 the Com- It follows that (internal quotations possessed grandfather to that prove failed monwealth backpack. of the search to the authority to consent apparent not officer could law enforcement And, objective an because had the authori- grandfather that the reasonably have believed search resulting backpack, of the to a search ty to consent that we hold Accordingly, Amendment. the Fourth violated to suppress. motion denying court erred Glenn’s the trial REMEDY APPELLATE APPROPRIATE III. a enters if a defendant who § provides 19.2-254 Code he shall be allowed appeal, on plea “prevails guilty conditional above, this Court Here, as discussed plea.” to withdraw his thereby raising appeal, for petition Glenn’s partially denied opportu- allowed of whether Glenn should be the question only though he plea conditional even his nity withdraw issues to one of the two appeal respect on with prevailed oral following Accordingly, for his plea. forming basis on the briefing additional this asked for arguments, Court following question: Appellant’s effect, partial if does the denial any,

What of Code application on this Court’s appeal for have petition a who enters 19.2-254, that a defendant provides § which allowed to withdraw “shall guilty plea conditional be applica- upon the Court’s appeal,” if on “prevails he plea” § 8.01-678? under Code principles tion of harmless error that an who follow, appellant hold we For the reasons opportunity to an is entitled appeal partially prevails that the further hold guilty plea. We his conditional withdraw however, hold Supreme Court’s recent argues, that the dissent 11. The duty-to-inquire advocated thesis ing Randolph "eschews the Glenn____” opining "it Randolph language from quotes dissent The take affirma impractical require the unjustifiably would be consenting authority individual steps to confirm the actual tive U.S. at —, 126 S.Ct. authority apparent was ...— whose however, above, added). discussed For the reasons (emphasis backpack was not of the to a search grandfather's to consent language quoted The apparent under these circumstances. is, therefore, applicable in this context. not dissent error harmless inapplicable doctrine is context of an appeal and, therefore, from conditional guilty plea, we do not address the remaining whether evidence in case—specifi- cally, oral confessions—provides Glenn’s and written such overwhelming evidence of as to guilt render the trial court’s error beyond harmless a reasonable doubt.

A. an Appellant “Partially Whether Who Prevails”

on Appeal Is Entitled Withdraw His

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

Of the approximately thirty jurisdictions12 that authorize some form of a plea procedure, conditional least four at have rule, statute, adopted—either by Jurisdictions that have or deci 12. plea procedure sion—a conditional similar to that codified in Code State, § following: Sawyer 19.2-254 include the v. 456 So.2d 110 State, (Alaska, (Ala.Crim.App.1982); 1974); Cooksey v. 524 P.2d 1251 24.3(b); 30(b); Cal.App. § Ark. R.Crim. P. Code Cal.Penal 1237.5 & R. Bachofer, People (Colo.Ct.App.2003); v. 85 P.3d Conn. Gen. 54-94a; 11(a)(2); D.C.Super. § R.App. Stat. Ct. R.Crim. P. Fla. P. 9.140(b)(2)(A)(i); 11(a)(2); 11(a)(2); Haw. R. Penal P. Idaho R.Crim. P. 8.09; Ky. (La.1976); Crosby, R.Crim. P. State v. 338 So.2d 584 Me. 11(a)(2); Reid, People R.Crim. P. v. 420 Mich. 362 N.W.2d 655 (1984); 46-12-204(3); 174.035(3); § § Mont.Code Ann. Nev.Rev.Stat. 3:9-3(f); (N.M.1994); Hodge, N.J. R. State v. 118 N.M. 882 P.2d 1 710.70; 15A-979(b); § P. § N.Y.Crim. Law N.C. Gen.Stat. N.D. 11(a)(2); 135.335(3); R.Crim. P. Ore.Rev.Stat. Tenn. R.Crim. P. 37(b)(2)(i); 25.2(a)(2); Tex.R.App. Tex.Code Crim. art. 44.02 & P. Proc. 11(i); 11(a)(2); P. Utah R.Crim. Vt. R.Crim. P. Va. P. W. R.Crim. 11(a)(2); 971.31(10); 11(a)(2); Wyo. § Wis. Stat. Ann. P. R.Crim. see 11(a)(2). also Fed.R.Crim.P. appeal on prevails partially who held that a defendant plea. his conditional to withdraw opportunity to an entitled Juarez, 903 P.2d 120 N.M. State in example, For Appeals ob- Court the New Mexico (N.M.Ct.App.1995), could have evidence that, “if admitted improperly served there is a fair to plead guilty, decision influenced a defendant’s Id. plea.” to the contributed the evidence inference is “partial- a defendant who Thus, involving 248. situations it “remand so successful,” concluded that must the court ly to reassess may opportunity have the that Defendant plead guilty in this case and either admissible evidence trial.” Id. at 249. proceed to Piorkowski, 672 A.2d State 236 Conn.

Similarly, that, (1996), Court observed Supreme the Connecticut statute, may suppression “there be applicable under the state success,” only reasoning partial appellate issues that result on a claim suppress denial of motion based “[t]he conceivably “yield an search and seizure” could unreasonable all, not of the evi- suppressing part, an result but appellate Id. at 930-31. The dence as a result of the search.” gathered par- an has Piorkowski appellant court concluded when plea, appro- of a conditional tially prevailed appeal permit as to remedy would be to remand so priate appellate ... to reevaluate their state and the defendant “both the adopt a jurisdictions expressly declined to conditional that have For rule, applicable or see State v. plea practice the absence of an statute 205, 238, (Ariz.Ct.App.1976); Arnsberg, Ariz.App. 240 27 553 P.2d 770, (1994); State, Ga.App. People 442 836 v. v. 212 S.E.2d Hooten 509, 534, Gonzalez, 607, Ill.App.3d 730 N.E.2d 545 313 246 Ill.Dec. 842, (Iowa 1983); Tobin, (2000); Bruno v. v. 333 N.W.2d 844-45 State State, 673, (1993); Snyder, v. 12 632 A.2d 1192 Commonwealth 332 Md. Lothenbach, (Mass.1981); 960, Mass.App.Ct. State v. 427 N.E.2d 500 821, Parkhurst, 854, (Minn.1980); 121 N.H. 857-58 State v. 296 N.W.2d 373, (1981); Maxwell, St. 194 N.E.2d Tabor v. 175 Ohio 435 A.2d 522 605, (Ohio 1963); Bartley, & C.4th 609 v. 8 Pa. D 856 Commonwealth Downs, 1356, Soares, (R.I.1993); (1991); State v. v. 633 A.2d 1356 State State, 141, (S.C.2004); Lineberry also v. 361 S.C. 604 S.E.2d 377 see (vacating guilty plea a entered after (Ind.Ct.App.2001) 747 N.E.2d 1151 erroneously assured the defendant prosecutor and the trial court suppress, pretrial appeal of his motion that he could denial guilty involuntary). plea reasoning those assurances made the 580

respective positions in light some, of the availability of but not all, of the gathered evidence as a result of the search.” Id. at 15; 931 n. Tantalo, (2d accord United States v. 680 F.2d 903 Cir.1982); United 309, (9th States v. 69 Mejia, F.3d n. 317 8 Cir.1995); Hill, People 731, 117 Cal.3d 393, Cal.Rptr. (1974); P.2d Dinsmore, State 182 Or.App. 49 P.3d (2002), aff'd, 336 Or. (2004); P.3d 1120 see also Leake, United (6th States v. Cir.1996) F.3d 420 & n. 21 (articulating a case-specific standard that an “requires exami nation of the degree of success and the probability that the excluded evidence would have had a material effect on the defendant’s plead decision to guilty”). agree

We with the reasoning these decisions. There is nothing in language § of Code 19.2-254 indicating that an appellant prevail must on appeal with respect to every issue that formed a basis for his Where, conditional plea. here, defendant has sought to exclude two separate bodies of evi- dence on different constitutional grounds, and this Court only reverses the trial court’s decision on one of those grounds, two it would be unduly punish harsh to that defendant for exercis- ing statutory right to appeal the denial of both motions suppress. Holding that a defendant who “prevails part” not entitled to withdraw his conditional guilty plea would then have practical effect of forcing defendant to just select one appealable issue and any waive other constitutional objec- tions he might have to the remaining evidence. This does not comport with either 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, we hold that appropriate remedy is to remand the case “so that Defendant may have opportunity to reassess the admissible evidence in this case and plead either guilty proceed to trial.” Juarez, 903 P.2d at 249.13 Because Glenn has prevailed on the 13. We note that there right conditionally is no plead constitutional 19.2-254, guilty § under Code the Commonwealth and the

581 recov- evidence suppress physical motion to merits of his because, dis- for the reasons and backpack, from the ered error III(B), of the harmless supra, application in Part cussed to allow this case we remand inappropriate, doctrine would be to with- he “wishes to decide whether opportunity trial,” or, “in limited light [his] plea go and draw [his] Dinsmore, 49 it.” P.3d not to withdraw appeal, success on 838.14 may be guilty plea before it approve a conditional

trial court must and the trial court Accordingly, both the Commonwealth entered. ultimately any presented to over issues share control with the defendant Lace, generally 669 F.2d appeal. See United States this Court on (2d Cir.1982) (“If upon plea condition that more n. is tendered 53 5 satisfy appeal, court should is reserved for the district than one issue significant to the outcome of the the reserved issues are itself that case.”). note, jurisdic- argues, some federal 14. We as the Commonwealth guilty plea inception if a conditional is void at its tions have held that attempts appeal that are non-case- the defendant to reserve issues for See, (4th e.g., Bundy, dispositive. 392 F.3d United States Second, Third, Fifth, Cir.2004) (citing precedent Seventh from the Circuits). These cases have their roots in the Official Comments to the Rule, only suggest plea reserve Federal which that a conditional should Specifically, right appeal case-dispositive issues. the Official governmental requiring Comment notes that consent for conditional pleas appropriate government unique position in a “[t]he because is case-dispositive, would be to determine whether the matter at issue and, litigation, right to refuse party as a to the should have an absolute Comment, delay.” potentially prejudicial Official Fed. to consent to 11(a)(2). Hing, generally WongChing R.Crim.P. See United States v. (2d Cir.1989) (discussing "disposi- rationale behind the F.2d contrast, per- § requirement). Code 19.2-254 tiveness” In the text of right, appeal judgment, from the "reserv[e] mits defendant any specified pretrial to a review of the adverse determination added). "dispositiveness (Emphasis Because there is no motion.” itself, we decline the requirement” evident on the face of the statute by judicial generally add one fiat. See Commonwealth’s invitation to 1994) (Utah Montoya, (declining to add a P.2d State v. ll(i) "dispositiveness requirement” of the Utah Rules of Crimi- to Rule Procedure, a defendant reasoning that text of the rule "allows nal plea right appeal 'the adverse entering a conditional to reserve the motion,’ just any dispositive specified pre-trial not determination of (i)) original)). (quoting (emphasis in Accord- ones” Utah R.Crim. P. 11 appeal ingly, the issues Glenn reserved for we do not address whether might "non-case-dispositive," to render his conditional be deemed so as plea inception. void at its

B. Applicability the Harmless Error Doctrine however, The Commonwealth argues, that Glenn has not “prevailed” on appeal, that reasoning the remaining evidence in the case—specifically, Glenn’s statements to police— sufficient, alone, would be standing to support his conviction. Because “Glenn nomay if longer prevail even the suppression motion as to the search of his home was erroneously denied,” the Commonwealth that concludes the trial court’s error “was harmless.” disagree. We

No Virginia appellate decision has ever ques addressed the tion of whether the harmless error doctrine is in applicable context of appeal an from a note, conditional guilty plea. We however, that, jurisdictions of the adopted have some form of a plea procedure, conditional the overwhelming major ity has apply declined to a harmless error analysis cases involving conditional guilty plea. The two cases that are generally considered the most authoritative this respect are Grant, People 366, 45 N.Y.2d 429, 408 N.Y.S.2d 380 N.E.2d (1978), Hill, and People 12 Cal.3d 117 Cal.Rptr. (1974), 528 P.2d part overruled in on other grounds by People v. DeVaughn, 18 Cal.3d Cal.Rptr. 786, (1977). P.2d 872 Grant,

In the New York Appeals Court of held that the trial court improperly denied the defendant’s motion to suppress Although confession. urged state to court affirm based on a harmless error analysis, the court vacated the conditional guilty plea and remanded for proceedings. further In rejecting the state’s to request apply a harmless error “[bjecause analysis, that, the Grant court observed harmless error rules were verdicts, formulated to review trial they are difficult to apply guilty pleas.” 408 N.Y.S.2d “[wjithout N.E.2d at 264. The court reasoned a trial record, there will if any be little evidence in the apart from the proof excluded,” and, which should have been “without a verdict, predicate there is no determining for what causal effect the error or might had have had upon the fact finder.” Id. The Grant court therefore held that appropriate possibility is a reasonable “whether there should be inquiry Because Id. plea.” “[t]his contributed to the that the error rarely appellate equipped an court is one which question [ ] the court conclud- speculation,” resorting to answer without the case for further required it to remand ed was proceedings. Id. Hill, Court remanded

Similarly, Supreme the California guilty conditional withdrawal of the defendants’ permit the evidence which defendants pleas though even “bulk of they if would indeed be admissible were sought suppress There, court 393, 528 P.2d at 28. Cal.Rptr. be tried.” 117 harmless as a basis for concept reasoned that error “[t]he setting clearly inappropriate” in such a is according relief means of simply intelligent assessing is no because “[t]here suppress of a erroneous refusal to impact particular the “[ujnlike that, evidence.” Id. at 29. The Hill court observed at all in the ordinary post-trial nothing the there is appeal, or the is record indicate what evidence defenses defendant Moreover, of capable producing on his own behalf.” Id. “[t]he strategic plead guilty considerations which lead an accused pursuant plea bargain hinge only to a will not on frequently evidence, the and of the but quantum quality prosecution’s probable also on the effectiveness of the defenses and evidence incriminating which the defendant has counterbalance the Thus, Id. the of certain although, evidence.” exclusion “[a]fter evidence, may items of the case continue to prosecution’s court,” to an the defendant appear appellate invulnerable “may impeaching, discrediting have or believe he has means of evidence, on casting doubt on such and the items excluded most difficult appeal might very posed be ones which strategic problems “[o]nly for the defendant.” Id. Because the accused and his counsel are aware of what favorable them,” it evidence is the Hill court reasoned that available not, assurance, that an any appellate could “with conclude court, knowledge, does not have the of that can which benefit at an assessment of whether the consistently arrive accurate knowledge defendant after that some again plead guilty would not is to challenged suppressed.” but all evidence be

Id. “To the contrary, unacceptable an degree appellate speculation would necessarily inject itself into the application a context.” Id. of the harmless error in such concept the Hill court concluded reasons, For that, these view “[i]n of the magnitude of the consequences guilty plea a and the lack of an adequate upon basis which an court appellate can evaluate the impact error, of a trial ... court’s the doctrine of harmless error inapplicable the context of an appeal Id. at 29. under conditional guilty plea [California’s statute].” Thus, accused must “[t]he be afforded an opportunity to personally whether, contrary elect to the trial court’s ruling, suppression of certain items of evidence would alter the sufficiently situation favorable manner so as to render a Id. at 29-30.15 plea of not guilty strategically preferable.” Virtually without exception,16 every subsequent appellate decision expressly addressing issue has held that argues 15. The presented dissent unlike the circumstances in Hill Grant, this Court does have a sufficient record from which to conduct a analysis—specifically, proffer harmless error tendered parties prior entry argu- of the final order of conviction. This ment, however, appropriate inquiry overlooks the fact that the appeal plea from a conditional is not whether there is sufficient evi- conviction, rather, support dence to but “whether there is reason- possibility Grant, able plea." that the error contributed to the added). Thus, (emphasis N.Y.S.2d 380 N.E.2d at 264 unless it is why clear from the record the defendant decided to enter a conditional guilty plea, strength remaining, unsuppressed of the evidence does question not resolve the again plead of whether "the defendant would guilty knowledge after challenged that some but not all of the evidence Hill, 393, 29; suppressed.” Cal.Rptr. is to be 117 528 P.2d at see also Prosise, 306, 318, Haring v. 462 U.S. 103 S.Ct. 76 L.Ed.2d (1983) (noting plead may 595 that "a guilty defendant’s decision to have motivations”). any number of [] acknowledge opinion, 16. We in one recent the Tenth Circuit seemingly implied using analysis that it was a harmless error in a case Rivera-Nevarez, involving guilty plea. a conditional See United States v. (10th Cir.2005). case, 418 F.3d 1104 In that the Tenth Circuit affirmed because, the district court’s denial of a motion to dismiss an indictment although interpretation the district court erred in its of the federal statute, failed, law, statutory defendant as matter of to meet the requirements for a collateral attack on his conviction. Because the resolution, appropriate although district court reached the for the

585 of an in the context inapplicable error doctrine is harmless See, e.g., United States guilty plea. from a conditional appeal (1st Wisconsin, Cir.1981); 562 Weber, 668 F.2d 552 Jones Dinsmore, (7th Juarez, 249; Cir.1977); 903 P.2d at F.2d 440 Monahan, 387, 838; 76 251 N.W.2d 49 P.3d at State v. Wis.2d Comment, 421, (Wis.1977);17 Fed. 426 see also Official 11(a)(2) that, in conditional (noting involving cases R.Crim.P. arguably of the error rule is guilty pleas, “invocation harmless (internal omitted)); Hooten v. impossible” quotations cf. (1994) 836, State, 770, Ga.App. (overruling S.E.2d pleas and that conditional would no precedent holding earlier Georgia, reasoning in the state of that longer be effective had, in the in some pleas past, conditional led “reversals to show that though appellants they cases even have failed though might were harmed” and even “a full trial record show error,” only harmless that the harmless error doctrine noting inapplicable place” was those cases because “no trial took way and “there is no to determine whether the error asserted reason, wrong the Tenth Circuit concluded that the denial of the motion to dismiss was "harmless.” See id. 1111. The case Rivera-Nevarez not, then, sense, apply did the harmless error doctrine in its traditional required holding which would have the lower court erred but, excluding light sufficiency certain evidence of the of the unchal- evidence, Rather, lenged merely error was the case harmless. result, "right wrong applicable held that the reason” rule is in the plea. context of a conditional See id. contends, footnote, unpersuasive 17. The dissent in a that Monahan is holding by subsequent because its has been limited cases from its own 604, jurisdiction. Armstrong, See State v. 225 Wis.2d 591 N.W.2d (Wis.1999) curiam). (per We note that the order cited support proposition appeal dissent in of this did not involve an of a rather, guilty plea, appeal plea agreement. conditional but of a See (Wis.1999) Armstrong, State v. 223 Wis.2d 588 N.W.2d ("Armstrong plea agreement pled guilty entered into a in which he homicide, second-degree person, jumping reckless theft from a and bail Semrau, added)); (emphasis as a habitual offender.” see also State v. (Wis.Ct.App.2000) (discussing 233 Wis.2d 608 N.W.2d applying Armstrong appeal plea a are, and in the context of an from agreement). agreement plea guilty plea A and conditional course, separate legal arrangements. Regardless, and distinct we cite merely general jurisdictions, Monahan as evidence of a trend in other controlling not conclusive in our own. 586 prejudice appellant”).18

resulted agree We with the rationale articulated these cases. merits, there has been no on Where trial this Court has no way knowing whether the defendant “has im means of or peaching, discrediting, casting doubt” on the Common evidence, wealth’s and “[o]nly the accused and his counsel are Hill, aware what favorable evidence is available them.” Cal.Rptr. Any P.2d 29. discussion of whether denial of a suppression erroneous motion was “harmless” would, therefore, “an require unacceptable degree of appellate Id.19 speculation.” §

We further note that expressly Code 19.2-254 provides that, if prevails a defendant on appeal, may he she with- guilty plea. draw the conditional As recently by noted Oregon of Appeals, “[ejmploying Court a harmless error anal- Dinsmore, ysis would defeat that statutory right.” 49 P.3d at remand, (concluding the defendant “may, decide trial, that she plea wishes withdraw her togo or she choose, in may light of her limited on appeal, success not to accompanying 18. The discussion in the Official Comments Federal Rule 11(a)(2) plea might addressed the concern that the "conditional device” appellate questions "cause an court to consider constitutional which could otherwise have been avoided invocation of the doctrine of particular harmless phrasing error.” This leads to the inference that Advisory the Federal Committee also believed that the harmless error application doctrine was ill-suited for in the context of a conditional plea. excluding physical 19. We note because Glenn has succeeded in crime, alleged only remaining evidence that linked him to the extrajudicial evidence on the record is his confession. In order for that conviction, uphold confession to constitute sufficient evidence to it by independent must be corroborated evidence. v. Common Jefferson wealth, (1988) ("[A]n extraju 369 S.E.2d dicial confession of an accused that he committed the offense with not, uncorroborated, charged proof adequate which he is alone and However, delicti.”). trial, corpus of the because there has been no it next-to-impossible resorting specu would be for this Court—without adequately lation—to determine whether that confession is corroborat remaining Accordingly, applica ed the Commonwealth’s evidence. especially inappropriate tion of the harmless error doctrine would be under these circumstances. it,” but that ... has left that choice legislature withdraw “[t]he defendant”). to reasons, that,

For these we hold when an appel any lant prevails appeal respect on with to issue he has 19.2-254, that preserved appeal § for under Code statute the to implicitly permits appellant choose between withdraw trial, his ing guilty plea proceeding leaving guilty and intact.20 plea expressly We decline to consider whether the remaining Commonwealth’s evidence constitutes such over whelming guilt evidence of as to render the trial court’s erroneous denial of motion to suppress Glenn’s “harmless.” Accordingly, we remand this case to trial permit the court to Glenn, chooses, if he so his conditional guilty plea withdraw proceed and to trial.

IV. CONCLUSION Although grandfather’s consent vested the law enforce- ment officers with the to conduct a authority general search of premises, hold that an objective police we officer could not reasonably have grandfather believed also possessed to consent to a backpack. search Glenn’s Thus, we hold the trial court erred in denying the motion to Moreover, suppress. prevailed because Glenn has on the merits of forming one the issues the basis for his conditional not, contends, purport 20. We do the dissent to hold that Code implicitly by § repealed subsequent 8.01-678 has been enactment of § § provides Code 19.2-254.Code 8.01-678 plainly appears [w]hen it from the record and from the evidence given parties at the trial that the have had fair trial on the merits reached, justice judgment and substantial has been no be shall defect, any imperfection, arrested or reversed ... for or omission in record, any or for error on committed the trial. Court, According Virginia Supreme applicability to the of this upon alleged substantially doctrine turns "whether the error influenced Commonwealth, jury." Clay 262 Va. 546 S.E.2d (2001). involving plea, In cases a conditional there is no fact may finder whose verdict have been influenced the error. We do not hold, then, any way § partially repealed that Code 19.2-254 has is, § § very Code 8.01-678—we hold instead Code 8.01-678 its language, inapplicable. guilty plea, we reverse Glenn’s convictions and remand this case to the him if provide opportunity, trial court to with the chooses, he plea proceed so withdraw his conditional trial.

Reversed and remanded.

KELSEY, J., dissenting. ante, The majority opinion imposes duty inquire, 574-576, 214-216, Va.App. at officers S.E.2d appears any ambiguity scope whenever there of their consensual searching. proposition This strikes me as an unwarranted from Fourth departure existing Amendment doc- trine, historically which has permissible scope examined the a in solely search terms of reasonable reliance on actual or apparent authority. standard, I

Applying agree the traditional with the trial court that the officers in this case not act unreasonably by did relying homeowner, on the unqualified consent Glenn’s in grandfather, everything search his home and it that one would within ordinarily expect scope be of that con- unlocked, unidentified, an backpack lying sent—like unclaimed particularly on the floor of a room within the home. This objected true here because Glenn never once to the search of the room or the did backpack. express imply Nor he anything an exclusive interest in suggesting privacy either.

I majority opinion also read the to hold that the conditional statute, 19.2-254, § guilty plea effectively repealed Code has statute, 8.01-678, § by implication the harmless error Code appeals following guilty plea. Virginia for all a conditional No proposition. anything case can be cited for this Nor does plea the text of the conditional statute or in the contextual compel the statute such a conclusion. Had logic underlying Assembly intended to render the harmless error General as a of law to conditional inapplicable guilty statute matter I it pleas, believe would have said so. therefore, I dissent. grounds, respectfully

On both

I. motion, we must from a denial a appeal suppression “On to the light review the evidence most favorable Com- monwealth, any it the benefit of reasonable inferences.” giving Commonwealth, Kyer S.E.2d (en (2005) banc) (citation omitted). man, just Believing that Glenn had robbed officers went to home of grandparents Glenn’s where had Glenn been for about months. the door living two Glenn answered immediately was arrested. Glenn’s The officers asked grandfather permission for his search home. Unable speak condition, of a grandfather because medical nodded agreement. his grandfa- head The officers then asked the ther if paid Glenn rent. The shook grandfather his head no. When if asked Glenn was in fact his grandson, grandfather nodded yes.

The bedroom, officers went to Glenn’s identified found, slept among “room he in.” The officers other things, grandmother’s boxes containing clothing in Glenn’s room, bedroom. The went to officers then a second identified There, Glenn as room that he also in on slept occasion. the officers discovered a backpack Nothing on the floor. suggested locked, to the was backpack officers used for any particular purpose, any particular person. or owned by time, During nearby objections this Glenn stood and voiced no or concerns about opened the search. The officers the back- pack and found in implicating suspected evidence Glenn the robbery.

While in police custody, robbery. Glenn confessed to the given He had warnings prior been Miranda on three occasions to the not or request legal confession. He did counsel insist Instead, upon his right police remain silent. while at the station, wrote out a full Glenn confession hand which he admitted he accomplice and an robbed the victim at gunpoint. gave Glenn also a verbal confession in he which robbery alerted the officers where the used in weapon the exactly weapon later found found. Officers could be said it would be. where Glenn The suppress. motions to trial, filed two

Prior to Glenn item incriminating from evidence the to exclude sought first assert- (the backpack, in the phone) cell found victim’s stolen Amendment. The the Fourth the search violated ing Fifth confession on admissibility of his challenged the second however, not, argue that did grounds. Glenn Amendment Nor tainted his confession. backpack his somehow search of appeal. he make this claim does took the grandmother hearing, Glenn’s suppression At the was his. backpack that the his and testified stand on behalf not however, pay that Glenn did conceded The grandmother, over, to, any or control he have exclusive access rent. Nor did characterization of the to the agreed in the house. She room and “his bedroom.” “Keith’s room” room searched as first hers, she were in Glenn’s bedroom clothes The woman’s room. doors of either no locks on the admitted. There were reasoning suppress, motion to denied Glenn’s The trial court “without given to search was consent grandfather’s that the consent, the of this scope The qualification.” reservation held, apparent the officers with provided court trial question no reason to The officers had backpack. open out, knew they court because authority, pointed this home, rent pay did not Glenn owned grandfather Glenn’s found was there, personal property” “mixture of stay had bedroom, Glenn nothing suggested principal Glenn’s sure, the To be backpack. interest privacy an exclusive search, observed found, at the present “was trial court Glenn his grandfa- to countermand no action and took the search to the objected that he by advising permission ther’s claimed he he later of the residence portion of that search occupied.” preserving guilty plea a conditional trial, entered

At finding After his convictions. appeal opportunity proffer factual trial court received voluntary, to be plea that Glenn reported prosecutor The from the Commonwealth. from accomplice and an robbed the victim at gunpoint, taking him phone robbery and cash. Glenn to the and cell confessed police weapon. advised the where find the The trial court if testimony.” asked Glenn he would “accept proffered they Glenn’s counsel said did. His counsel added that the the weapon upon found based confession.21 The Glenn’s trial colloquy court ended the this way: Purnell, Mr. you evidence, that if stipulate do

Court: proven, would be sufficient to find the defendant guilty? I do, Your Honor. Glenn’s Counsel: Court: Does the any defense wish to other offer evidence the proffer?

than

Glenn’s Counsel: No. stand, you please Would Mr. Glenn? Based on

Court: heard, evidence has you Court the Court find will as guilty charged.... upon

Based the Commonwealth’s proffered (stipu- evidence sufficient) lated Glenn guilty plea Glenn’s (previous- ly to be found the trial voluntary), court convicted Glenn robbery, 18.2-58, § violation of Code and conspiracy to commit robbery, in § violation Code 18.2-22.

Glenn then petition filed a for appeal that his asserting should convictions be overturned because trial court erro- neously denied his two motions to suppress. Pursuant 17.1-407(D), § Code of our three-judge panel Court rejected Glenn’s challenge to admissibility of his confession. The Court held case, under the circumstances this “failed to make a clear and unambiguous right assertion of his Court, remain silent.” however, The granted further re- view of Glenn’s challenge admissibility of the evidence found during the backpack search.

This appeal posture. comes to us an unusual The Court has already ruled that the trial court properly denied Glenn’s motion suppress his confession. It necessarily follows that weapon Glenn's counsel 21. gun,” also claimed the was a "BB but the replied Commonwealth "it sure like doesn’t look one." correctly trial thé evidence Glenn’s accepted the court it led corroborating the evidence that confession with (coupled in of the robbery) used in weapon support to the police the For two guilt. appellate purposes, questions court’s finding to remain answered: be denying sup-

A. trial court err in the motion Did the found the back- press incriminating during the evidence pack search? so, given holding If such error harmless our any

B. was motion to correctly trial court denied Glenn’s that the admissible, making it fully his confession suppress support stipulated of Glenn’s along proffer, with guilty plea? exclusionary

The concludes the Fourth Amendment majority considering backpack court rule forbids the trial from law, and, of harmless as a matter of doctrine evidence superseded by guilty plea has the conditional error been statute. I with both conclusions. disagree

II. Suppress—Scope A. The of Consent to Search Motion violated officers Though question the ultimate whether “we defer scrutiny, de novo triggers the Fourth Amendment fact’ ‘due findings give of “historical and to the trial court’s those resident drawn from facts weight the inferences ” v. Com Slayton law enforcement officers.’ judges and local (2003) monwealth, 101, 105, 582 S.E.2d 449-50 Va.App. 41 omitted). (citations “the must To defendant prevail appeal, motion, suppression trial court’s denial of show that the light in the most favorable considered when evidence (quoting Id. was reversible error.” prosecution, Whitfield Commonwealth, 358, 361, 464 265 576 S.E.2d v. Va. (2003)). consent ease, argues grandfather’s that his

In this opening backpack not extend to search home did do I. disagreed, court contents. The trial examining its 593 rule, a general wholly As “a search authorized consent is 45 at 218 Kyer, Va.App. (quoting valid.” 612 S.E.2d Bustamonte, 218, 222, v. Schneckloth U.S. 93 S.Ct. (1973)). L.Ed.2d “Police officers act full accord with It they the law when ask citizens for consent. reinforces the rule for the citizen to police law advise the of his her for wishes and to act on that understand reliance Commonwealth, 682, 696, ing.” Barkley (2003) 234, 241 S.E.2d United (quoting Drayton, States (2002)).22 U.S. 122 S.Ct. 153 L.Ed.2d 242 Consent to search can be given by one with actual or apparent authority. authority Actual exists if the consent ing party privacy has a in the premises interest to be searched, thus, and a right concomitant to waive interest Matlock, and authorize the search. See United States v. 415 164, (1974), 170-71, 94 988, U.S. 39 242 Appar S.Ct. L.Ed.2d ent authority if it merely exists to a appears reasonable officer that the consenting party “authority premises.” has over the 177, 188, 2793, Illinois v. 497 Rodriguez, 110 U.S. S.Ct. 111 (1990). L.Ed.2d 148 parties When multiple share privacy interests in the premises, any one of them with “common premises” over the to may consent the search de spite the lack of express concurrence possessing others privacy 181, 110 shared interest. Id. at at 2798. S.Ct.

Here, trial grandfather the court found that the owned the home and consented to its police search. The knew Glenn was staying in his grandfather’s home and confirmed that Glenn did not facts, have the status of a renter. From these the police ample had reason to accept grandfather’s the consent to search the and every home room in it. No circumstances police suggested to the that Glenn preserved had a private the enclave within home or had somehow undermined "presence presents question.” Hargraves 22. The of consent” "a factual Commonwealth, 299, 307, (2002) Va.App. 37 557 S.E.2d 741 Commonwealth, (citing Bynum v. Va.App. 23 477 S.E.2d (1996)). defer, plainly wrong, 753 We thus unless to the factfinder give weight "due inferences from drawn those facts resident (citations omitted). judges and local law enforcement officers.” Id. 594 own home. The authority over all areas

grandfather’s therefore, boundary by no crossed Fourth Amendment police, slept. two which Glenn searching either bedrooms crossed, boundary argues, when But was and looked inside. Consent backpack opened searching for specifically requested should have been majori specificity, reasons. such backpack, Glenn Absent duty inquiry” have a of “further ty opinion agrees, officers situation” any “ambiguous concerning whenever there is Ante, applies it to “closed containers.” the consent as scope 574-576, 214-216. 633 at I believe this S.E.2d inconsistent with settled duty inquiry” new of “further be Fourth Amendment doctrine. search con space includes consent

Consent search reasonable officer could space tainers within that where a Florida the consent to extend to the container. See construe Jimeno, 1801, 1804, 114 L.Ed.2d S.Ct. U.S. automobiles, Wyoming v. (1991). principle applies This 302, 119 1297, 1302, 143 Houghton, L.Ed.2d S.Ct. U.S. States v. United (1999), physical premises, as well (7th Cir.2000). 1038, 1041-42 “The rule Melgar, 227 F.3d also to applies found automobiles regarding containers al., 27 J. Moore et Moore’s in premises.” found containers (3d ed.2006). 641.44, Federal Practice grant § “A at 641-151 to search premises of consent to includes consent search unless the found within the officers premises closed containers is information that the container not under the have reliable Id. add (emphasis of consent.” granting control the person ed). a from the that “lawful

This stems observation conclusion to the entire area generally of fixed extends premises search found and is not may in of the search be object which the of or separate entry open- acts limited the that possibility States the search.” United to may complete be ing required Ross, 2170-71, 72 820-21, 2157, 798, 102 S.Ct. 456 U.S. (1982). may a home The consent search L.Ed.2d 572 closets, chests, “authority open reasonably include the drawers, in of object and containers” which the the search 821, may be found. Id. at at 2171. a 102 S.Ct. “When its legitimate way, purpose search is under and when its and defined, limits have distinctions between precisely been nice closets, drawers, containers, home, or and the case of a seats, trunks, glove compartments, upholstered between vehicle, must wrapped packages, give way the case of the interest in the prompt completion and efficient of the task containers, reasoning at hand.” Id. This to all “applies equally 822, it indeed we believe must.” Id. at 102 S.Ct. at 2171.23 Glenn’s duty-of-inquiry argument, particularly the of version it the accepted by majority, inverts the reasonableness test the Fourth Amendment. The constitutional standard forbid- ding retooled, unreasonable in effect, searches has been demand the most reasonable searches. Under the convention- view, al situation” “ambiguous majority, described ante, 574-575, 214, at Va.App. at a fact simply S.E.2d pattern where reasonable officers differ as scope could to the of apparent They authority. may get it wrong, Rodriguez, 497 186, 2800, U.S. at 110 S.Ct. at they but nonetheless should be given the benefit of the doubt where people reasonable could construe the circumstances differently. As the Seventh Cir- explained, cuit has real question for way closed container searches is which

the risk of uncertainty should run. Is such a search permis- only police sible if the positive knowledge have closed container is also person under the who originally consented to search ... or is it permissi- if ble do not have reliable information that the container is not under the authorizer’s control. conclusion, majority opposite

23. The part, comes based on the belief, ante, 569, 212, Va.App. see "Clearly, at at S.E.2d 'an heightened expectation privacy individual has a in the contents of " however, proposition, only closed container.’ This was clear to the (from comes), quoted two-Justice dissent in Jimeno language which the majority's reasoning not from the holding. Jimeno Florida Jime- no, (1991) 500 U.S. 111 S.Ct. 114 L.Ed.2d 297 (Marshall, J., Stevens, J., ante, dissenting). & See also line, (where & 575 n. 633 S.E.2d at last & 215 n. 9 dissent). majority quote continues to from the Jimeno Rejecting in Melgar, (emphasis original). 227 F.3d at 1041 noted the the Seventh Circuit duty-to-inquire argument, express rejection by a doctrine its impracticability such in Court other contexts: Supreme the United States duty inquiry] A a of further contrary [recognizing rule It would impose police. an burden on the impossible would never closed containers within they mean that could search rooms) asking dwelling person hotel without (including a every given they ex ante about item being whose consent possibility that is no encounter. note there might We searches, the Supreme for because such a rule automobile already this of container search type Court has authorized Ross, Our Houghton, supra. in See supra; that context. part Houghton on the discussion conclusion here rests rule on general that the container rests indicates not depend Fourth Amendment law do principles of of automobile searches. special attributes standard, therefore, does not forbid proper Id. at 1042. The “ambiguous it an search whenever involves container 574-575, ante, at 214. situation,” 633 S.E.2d only when no prohibition applies The Fourth Amendment scope of consent—when interpret officer could reasonable authority premises—to over the given by apparent one with premises. on the include containers found general consent search “includes way, Stated another the premises to search containers found within consent closed information that the container the officers have unless reliable person granting control of the consent.” is not under the 641.44, Practice, (empha- § at 641-151 Federal supra, Moore’s (7th Ladell, added); 127 F.3d sis see United States Cir.1997) authority to “apparent (holding that mother had bedroom, including a her adult son’s consent” a search of bedroom). found in the vinyl bag closed the United States principles, these traditional Reinforcing — U.S. —, —, Supreme Georgia Randolph, Court (2006), recently ad 164 L.Ed.2d 208 126 S.Ct. doctrine of the underpinnings apparent dressed as applied to the consent” situation. Court “co-occupant The pointed police “widely out must be to on permitted rely expectations” discerning shared social when au- apparent the thority of one to a search in co-inhabitant consent to of an area Id. at which another has a dual privacy co-inhabitant interest. 1521. permission,” however,

“Disputed that reliance undermines because no reasonable officer could on rely one co-inhabitant’s apparent authority to for speak person another when the is, spoken moment, at that very “expressly for con- refusing Id. sent” to search. at 1526. But if he does not the object, apparent authority the co-inhabitant’s remains secure. As in Randolph majority conceded, the line;

we to admit have that we are a if drawing fine a potential defendant with in self-interest in fact objecting is at the objects, door and the permission co-tenant’s does not a search, suffice for reasonable the potential objec- whereas tor, nearby but not invited to part take the threshold loses colloquy, out.

Id. at This approach places 1527. objector the burden on the to objection. assert his As Randolph explains, very for the reason that

it would be unjustifiably impractical require to police the to take steps to the actual a affirmative confirm of consenting individual whose authority was apparent, we think it would limit needlessly capacity the the police respond to ostensibly legitimate field if opportunities the we were to hold that required reasonableness take affirmative steps find a co- potentially objecting tenant before on the acting permission they already had received. ready There is no reason to believe that efforts invite a refusal cases, would make a in many difference every whereas co-tenant consent case would turn test into about the adequacy police’s of the efforts consult with a potential objector. added). reasoning of (emphasis Randolph, The

Id. 1527-28 by therefore, duty-to-inquire thesis advocated eschews the majority. adopted Glenn and here, court these I believe trial Applying principles officers gave factual circumstances correctly held consent to search grandfather’s no to believe that the reason floor backpack laying his not house did include house. owned grandfather one the rooms The home, all, prerogatives after and had not encumbered relation- any into sort of contractual entering homeowner of relationship His was not one ship with Glenn. with Glenn landlord-tenant, backpack but of The grandfather-grandson. place It in some not locked. was not found secretive was on backpack No information the plain hidden from view. it speculate to we were to belonged—unless revealed whom The backpacks. but use grandsons, grandfathers, that never bed- backpack principal officers not find the Glenn’s did held, was Finally, though room. trial court the search,” no he “took “present at the search” and “observed the nev- permission” and grandfather’s action to countermand his objected. once the that he er advised circumstances, fully I with the trial court agree Given these to the house was “with- that consent search grandfather’s the a of the or included search qualification” out reservation backpack. Nothing pattern put in this fact officers using had been from grandfather notice that the excluded any privacy interest backpack or that Glenn asserted exclusive officer, therefore, scope could construe the it. A reasonable of to search his home of the consent grandfather’s unidentified, unlocked, unclaimed an permit opening of on the floor. backpack lying Guilty Pleas & Harmless Error Conditional

B. Fourth violated the concluding After the officers then majority backpack, inside the by looking Amendment this does not apply error statute holds that the harmless disclaimed, ante, Though of case as a matter law. appears 221 n. reasoning at 587 n. 633 S.E.2d 19.2-254, statute, § guilty plea be that the conditional Code a process inherently incompatible creates so the harmless with statute, § 8.01-678, error has implicitly Code former the latter in all conditional repealed appeals involving guilty restated, pleas. wholly No matter how this assertion is unper- suasive me. with, begin

To the harmless error is no concept mere prudential, judge-made appellate doctrine of review. It ais mandate, of legislative part statutory early our since law 1900s, limiting power Virginia the ad of judicatory appellate courts. elsewhere, may

Whatever may be law whatever it State, have been this adoption aforetime since the of the of Code 1919 there has in this existed State statute which puts limitation on the powers this court reverse the judgment of the trial court—a limitation which we must every application consider on for an appeal and on the hearing to our every case submitted judgment. Commonwealth, Walker v. S.E. Va.

(1926) added). (emphasis The Assembly “deliberately General engrafted” the harmless error doctrine into the law statutory Carr, the Commonwealth. Irvine v. 163 Va. 208, (1934). S.E. 211

The on judicial harmless error limitation to power applies criminal cases no than v. Clay less civil cases. Common wealth, (2001). 253, 259, 728, 262 Va. 546 it S.E.2d 731 And limitation, has begrudged never been a but rather one “fa by courts, Carlton, 652, Virginia vored” v. Windsor 136 Va. 655, 118 222, (1923), S.E. it obviously grows 223 because so out sense,” “of imperative the demands of common v. Oliver Commonwealth, 533, 541, 145 (1928), 307, 151 Va. S.E. 309 has been embedded in our consequently “deeply jurispru dence,” Commonwealth, 223, 235, Gilland v. 184 35 Va. S.E.2d (1945). 130, reasons, § For these Code 8.01-678 makes required Ferguson “harmless-error review all cases.” v. (1990) Commonwealth, ix, ix, 240 Va. 396 S.E.2d (emphasis original and text in parenthetical). law, the as a matter of essentially argues

Glenn by has partially displaced harmless error statute been however, a follows plea Virginia, conditional statute. guilty interpretations that disfavoring judicial long tradition repealed by implica- one statute has “partially effect hold that Cornett, 256-57, tion” 271 Va. another. Sexton (2006). to requires employ S.E.2d This tradition us legislative repeal a intent where presumption against “a or refer expressly later does not amend the former statute Id.;see Corp., it.” also Kremer Chem. Constr. 456 U.S. (1982) (recognizing 72 L.Ed.2d 262 S.Ct. of an against “implied partial repeal” presumption one). a later earlier statute guilty plea in the text the conditional statute Nothing the harmless error suggests partially repealed it has preserves statute guilty plea merely statute. The conditional (like a grounds a on right appeal a criminal conviction motion) have a that would pretrial denying suppression order guilty plea. otherwise waived an unconditional What been however, interlocutory denying is on is not the order appeal, As the motion—it the conviction itself. suppression is “from the en- plain, appeal judgment” statute makes § defendant. 19.2-254. against tered Code like all way, guilty pleas this conditional “are Understood others, on right to contest that the accused reserves except Costello, issue which he lost.” John L. appeal pretrial (3d 46.2-2, § at 617 Virginia Law & Procedure Criminal ed.2002). But, right is the again, right preserved here with the That must be exercised appeal. right necessarily ordinarily applicable appeals, all expectation principles error, likewise like the doctrine of harmless would venerable where, Virginia, as in enact- apply—particularly legislative on the express acts as an limitation ment the doctrine powers. court’s appellate from can be inferred responds,

The implied repeal, an specifically for it allows plea statute guilty the conditional “prevails” appeal. a if he on guilty plea appellant to withdraw me, § To is at once circular argument See Code 19.2-254. this tell attorney No criminal defense would and counterintuitive. an receiving appel a client that he on after prevailed appeal thus opinion finding alleged late error to be harmless and prevails appeal the conviction valid. A criminal on defendant an From winning acquittal by reducing punishment. view, any can practical point appellate hardly success be merely claimed when a criminal defendant secures from the appellate judges their intellectual to the acquiescence merits of his argument immediately by followed their declaration that, event, in any change it does not the result. Polston Cf. (1998) Commonwealth, 500, 504, 255 Va. 498 S.E.2d (ruling a conditional guilty plea “regardless would be affirmed validity of the actual of the good search warrant” because the faith exception to the rule To exclusionary apply). would prevail appeal reversible, means to demonstrate not irre versible, error. rate, concludes,

At any harmless error cannot be applied this case because there no trial has been and thus way no if knowing the confession could be corroborated other evidence. Not so. There was a trial. Virginia Under law, constitutional receiving after court guilty plea, “the shall Const., I, try added); § case.” Va. art. (emphasis see § also that, Code 19.2-257 (providing following guilty plea, case”). “the court shall hear and determine the And that just happened trial, what in this At case. the Commonwealth proffered evidence Glenn’s confession advised police weapon where find the used in the robbery. Glenn’s counsel advised the trial “accept[ed] court that Glenn proffered testimony.”24 immediately Glenn’s counsel added fact, weapon robbery found the used based upon Glenn’s confession. The trial court asked Glenn’s principles, 24. Under settled a "unilateral avowal of counsel of testimo- ny presented proper proffer, that could be constitutes a if unchal- Commonwealth, 814, 821, lenged." Bloom v. 262 Va. 554 S.E.2d (2001); Commonwealth, Whittaker v. 217 Va. 234 S.E.2d (1977). 602 any

counsel if he wanted to “offer evidence” in addition to the He agreed proffer. any.25 declined offer (and did) does not I not it if he argue accept Glenn would that, if cannot applicable, harmless error doctrine be satisfied. The admission of proper a corroborated confession improper renders harmless the admission of mere cumulative See, Commonwealth, e.g., Luginbyhl evidence. 48 (2006) (en banc) 58, 66, 74, 628 S.E.2d 78-79 (finding defen dant’s confession any “corroborated” rendered “harmless” in admitting “constitutional error” cumulative incriminating Jimenez, (1st evidence); United States 34, 419 41-42 F.3d Cir.2005) (finding “pales that the cumulative evidence in light” confession); voluntary of the defendant’s and corroborated State, (hold Hocker v. 840 So.2d 215 (Ala.Crim.App.2002) ing any admitting error in of a “collateral evidence bad act” was harmless in of light defendant’s corroborated confes sion). sure, To a “confession is be like no other evidence” and “probably the most probative damaging evidence Fulminante, him.” Arizona v. can against be admitted 499 279, 296, (1991). U.S. S.Ct. 113 L.Ed.2d 302 By rejecting only challenge Glenn’s to the admission of his confession, corroborated we rendered harmless error any by (the admitting the trial court in the mere cumulative evidence victim’s cell-phone) backpack. found said, validity guilty plea require proffer 25. That a a of does not of by prosecution. accepting plea guilty, any a evidence "In of is, course, Virginia judge trial free to hear the evidence he deems necessary,” upon but that does not mean "evidence must be heard a Commonwealth, 660, 664, plea guilty.” Kibert v. Va. 222 S.E.2d (1976) omitted). (emphasis Nothing Virginia "requires law upon plea the introduction of evidence to sustain a conviction based a 793; guilty Id. at criminal case.” S.E.2d see Prosise, 2368, 2374, generally Haring v. 462 U.S. 103 S.Ct. So, where, here, (1983). proffer L.Ed.2d 595 in cases unlike there is no evidence, dispositively incriminating may at trial of the it indeed be impractical analysis. error conduct harmless From this sensible observation, however, insensibly reasons that harmless error is inapplicable appeals thus as a matter of law to all from all conditional guilty pleas. many to the citations Finally, only rejoinder I offer a brief justification abandoning for majority relied on them, I most of these error in this case. As read harmless out the absent a suffi- merely point authorities obvious: record, analysis harmless error cannot be cient factual certainly court.26 I competently performed by appellate an here, is that we have a suffi- agree. though, The difference relied upon cient factual record. Other authorities limitations,27 majority precedential have serious while still I others think have been either misunderstood28 understat- 366, 429, Grant, majority People 26. The cites 45 N.Y.2d 408 N.Y.S.2d (1978), 380 N.E.2d 257 as one of the "two most authoritative” cases Ante, 582, rejecting analysis. Va.App. error 48 at 633 harmless agree just important S.E.2d at 218. I Grant did that. But the more why. point explained The court is "difficult that doctrine apply guilty pleas” any because absent “a trial there will be little if record, apart proof evidence in the from the which should have been excluded,” leaving "rarely” appellate competently thus court able case, analysis. conduct a harmless error er, Id. at 264-65. In our howev- competence stipulated, our comes a from corroborated confession properly the defendant—one which we have held the trial court suppress. refused to Hill, 731, 393, (1974), People Cal.Rptr. 12 Cal.3d 528 117 P.2d 1 cases, ante, 582, Va.App. of other the "two most authoritative" 48 at 218, pointed practically 633 S.E.2d at out that the doctrine could not be applied "simply intelligent assessing because there is no means of impact particular suppress of a erroneous refusal to evidence.” Id. at Here, too, (unlike holding appellate presupposes 29. an record ours) which lacks a sufficient factual basis to conduct the harmless inquiry. error Monahan, majority 27. The cites State v. 76 Wis.2d 251 N.W.2d (Wis.1977), proposition 426 for the the “harmless error inapplicable appeal doctrine is guilty plea.” in the of context an from a conditional Ante, Va.App. 48 at 633 S.E.2d at 219. The same preclude, any way, court later said that it did not "read Monahan to approach” appeals 121, guilty the use of a harmless error of conditional pleas. Armstrong, State v. 225 Wis.2d 591 N.W.2d 604 (Wis.1999) curiam). (per Armstrong guilty The defendant in entered his 971.31(10)—which, plea pursuant § Virginia’s to Wis. Stat. like condi- statute, plea permits appeal denying tional an of "order an a motion to suppress despite judgment evidence” "the fact that such was entered Ante, upon plea guilty.” Va.App. Id. at 585 n. 633 S.E.2d Cf. (mistakenly Armstrong assuming at 220 n. 17 appeal "did not involve an guilty plea”). of a conditional 13, ante, 580-581, n.13, 28. Footnote S.E.2d at Lace, (2d Cir.1982), approval cites with United States v. 669 F.2d 46 only suggesting that outcome-determinative issues should be allowed 14, ante, guilty plea procedure. under the conditional Footnote But, important, ed.29 most not one of these citations address- unique procedures es the governing guilty pleas the trials Virginia’s circuit courts or the General Assembly’s codification of the harmless error doctrine as a limitation on appellate court power.

III. sum, In the trial court did not Fourth misapply Amendment it principles suppress when denied Glenn’s motion to evidence found in backpack. the search of the The majority’s invocation of a duty inquire for container searches rests an unwarranted extension of existing prec- search-and-seizure edent. The also in not majority conducting errs harmless error our analysis given prior ruling only rejecting Glenn’s legal challenge support the use of his confession in of the reasons, For finding guilt. these I would affirm Glenn’s convictions. Va.App. rejects approach (specifi- at 633 S.E.2d at 218 n. this cally Bundy, the Fourth Circuit’s restatement of it in United States v. (4th Cir.2004), authority) 392 F.3d 641 which relied on Lace as on the Ante, ground "judicial that it constitutes an exercise of fiat.” event, Va.App. any at 581 n. 633 S.E.2d at 218 n. 14. In this Second, Third, Fourth, Fifth,

principle—followed by the and Seventh Circuits—merely places the onus on the trial court to refuse its consent pleas guilty produce appeals to conditional that would destined to fall apart appeal continuing applicability because of the of the harmless Judge concurring opinion error doctrine. As Newman’s in Lace cau- tioned, guilty plea appellate rights "with a reservation of should not Lace, be a device to circumvent the harmless error rule.” 669 F.2d at case, fear, majority’s opinion just 57 n. 7. The our I has done that. 16, ante, 584-585, 29. Footnote 633 S.E.2d at 219 n. dismisses the Tenth Circuit’s recent decision in United States v. Rivera- Nevarez, (10th Cir.2005), contending 418 F.3d 1104 that it did not "apply disagree. the harmless error doctrine in its traditional sense.” I expressly party appealing” court believe The found "no reason to 52(a)’s pursuant guilty plea "exempt to a conditional was from Rule requirement 'any ... [harmless error] error that does not affect ” rights disregarded.’ be Id. at 1112 n. 13. substantial must

Case Details

Case Name: Glenn v. Commonwealth

Court Name: Court of Appeals of Virginia

Date Published: Aug 15, 2006

Citation: 633 S.E.2d 205

Docket Number: Record 2390-04-2

Court Abbreviation: Va. Ct. App.