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ANDERSON v. COMMONWEALTH OF VA (59803)


ANDERSON

v.

COMMONWEALTH OF VA


November 6, 1998
Record No. 980486

LEMAR JAMIE ANDERSON, S/K/A LAMAR JAMIE
ANDERSON

v.

COMMONWEALTH OF VIRGINIA

PRESENT: Carrico, C.J., Compton, Lacy, Hassell,
Koontz, and Kinser, JJ., and Stephenson, Senior Justice

FROM THE COURT OF APPEALS OF VIRGINIA
OPINION BY SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.


The sole issue in this appeal is whether the
Court of Appeals correctly decided that the trial court did not
err in denying the defendant’s motion to suppress evidence seized
from his person and property.

I

On January 9, 1995, Lemar Jamie Anderson
entered into a written plea agreement whereby he agreed to plead
guilty to possession of a firearm upon school property in
violation of Code Sect.  18.2-308.1. The agreement provided
that Anderson would be sentenced to two years’ imprisonment with
execution of the sentence suspended upon certain terms and
conditions, one of those being that he shall waive his Fourth
Amendment right against unreasonable searches and seizures for a
period of one year from the date of sentencing, to-wit: he shall
submit his person, place of residence, and property to search or
seizure at any time of the day or night by any law enforcement
officer with or without a warrant.

The plea agreement was signed by Anderson, his
attorney, and the attorney for the Commonwealth. Above Anderson’s
signature, the following was set forth in large type:

BY HIS SIGNATURE BELOW, [ANDERSON] ACKNOWLEDGES
THAT, IF THIS AGREEMENT IS ACCEPTED BY THE COURT, HE UNDERSTANDS
HE IS WAIVING HIS FOURTH AMENDMENT RIGHT AGAINST UNREASONABLE
SEARCHES AND SEIZURES DURING THE PERIOD SPECIFIED ABOVE.

Thereafter, the plea agreement was presented to
the trial court, the Circuit Court of the City of Virginia Beach.
The court carefully questioned Anderson regarding his guilty plea
and the terms and conditions of his plea agreement. Anderson
informed the court that he fully understood those terms and
conditions and the consequences of his guilty plea. The court
also ascertained that Anderson’s counsel had reviewed with
Anderson the terms and conditions of the agreement, particularly
the provision that Anderson "waives his right to be free
from unreasonable search and seizures for a period of one
year."

At the sentencing hearing, the Commonwealth
introduced certified copies of Anderson’s two prior convictions
for possession of marijuana with intent to distribute, and the
attorney for the Commonwealth stated the following:

[W]e’ve given [Anderson] every incentive in the
world to remain of good behavior. He will know as he’s out and
about that he can be stopped at any time and be checked to make
sure he is not carrying drugs or weapons or anything else.

The trial court found that Anderson’s guilty
plea was entered freely and voluntarily. The court also approved
the plea agreement and incorporated its terms and conditions into
its January 9, 1995 sentencing order.

On June 21, 1995, two off-duty Virginia Beach
police officers working as private security guards saw Anderson
and two companions alight from a van and "being very
loud" in public. The officers approached the three and
ordered them to stop, at which time they began to walk faster.

When the officers caught up to them, Anderson
dropped "a white tissue or white bag" on the ground and
placed his backpack by an apartment door. One of the companions
took the backpack inside the apartment, but an officer demanded
that the backpack be brought outside. The individual then gave
the backpack to the officer, and the officer found a .357 magnum
handgun inside the backpack. The officer then placed Anderson
under arrest for carrying a concealed weapon.

The officer retrieved the "small white
baggie" that Anderson had dropped to the ground. The baggie
contained a rock-like substance that proved to be 0.07 grams of
cocaine. The officer also seized another baggie that Anderson had
dropped to the ground as he was placed in the patrol car. This
baggie contained 0.18 ounces of marijuana. The Commonwealth
concedes that, absent a valid waiver, the circumstances did not
support a warrantless search of Anderson’s person and property.

Anderson was charged with possession of
cocaine, possession of a firearm after having been convicted of a
felony, and possession of marijuana.
[1] Prior
to trial, he moved to suppress the seized evidence, contending
that his waiver of his Fourth Amendment rights in the January 5,
1995 plea agreement was invalid. The trial court denied the
motion to suppress, finding that the waiver was valid.

Anderson then entered a conditional plea of
guilty, reserving his right to appeal the denial of his motion to
suppress. A panel of the Court of Appeals affirmed the trial
court’s denial of the motion to suppress, finding that Anderson’s
waiver of his Fourth Amendment rights in the January 5, 1995 plea
agreement was valid. Anderson v. Commonwealth, 25
Va. App. 565, 490 S.E.2d 274 (1997). Upon a rehearing en banc,
the full Court of Appeals also affirmed the trial court’s
decision for the reasons set forth in the panel opinion. Anderson
v. Commonwealth, 26 Va. App. 535, 495 S.E.2d 547 (1998).
We awarded Anderson an appeal.

II

Anderson advances a number of arguments to
support his contention that the waiver of his Fourth Amendment
rights was invalid. He first asserts that the waiver was the
result of coercion, claiming that the waiver was not
"negotiated at arms length by equal parties," but was
"dictated by the Commonwealth." According to Anderson,
"[h]e sought only to avoid time in jail."

To justify a search on the basis of a waiver,
the Fourth Amendment requires the Commonwealth to show that the
waiver was given voluntarily and did not result from coercion. See
Schneckloth v. Bustamonte, 412 U.S. 218, 248-49
(1973). Whether a waiver is given voluntarily is a factual issue
to be determined from all the circumstances. Id.

In the present case, Anderson, while
represented by counsel, executed the plea agreement containing
the waiver. He acknowledged to the trial court that the
agreement, including the waiver, was made knowingly and
voluntarily, and he requested that the trial court approve it.
The trial court was careful to make certain that Anderson
understood the consequences of the waiver and that it was his
voluntary act.

Therefore, we reject Anderson’s contention and
hold that the waiver was not the result of coercion. Indeed, if
Anderson were correct, all plea agreements would be invalid on
the basis of coercion because all such agreements involve to some
degree a desire by a defendant to limit or diminish punishment.
As the Supreme Court has held, however, a defendant can
voluntarily agree to a bargain that provides for one of two
undesirable options. Bordenkircher v. Hayes, 434
U.S. 357, 365 (1978). Furthermore, we agree with the Court of
Appeals’ observation that "[a]n offender’s selection between
two sanctions resulting from his own wrongdoing constitutes
choice, not coercion." Anderson, 25 Va. App. at 573,
490 S.E.2d at 278.

Anderson also asserts that the trial court
acted unreasonably in conditioning the suspended sentence upon a
waiver of his Fourth Amendment rights. Code Sect.  19.2-303
empowers a trial court to place conditions on a suspended
sentence. The sole statutory limitation placed upon a trial
court’s discretion in its determination of such conditions is one
of reasonableness. Dyke v. Commonwealth, 193 Va.
478, 484, 69 S.E.2d 483, 486 (1952) (decided under predecessor
statute).

In the present case, it is difficult to
understand how Anderson can now contend that this condition of
his suspended sentence was unreasonable when he knowingly and
voluntarily agreed to it. Moreover, Anderson had a history of
drug and firearm offenses, and the waiver provided the
Commonwealth with a useful means of verifying Anderson’s
compliance with the condition that he would be of good behavior.
Both Anderson and the Commonwealth benefited from the plea
agreement in that Anderson received his freedom and the
Commonwealth gained some control over his behavior. We conclude,
therefore, that, based upon the nature of the offense, Anderson’s
background, and the surrounding circumstances, the Court of
Appeals correctly decided that the trial court acted reasonably
and did not abuse its discretion in conditioning Anderson’s
suspended sentence upon the waiver.

Anderson also claims that the waiver of his
Fourth Amendment rights was invalid because it was overly broad.
Again, we cannot ignore the fact that the waiver was the product
of Anderson’s voluntary act. As previously noted, its purpose was
to ensure Anderson’s good conduct. To achieve that end, the scope
of the waiver needed to be broad, requiring Anderson to submit
his person and property to search or seizure at any time by any
law enforcement officer with or without a warrant. The scope of
the waiver was broad, but, in the circumstance of the present
case, we cannot say the waiver was invalid for its being overly
broad. We also cannot say the one-year duration of the waiver,
agreed upon by Anderson, invalidated it.

Anderson next contends that, by his plea
agreement, he did not presently waive his Fourth Amendment
rights; rather, he merely agreed that he would give such a waiver
in the future should a search of his person or property be
sought. The language of the waiver, Anderson argues, denotes a
requirement of future action by him. We do not agree.

We think the language of the waiver is clear
and unambiguous, and we agree with the Court of Appeals that the
"words ‘shall waive’ . . . state an
imperative" and do not refer to a future act. Moreover,
Anderson overlooks the provision in the plea agreement
immediately above his signature whereby he acknowledged that he
"IS WAIVING" his Fourth Amendment rights.
[2]

Finally, we find meritless any contention that
the officers’ lack of prior knowledge of Anderson’s waiver
rendered the search invalid. The waiver expressly states that
Anderson agreed to submit his person or property to "any
law enforcement officer." (Emphasis added.) Indeed, Anderson
concedes on brief that the waiver "did not have to be
related to the supervision of [his] probation."

III

In sum, we hold that the Court of Appeals
correctly decided that the waiver agreed upon by Anderson and
adopted by the trial court was given knowingly and voluntarily,
was not the result of coercion, was not overly broad, and was
reasonable in the circumstances of this case. Thus, the waiver
was valid.

Accordingly, the judgment of the Court of
Appeals will be affirmed.

Affirmed.

 

JUSTICE KINSER, with whom JUSICE LACY and
JUSTICE HASSELL join, concurring.

I concur in the majority’s decision to affirm
the judgment of the Court of Appeals only because I conclude that
Lemar Jamie Anderson voluntarily, with advice of counsel, entered
into the plea agreement in which he waived his Fourth Amendment
right against unreasonable searches and seizures and agreed to
submit to such searches at any time, by any law enforcement
officer. Anderson obviously accepted this broad waiver because he
was bargaining with the Commonwealth in order to avoid
incarceration.

However, I draw a distinction between this case
and one in which a trial court imposes the same broad waiver of
Fourth Amendment rights as a condition of probation when the
defendant has not consented to the waiver in a plea agreement. In
the latter situation, I believe that such a waiver might be
constitutionally impermissible if it allowed law enforcement
officers to conduct warrantless searches of probationers for
investigative purposes, as was done in this case, rather than
limiting such searches to those that are reasonably related to
furthering the goals of probation. See United States v.
Ooley
, 116 F.3d 370, 372 (9th Cir. 1997), cert.
denied
, ___ U.S. ___, 118 S.Ct. 2391 (1998) (holding that
legality of warrantless search of probationer depends upon
showing that search was true probation search and not
investigative search); State of New Hampshire v. Zeta Chi
Fraternity
, 696 A.2d 530, 540 (N.H.), cert. denied,
___ U.S. ___, 118 S.Ct. 558 (1997)("[W]hen a condition of
probation authorizes random warrantless searches and the
condition is reasonably related to the supervision and
rehabilitation of the probationer, a warrantless probation search
is constitutionally permissible."). Otherwise, law
enforcement officers could use the condition of probation waiving
Fourth Amendment rights as a subterfuge to turn every
unreasonable search of a probationer into a lawful one.

Because of these concerns, I write separately
and respectfully concur.

 

JUSTICE KOONTZ, dissenting.

I respectfully dissent.

While I agree with the majority’s view that
Anderson’s waiver of his Fourth Amendment rights was made
knowingly and voluntarily, and that the trial court acted within
its discretion in making this a condition of Anderson’s suspended
sentence, I do not agree that "the scope of the waiver
needed to be broad, requiring Anderson to submit his person and
property to search or seizure at any time by any law
enforcement officer
." Rather, I would adopt the view of
the dissent in the Court of Appeals that the scope of the waiver
was limited to its intended purpose of "allow[ing] law
enforcement officers, including the defendant’s probation
officer, who knew of the defendant’s probationary status, to be
able to monitor the defendant’s conduct and behavior by searching
him, his home, his vehicle, or personal belongings without notice
and without probable cause." Anderson v. Commonwealth,
25 Va. App. 565, 578, 490 S.E.2d 274, 280 (1997)(Coleman, J.,
concurring in part, and dissenting in part); see also Anderson
v. Commonwealth
, 26 Va. App. 535, 495 S.E.2d 547 (1998)(en
banc) (four judges dissenting for the same reasons set forth in
the panel dissent).
[3]

Waivers such as the one obtained in this case
are not intended to provide the state with an absolute authority
to harass the probationer with impunity. United States v.
Johnson
, 722 F.2d 525, 527 (9th Cir. 1983).
Rather, they "allow officials to monitor [a probationer's] activities . . . tied to the rehabilitative purpose of
his probationary sentence." Allen v. State, 369
S.E.2d 909, 910 (Ga. 1988). If such were not the case, the
generalized inclusion of such language in all plea agreements by
the Commonwealth would unquestionably lead to abuse of the
waivers by law enforcement officials.

Here, the Commonwealth concedes that the
officers did not conduct their search of Anderson with knowledge
of the waiver or to assure that Anderson was adhering to the
conditions of his suspended sentence. Accordingly, I would hold
that the search exceeded the scope of the waiver and was not
otherwise founded on voluntary consent or reasonable grounds
sufficient to overcome Anderson’s Fourth Amendment privilege. For
these reasons, I would reverse the judgment of the Court of
Appeals.

 

 

 

FOOTNOTES:

[1] Anderson also was charged with possession of a
controlled substance while in possession of a firearm, but this
charge was nolle prossed.

[2] Anderson argues that, because he
merely agreed to a future waiver, his refusal to submit to a
search on June 21, 1995, could amount to no more than a violation
of the conditions of his suspended sentence and could not
validate an unreasonable warrantless search. In holding that
Anderson gave a present waiver, we reject this argument.
Moreover, the record does not indicate that Anderson ever refused
to submit to a search on June 21, 1995.

[3]Although on brief Anderson uses the language that the
waiver "did not have to be related to the supervision of
[his] probation" quoted by the majority as a concession by
Anderson, a fair reading of that language in context of
Anderson’s argument does not support the conclusion that it was a
concession of anything. Rather, it was an inartful way of
addressing the broad scope of the waiver that unquestioningly was
challenged by Anderson.

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