PRESENT: Carrico, C.J., Compton, Lacy, Hassell, Koontz, and 

Kinser, JJ., and Stephenson, Senior Justice 

LEMAR JAMIE ANDERSON, S/K/A 

 LAMAR JAMIE ANDERSON 

 OPINION BY 

v. Record No. 980486 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR. 

 November 6, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 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 § 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. 

2
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 

3
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 

 

1

 Anderson also was charged with possession of a controlled 

substance while in possession of a firearm, but this charge was 

nolle prossed. 

4
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 

5
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 § 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 

6
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 

7
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 

 

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. 

8
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 

9
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 

10
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 

 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. 

11
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.

12