COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judge Elder and Senior Judge Willis Argued at Chesapeake , Virginia

ANTHONY JOSEPH CROSEN MEMORANDUM OPINION * BY v. Record No. 0948

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- 1 CHIEF JUDGE WALTER S. FELTON, JR. OCTOBER 11, 2011 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Louis R. Lerner , Judge
John E. Robins , Jr. (Office of the Public Defender , on brief) , for appellant. Craig W. Stallard, Assistant Attorney General (Kenneth T. Cuccinelli, II , Attorney General, on brief) , for appellee.

Anthony Joseph Crosen (“appellant”) was convicted by the Circuit Court of the City of Hampton (“trial court”) for cultivating marijuana, in violation of Code § 18.2

- 248.1, and conspiracy to distribute marijuana, also in violation of Code § 18.2

- 248.1. The trial court denied appellant’s motion to suppress evidence of marijuana found during a search of appellant’s residence and his subsequent incriminating statements. Appellant entered conditional guilty plea s
. On appeal, appellant asserts that the trial court erred in denying his motion to suppress
. For the following reasons, we affirm the judgment of the trial court

. A. When reviewing the denial of a suppression motion, we review the evidence “in the light

mos t favorable to the Commonwealth, giving it the benefit of any reasonable inferences.” Kyer
v. Commonwealth , 4 5 Va. App. 473 , 477 , 612 S.E.2d 213 , 215 (20 0 5 ) ( en banc ) (citation

* Pursuant to Code § 17.1

- 413, this opinion is not designated for publication.- 2

- omitted)

. As the parties are fully conversant with the record in this case, w e recite only those facts and incidents of the proceedings as are necessary to the disposition of this appeal.
Around 4:45 p.m. on May 11, 2009, Hampton p olice received a specific complaint “ that somebody was growing marijuana, who was potentially getting ready to harvest it that day” at a specific residence in the City of Hampton

. Hampton Police Detective Barrett and Sergeant Toupin , dressed in civilian clothing, went to that residence in an effort to “knock and talk” with
the residents. The officers wal ked up the driveway and across a walkway to the front door of the
residence. There were no barriers blocking the driveway or walkway , and no signs were posted restricting the officers ’ use or access to the front porch.
A fter knocking on the front door and receiving no response, the officers requested the
assistance of a K

- 9 officer and his drug dog. Following the same route to the front door used by the previous officers, the dog gave a positive alert to the odor of narcotics at that door

. As the officer s were preparing to leave to obtain a search warrant , appellant walked from
across the str eet. He encountered the officers in the driveway. The officers verif ied appellant’s
identification and confirmed that he resided at the property . The officers info rmed appellant that they had received an anonymous tip someone was growing marijuana and was getting ready to
harvest it at that address

. The officers requested and were given consent by appellant to search
his residence. T he officers accessed the second floor attic and found marijuana plants growing
there . Appellant was arrested, and later admitted ownership of the marijuana plants . He told the
officers that he and another individual had agreed to distribute the marijuana after it was
harvested.
B.
On appeal, a ppellant contends that the trial court erred in denying his motion to suppress
the marijuana plants , as well as the subsequent incriminating statements he made to the police.- 3

- A ppe llant also contends the officer s did not have permission to ente r the curtilage of his
residence . We disagree. The officers had implied consent to use the driveway and walkway leading to appellant’s
house. There were no barriers blocking the driveway or walkway , and no signs were posted restricting the officers’ use o r access to the front porch. A ppellant testified at the suppression hearing that mail carriers could use the driveway for deliveries. See Robinson v. Commonwealth , 273 Va. 26, 34, 639 S.E.2d 217 , 222 (2007) ( “ [A] resident of a dwelling impliedly consents to a police officer entering the cu rtilage to contact the dwelling’ s residents

. . . . Implied consent can be negated by obvious indicia of restricted access

. . . .” ). “As a general rule, ‘a search authorized by consent is wholly valid.’” Kyer , 45 Va. App.

at 483, 612 S.E.2d at 218 (quoting Schneckloth v. Bustamonte , 412 U.S. 218, 222 (1973)). Consent loses its validity only if it is involuntary, Ohio v. Robinette , 519 U.S. 33, 40 (1996), or the product of a manipulative “exploitation” by the police of an earlier unconstitutional search or seizure, Warlick v. Commonwealth , 215 Va. 263, 266, 208 S.E.2d 746, 748 (1974). Appellant himself testified at the suppression hearing that he “wasn’t threatened at all.”
He also testified the officers explained the reason for their visit , prior to giving his permission to
search

. Nothing in the record on appeal demonstrates that the officers misled appellant , attempted to intimidate him , or coerced him to gain his consent to search the residence

. After hearing app ellant’s testimony at the suppression hearing, t he trial court found that “by his own admission” appellant was not intimidated and gave valid consent for the officers to search his
residence. 1

1 While the officers were talking with appellant, his wife arrived in her car and parked in the driveway. Detective Bar rett advised her why they were present. She thereafter gave her consent for the officers to search the residence. Cf. Glenn v. Commonwealth , 275 Va. 123, 136, 654 S.E.2d 910, 917 (2008) (“ [C] onsent [to the search of a marital residence] was ineffective i f the other co
- occupant was indeed present and objected.

. . . [I]f the search is otherwise objectively- 4

- Accordingly, we hold that the trial court did not err in denyin g appellant’s motion to
suppress. Affirmed.

reasonable, a potential objector who raises no objection to the search when he has the opportunity to do so ‘loses out

. ’” (quoting Georgia v. Randolph , 547 U.S. 103, 121 (2006) ) ). The record on appeal does not reflect that wife lacked authority to consent to the search of the residence. Nor does the record reflect that wife’s consent was tainted or that appellant objected to her consent.