COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Coleman and Bray 

Argued at Richmond, Virginia 

VANCE CARL ROBINSON 

 OPINION BY 

v. Record No. 2183-98-2 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 FEBRUARY 8, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Ernest P. Gates, Judge Designate 

Esther J. Windmueller for appellant. 

Marla Graff Decker, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Vance Carl Robinson (appellant) entered a conditional 

guilty plea to possession of cocaine, in violation of Code 

§ 18.2-250. He contends the trial court erred by denying his 

motion to suppress evidence obtained during a warrantless search 

of his residence when the police, escorting a known trespasser, 

entered his apartment to retrieve the trespasser's jacket. For 

the following reasons, we reverse and remand. 

I. FACTUAL BACKGROUND 

 The evidence established that Officer Ronald May (May) 

responded to a report of a trespass in progress at the Shockoe 

Hill Apartments in the City of Richmond. May knew that the 

trespasser, identified as April Brown (Brown), had previously 

been barred from the apartment complex. As he arrived at the 
scene, May saw Brown "[c]oming from [appellant's] apartment" 

wearing a shirt and a pair of shorts that were unbuttoned. 

Brown saw May and ran. After she was apprehended in the front 

of the building, Brown said "she was visiting Vance Robinson." 

 In the parking lot of the apartment complex, May placed 

Brown under arrest. At that time, Brown stated she wanted to 

"get her jacket" from Robinson's apartment. The officer 

permitted Brown to retrieve her jacket and with two other 

officers followed her to appellant's apartment. Officer May 

testified as follows: 

Q. And did there come a time where you 

entered into Mr. Robinson's apartment? 

A. Yes, I did. 

Q. And who opened the door? 

A. Ms. Brown. 

Q. And where were you? 

A. Right behind her? 

Q. And did you step into the apartment? 

A. Yes, I did. 

Q. Did you knock on the door? 

A. I didn't knock. She just went right in. 

 * * * * * * * 

Q. . . . Did you ask anyone's permission to 

enter that apartment? 

A. No, ma'am. 

Q. You knew it wasn't her apartment, right? 

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A. Yes, I did know that. 

Q. And you knew she wasn't even supposed to 

be on that property in any way? 

A. Correct. 

Q. And you walked your whole full self into 

the apartment; is that correct? 

A. Yes, I did. 

Prior to entering the apartment, the police knew that the 

apartment did not belong to Brown and that she was banned from 

the apartment complex by the management. 

 When the police first entered, they saw appellant "standing 

in the kitchen area." May also saw a "crack pipe" in plain view 

on a nearby table. The table was visible immediately upon 

entering the front door of the apartment. As a result of seeing 

the crack pipe, May asked appellant for permission to search the 

apartment. Appellant cooperated with the police and signed a 

consent form. As a result of the search, the officers seized a 

plastic bag containing .038 grams of cocaine. 

 Prior to trial, appellant moved to suppress the evidence, 

arguing that the warrantless entry into his apartment violated 

the Fourth Amendment. In denying the motion, the trial court 

stated: 

I think this officer had a good faith 

exception that he reasonably believed that 

he had a right to go in and follow the lady 

that took him in to get her coat. I think 

he did what anybody would have done under 

the circumstances and that he had apparent 

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authority to go in. So he didn't violate 

[appellant's] rights. I deny your motion to 

suppress. 

Pursuant to Code § 19.2-254, appellant entered a conditional 

plea of guilty and appealed the denial of his suppression 

motion. 

II. 

 In considering the trial court's denial of a motion to 

suppress, the burden is on appellant to show that the court's 

ruling constituted reversible error. See McGee v. Commonwealth, 

25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc). In 

such cases, we view the evidence in the light most favorable to 

the Commonwealth, the party prevailing below. See Greene v. 

Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138, 139 (1994). 

Ultimate questions of reasonable suspicion and probable cause 

involve questions of both law and fact and are reviewed de novo

on appeal. See McGee, 25 Va. App. at 197, 487 S.E.2d at 261. 

We are bound, however, by the trial court's findings of 

historical fact "unless 'plainly wrong' or without evidence to 

support them and we give due weight to the inferences drawn from 

those facts by resident judges and local law enforcement 

officers." Id. at 198, 487 S.E.2d at 261. 

A. Warrantless Entry 

 The Fourth Amendment protects the "right of the people to 

be secure in their persons, houses, papers, and effects, against 

unreasonable searches and seizures . . . ." U.S. Const. amd. 

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IV. By its explicit terms, the Fourth Amendment "protects the 

individual's privacy in a variety of settings. In none is the 

zone of privacy more clearly defined than when bounded by the 

unambiguous physical dimensions of an individual's home . . . ." 

Payton v. New York, 445 U.S. 573, 589 (1980). "[P]hysical entry 

of the home is the chief evil against which the wording of the 

Fourth Amendment is directed," United States v. United States 

District Court for E.D. Michigan, 407 U.S. 297, 313 (1972), and 

"[t]he Fourth Amendment embodies [the] centuries-old principle 

of respect for the privacy of the home[.]" Wilson v. Layne, 119 

S. Ct. 1692, 1697 (1999). Thus, under well-established Fourth 

Amendment jurisprudence, "searches . . . inside a home without a 

warrant are presumptively unreasonable." Payton, 445 U.S. at 

586 (citations omitted). 

 "Although the Fourth Amendment permits law enforcement 

officers to make warrantless arrests in public places upon 

probable cause, warrantless entries into a suspect's home in 

order to arrest a suspect violate the Fourth Amendment unless 

justified by exigent circumstances or consent." Jefferson v. 

Commonwealth, 27 Va. App. 1, 14, 497 S.E.2d 474, 480 (1998) 

(citations omitted). Because warrantless entries are presumed 

invalid, the Commonwealth has a heavy burden to justify the 

warrantless entry. See Jones v. Commonwealth, 29 Va. App. 363, 

369, 512 S.E.2d 165, 167 (1999). "Unless an exception is shown 

by the evidence, . . . the threshold of one's home may not be 

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crossed without a warrant." Id. at 368, 512 S.E.2d at 167 

(citing Payton, 445 U.S. at 590). See Flippo v. West Virginia, 

120 S. Ct. 7, 8 (1999) (per curiam) ("A warrantless search by 

the police is invalid unless it falls within one of the narrow 

and well-delineated exceptions to the warrant requirement 

. . . ."). 

B. Apparent Authority to Consent 

 The Commonwealth concedes that when May made his 

warrantless entry into appellant's apartment, he had no probable 

cause for the entry and did not confront exigent circumstances. 

The Commonwealth also agrees that this case does not involve the 

"hot pursuit" of a fleeing felon. Rather, the Commonwealth 

first contends that the warrantless entry into appellant's 

apartment was valid because the officers' actions were based 

upon the reasonable but mistaken belief that Brown had "apparent 

authority" to provide consent. Thus, the narrow issue presented 

is whether it was reasonable for the police to have believed 

that Brown, a known trespasser already in police custody, had 

apparent authority to enter appellant's apartment and take the 

police with her. 

 We have held that the reasonableness requirement, which 

prohibits the warrantless entry of a person's residence, "does 

not apply . . . to situations in which voluntary consent has 

been obtained, either from the individual whose property is 

searched, or from a third party who possesses common authority 

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over the premises." Jones v. Commonwealth, 16 Va. App. 725, 

727, 432 S.E.2d 517, 519 (1993) (citing Illinois v. Rodriquez, 

497 U.S. 177, 181 (1990)). Even if the third party does not 

have authority to consent to the warrantless entry, "apparent 

authority may be sufficient if the facts surrounding the 

situation would have led a reasonable officer to conclude that 

the person providing consent had the requisite authority." Id.

at 727-28, 432 S.E.2d at 519 (citing Rodriguez, 497 U.S. at 

186-88; Caldwell v. Commonwealth, 15 Va. App. 540, 542, 425 

S.E.2d 534, 535-36 (1993)). 

 In Rodriguez, 497 U.S. 177, the United States Supreme Court 

considered "[w]hether a warrantless entry is valid when based 

upon the consent of a third party whom the police, at the time 

of entry, reasonably believe to possess common authority over 

the premises, but who in fact does not do so." Id. at 179. The 

Court noted that common authority rests "'on mutual use of the 

property by persons generally having joint access or control for 

most purposes . . . .'" Id. at 181 (quoting United States v. 

Matlock, 415 U.S. 164, 171 n.7 (1974)). "The burden of 

establishing that common authority rests upon the State." Id. 

 The Court in Rodriguez concluded that a warrantless entry 

may nonetheless be valid under the Fourth Amendment where the 

officer proceeds based upon a reasonable but mistaken belief 

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that a third party has apparent authority to consent. See id.

at 188-89.1 The Court wrote: 

As with other factual determinations bearing 

upon search and seizure, determinations of 

consent to enter must be judged against an 

objective standard: would the facts 

available to the officer at the moment . . . 

warrant a man of reasonable caution in the 

belief that the consenting party had 

authority over the premises? If not, then 

warrantless entry without further inquiry is 

unlawful unless authority actually exists. 

But if so, the search is valid. 

Id. at 188-89 (internal quotations and citations omitted). 

III. 

 Applying the foregoing principles to the instant case, we 

hold that May entered appellant's apartment in violation of 

appellant's Fourth Amendment rights and that the trial court 

erred in refusing to suppress the evidence found as a result of 

the warrantless entry and subsequent search. Brown, a known 

trespasser, lacked actual authority to consent to the 

warrantless entry and the officer's belief that she had apparent 

authority to consent was objectively unreasonable. A person of 

"reasonable caution" could not logically conclude that an 

 1

 The Fourth Circuit has held that the good faith exception 

enunciated in Rodriguez does not "extend[ ] even beyond the 

generally recognized exceptions to the warrant requirement: i.e., 

beyond consent, or one of the various forms of exigency that have 

been recognized depending upon the purpose of the search." United 

States v. Moss, 963 F.2d 673, 677 (4th Cir. 1992). Thus, "the 

mistaken determinations of police officers that may be excused as 

good faith, reasonable ones, must yet be related to elements of

one of these exceptions." Id. (emphasis added). 

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individual arrested for trespass of a building or residence 

could maintain, at the same time, authority over the premises 

and, thus, authority to consent to an entry of those premises. 

As the Supreme Court cautioned in Rodriguez, "what we hold today 

does not suggest that law enforcement officers may always accept 

a person's invitation to enter premises." Id. at 188. "Even 

when the invitation is accompanied by an explicit assertion that 

the person lives there, the surrounding circumstances could 

conceivably be such that a reasonable person would doubt its 

truth and not act upon it without further inquiry." Id.

 Nevertheless, the Commonwealth contends that the officer's 

actions were reasonable under the circumstances because "there 

is no evidence that [appellant] questioned Brown's entry" and 

"no one protested when the police went inside the apartment with 

Brown." However, where the validity of a search rests on 

consent, the Commonwealth has the burden of proving that the 

necessary consent was obtained. See Johnson v. Commonwealth, 26 

Va. App. 674, 687, 496 S.E.2d 143, 149-50 (1998) (citing Florida 

v. Royer, 460 U.S. 491, 497 (1983) (plurality)). The 

Commonwealth's "burden . . . is not satisfied by showing a mere 

submission to a claim of lawful authority." Id. (citing Royer, 

460 U.S. at 497); see also Bumper v. North Carolina, 391 U.S. 

543, 548-49 (1968). 

 Here, May was responding to a report of a trespass in 

progress at appellant's apartment complex when he saw Brown 

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leaving appellant's apartment. He knew the apartment did not 

belong to Brown and that she was banned from the apartment 

building by the management. Brown was already under arrest at 

the time the officers allowed her to enter the apartment and 

followed her inside. The officers confronted no emergency that 

required Brown to re-enter without permission of the owner, a 

place Brown was legally barred from entering. The officers' 

reliance on Brown's apparent authority to enter was not 

objectively reasonable, and appellant's submission to the 

officer's claim of lawful authority did not satisfy the 

Commonwealth's burden. 

The trial court erred in denying the motion to suppress the 

evidence. Accordingly, we reverse and remand for further 

proceedings if the Commonwealth be so advised.2 

 Reversed and remanded.

 2

 The Commonwealth also contends the events that immediately 

followed the officers' entry into appellant's apartment "purged 

any taint" such that the evidence was nevertheless admissible. 

This argument is without merit. The circumstances surrounding the 

warrantless entry and the subsequent request for consent to search 

demonstrate that the evidence obtained was the product of the 

initial illegality, rather than "by means sufficiently 

distinguishable to be purged of the primary taint." Wood v. 

Commonwealth, 27 Va. App. 21, 31, 497 S.E.2d 484, 488 (1998) 

(citations omitted). "The officers did not seek [appellant's] 

consent until after they had made their illegal foray into the 

[apartment] and found incriminating evidence." Id. Thus, 

appellant's consent to search was not an independent source of the 

evidence, but rather was an exploitation of the initial 

warrantless entry. 

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