                  COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bumgardner and Frank
Argued at Alexandria, Virginia


EDWARD LINDSAY YATES
                                          MEMORANDUM OPINION * BY
v.   Record No. 1289-99-4              JUDGE JERE M. H. WILLIS, JR.
                                               APRIL 4, 2000
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
                    James H. Chamblin, Judge

          Nicholas R. VanBuskirk (Jud A. Fischel, P.C.,
          on brief), for appellant.

          Stephen R. McCullough, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     On appeal from his conviction of possession of a firearm by

a previously convicted felon, in violation of Code § 18.2-308.2,

Edward Lindsay Yates contends that the trial court erred in

denying his motion to suppress the firearms found upon a

warrantless search of his residence.   Finding that the search

was based on a valid and continuing consent, we affirm the

judgment of the trial court.

     The facts are not in dispute.

     On August 11, 1998, Warrenton Police Officers Steve Alleman

and Joseph Spina arrested Yates pursuant to an outstanding


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
arrest warrant.    Yates consented for them to search his

residence and signed a consent to search form, which contained

no time limitations.   The officers accompanied Yates to his home

and commenced the search.   The officers asked Yates whether he

possessed a gun.   Yates produced a pellet gun, which the

officers seized.   Officer Spina then took Yates to the

magistrate's office to process the initial arrest.

     After Yates and Officer Spina left, Officer Alleman left

the residence, but remained in "the general area . . . standing

on the street in front of the house."   Twenty minutes later,

Officer Alleman received word from the magistrate's office that

additional weapons might be in the house.   Based "[o]n the

consent [Yates] had given prior," he reentered the residence and

renewed the search, being joined soon thereafter by Officer

Spina.   During the second search, Officer Spina found a shotgun

and two pistols.

     The trial court denied Yates' motion to suppress the

shotgun and pistols, holding that Yates' consent authorized the

second search.    It convicted him of possession of a firearm by a

previously convicted felon, in violation of Code § 18.2-308.2,

and sentenced him to one year and eleven months imprisonment.

     Yates contends that the trial court erred in denying his

motion to suppress.    He argues that the second search exceeded

the scope of his original consent and was therefore

unreasonable.

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     No search warrant authorized either the initial or second

search.   Under well-settled principles, a warrantless search is

"'"per se unreasonable under the Fourth Amendment -- subject

only to a few specifically established and well-delineated

exceptions."'"   Cantrell v. Commonwealth, 7 Va. App. 269, 282,

373 S.E.2d 328, 334 (1988) (citations omitted).     "However,

searches made by the police pursuant to a valid consent do not

implicate the Fourth Amendment."     McNair v. Commonwealth, 31 Va.

App. 76, 82, 521 S.E.2d 303, 306 (1999) (en banc).

     Yates' consent to search was freely and voluntarily given.

See Commonwealth v. Rice, 28 Va. App. 374, 378, 504 S.E.2d 877,

879 (1998).   The issue, therefore, is whether the officers

exceeded the scope of that consent when they entered his

residence the second time.   Yates argues that his consent

authorized only the first search and did not extend to authorize

the second.   See Grinton v. Commonwealth, 14 Va. App. 846,

850-51, 419 S.E.2d 860, 862 (1992).      He relies on Thompson v.

Louisiana, 469 U.S. 17 (1984).     In Thompson, the police entered

a residence after being called to render aid to a crime victim

and to secure the premises from the suspect.     Thirty-five

minutes after the victim was hospitalized, the police reentered

the premises and conducted a two hour "exploratory search."

Finding that the purpose of the second search was unrelated to

the purpose of the initial entry, the Supreme Court held the

warrantless second search to be unreasonable.

                                 - 3 -
     This case, however, rises out of a single incident.      Each

entry by the police into the residence was based upon Yates'

consent.   "The touchstone of the Fourth Amendment is

reasonableness."     Florida v. Jimeno, 500 U.S. 248, 250 (1991).

Whether such a search is reasonable requires an objective

inquiry into the totality of the circumstances and as to whether

those circumstances would lead a reasonable person to believe

and act as the officers did.     See id. at 251; Johnson v.

Commonwealth, 26 Va. App. 674, 688, 496 S.E.2d 143, 150 (1998).

We hold that Officer Alleman acted reasonably in reentering the

house based upon the unlimited consent given by Yates just a

short time before.    The temporal nexus between the two searches

and their mutual bases rendered reasonable the officers' belief

that Yates' consent remained valid.

     Because the record supports the trial court's finding that

the search was reasonable, we affirm the judgment of the trial

court.

     The judgment of the trial court is affirmed.

                                                          Affirmed.




                                 - 4 -
Frank, J., dissenting.

                 "[T]he Fourth Amendment . . . protects
            people from unreasonable government
            intrusions." United States v. Chadwick, 433
            U.S. 1, 7 (1977). "A consensual search is
            reasonable if the search is within the scope
            of the consent given." Grinton v.
            Commonwealth, 14 Va. App. 846, 850, 419
            S.E.2d 860, 862 (1992). The United States
            Supreme Court has articulated the standard
            for measuring the scope of an individual's
            consent under the Fourth Amendment to be
            "'objective' reasonableness--what would the
            typical reasonable person have understood by
            the exchange between the officer and the
            suspect?" Florida v. Jimeno, 500 U.S. 248,
            251 (1991). Furthermore, the Court stated
            that, "[t]he scope of a search is generally
            defined by its expressed object." Id.

Bolda v. Commonwealth, 15 Va. App. 315, 316-17, 423 S.E.2d 204,

205-06 (1992).

       While I agree with the majority that appellant's consent

was voluntary, I disagree with the conclusion that the consent

was unlimited in scope.    The officers asked appellant whether he

possessed a gun.    When appellant produced the pellet gun,

Officer Alleman testified that the officers said, "That must be

it."   Appellant then was placed under arrest and was taken to

the magistrate's office.

       Under the "objective reasonableness" test, Officer Alleman

did not act reasonably in reentering the house.   After appellant

produced the pellet gun, the officers arrested appellant and

removed him from the premises, thereby accomplishing their

stated objective.   The search to which appellant consented was


                                - 5 -
concluded.   The second search was not a continuation or

extension of the first search.    In fact, the basis for the

second search was information acquired after the first search

was completed and after appellant had been removed from the

premises.

     Appellant consented to the search while he was physically

present in his home.   He was removed from his home prior to the

second search.   It is not objectively reasonable for the police

to assume that appellant would be agreeable to another search

when he was not present.    Clearly, appellant saw no need to

withdraw or limit his consent when he and Officer Spina left the

premises.    Objectively, appellant could assume that the search

was concluded.   The fact that another officer remained in the

vicinity is of no moment.   There is nothing in the record to

suggest that appellant knew that the officer remained or that

the officer intended to further search the premises.

     Therefore, I cannot agree that the record supports the

trial court's finding that the second search of appellant's home

was reasonable as required by the Fourth Amendment.




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