                                         COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Decker, Judges Beales and Russell
            Argued by teleconference
PUBLISHED




            COSHAUN TYRELL BRYANT
                                                                                OPINION BY
            v.     Record No. 0221-19-1                                  JUDGE RANDOLPH A. BEALES
                                                                                JUNE 16, 2020
            COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND
                                       COUNTY OF JAMES CITY
                                        Michael E. McGinty, Judge

                           Ronald L. Smith (Smith Law Firm, P.L.C., on brief), for appellant.

                           Craig W. Stallard, Assistant Attorney General (Mark R. Herring,
                           Attorney General, on brief), for appellee.


                   At the conclusion of a bench trial, appellant Coshaun Tyrell Bryant was found guilty of

            possession of ammunition by a convicted felon and possession of more than five pounds of

            marijuana with intent to distribute. Some of the evidence that was presented against him at trial

            was found as a result of a search warrant. The affidavit used to obtain the search warrant relied

            upon evidence found during a search that police conducted based upon consent by Bryant’s

            girlfriend, Jasmine Perry, who was the person who leased the apartment that the police were

            searching. On appeal, Bryant argues that the trial court erred in denying a portion of his pretrial

            motion to suppress the evidence.

                                                     I. BACKGROUND

                   In accordance with established principles of appellate review, we view the “evidence in the

            light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial

            court.” Riner v. Commonwealth, 268 Va. 296, 330 (2004). “We also accord the Commonwealth
the benefit of all inferences fairly deducible from the evidence.” Id. at 303. On appellate review of

the denial of a motion to suppress, we consider not only the evidence presented at the pretrial

hearing but also the evidence presented at trial. Commonwealth v. White, 293 Va. 411, 414

(2017).

          On the evening of September 8, 2017, Officers John Heilman and Alfred Orozco of the

Williamsburg Police Department arrived at Perry’s apartment in response to a report of possible

domestic violence and of someone barricaded in a room. The officers encountered Bryant

outside of the apartment with his young daughter. Officer Heilman spoke with Bryant, while

Officer Orozco went inside the apartment to conduct a protective sweep of the apartment and to

speak with Perry. Perry informed the officers that her boyfriend had arrived at 2:00 a.m. and that

“the argument that they got into that evening was bad enough where she just wanted to leave” to

go to New York. The officers allowed Perry to take some of her packed belongings to her car.

          Meanwhile, Officer Heilman asked Bryant for his identification. Bryant said he had a

Virginia identification card but did not actually have it on him. Bryant identified himself to

Officer Heilman as “Dion Carter” and provided a birthdate of January 1, 1986. Bryant said he

did not know his social security number. Officer Heilman searched his computer for the

identifying information Bryant provided but did not find a match. Officer Heilman asked Bryant

to search through his belongings to find his ID. Bryant searched through packed luggage in the

foyer of the apartment, but did not locate his ID. Officer Heilman then suggested that Bryant

search the car for his ID; Bryant searched the car but stated that he still could not locate his ID.

          Perry informed Officer Orozco that her boyfriend’s date of birth was actually May 12.

Based on that information and the fact that all of the identifying information he had provided to

Officer Heilman appeared to be false because it did not match any individual’s information in the




                                                 -2-
Virginia computer database,1 the officers arrested Bryant for providing false identifying information

to the police. The police conducted a search incident to the arrest and discovered on Bryant’s

person a flip phone, a smart phone, and $1,015 in cash. The police then placed Bryant in their

police vehicle.

       After Bryant’s arrest, Officer Heilman then went to Perry, who was sitting in her car, and

asked her who was renting the apartment. Perry informed him that she alone was renting it.

Officer Heilman informed Perry that he was going to try to obtain a search warrant to search the

apartment. However, Perry consented for the officers to go ahead and search the apartment.

       Officer Heilman testified that he, Officer Orozco, and Perry then went up to the

apartment. Heilman also testified that he first searched the kitchen area, then went to a “pile of

bags that were in the foyer,” which Perry stated belonged to her boyfriend. Heilman testified

that in a black Nike duffle bag that was located in the foyer, he discovered a blue grocery bag

that contained $14,020 in cash as well as “a yellow sticky pad that had various letters and

numbers.” Heilman stated that he believed the sticky pad “to be a drug ledger with the amount

of money that was found.” He also testified that inside the same black Nike bag, he found Beats

headphones and a manicure set, both of which Perry identified as hers. He stated that he also

searched a red varsity jacket that was located in the foyer, which contained “a pill bottle that was

not labeled that had 66 pills inside of it, numerous different schedule types.”

       Officer Heilman also testified that Perry “made mention that she had other items inside of

the apartment and pointed to one part of the room [that] had some items in them and then she

pointed towards the hallway and -- but her speech trailed off and she didn’t finish her sentence.”

The officer further testified that Perry told him that she still had shoes back in the master



       1
         Based on Bryant’s statements that he had spent time in New Jersey and New York,
Officer Heilman also searched New York and New Jersey databases and found no match.
                                              -3-
bedroom suite area of the apartment. Heilman stated that after he completed his search of the

foyer, he went into one bedroom on the left side of the hallway, which he found to be completely

empty. He then proceeded to the last door on the left in the hallway, which was the master

bedroom that had a master bathroom and a walk-in closet off of it. He testified that he found a

big travel suitcase on the floor of the bathroom and a safe placed upright on top of the toilet seat.

Heilman stated that there were no identifying marks or name tags on the suitcase and that there

was a gold Michael Jordan sticker on the safe. He also testified that he opened the suitcase and

found fourteen clear vacuum-sealed bags containing “brown leafy green substances inside of

them, later tested and found to be marijuana.” Each vacuum-sealed bag weighed “roughly over

one pound.” Heilman told the trial court that he then went out to the family room where Officer

Orozco and Perry were and asked Perry to identify the owner of the suitcase and safe. Perry

stated they belonged to appellant.

       Heilman stated that he seized the safe and took it to his police vehicle. After providing

Bryant his Miranda rights (pursuant to Miranda v. Arizona, 384 U.S. 436 (1966)), Heilman

questioned Bryant about the suitcase and the safe. He further testified that when Bryant was

asked about the suitcase, he stated, “I’m not saying it’s anybody’s.” The officer stated that

Bryant admitted that the safe belonged to him and provided a combination for the safe’s lock that

Bryant claimed would “prove that there is nothing in there.” The combination that Bryant

provided, however, did not open the safe.

       Officer Heilman filled out an affidavit for search warrant to search the safe. In Paragraph

4 of the affidavit, he wrote the following:

               Mr. Bryant was in possession of 14 - 1 lb bags of marijuana,
               schedule II drugs, schedule IV drugs, 3 cell phones, and over
               $1400 in cash. I also found what appears to be a piece of paper
               that looks like it contains money that Mr. Bryant owes or amounts
               of money that other people owe Mr. Bryant. The 14 bags of
               marijuana were located right next to the safe. With the amount of
                                                -4-
               contraband that lends probable cause to Mr. Bryant possessing
               marijuana with the intent to distribute it; I believe additional
               contraband could be found inside the safe. Mr. Bryant told me he
               owns the safe.

Officer Heilman stated that he ultimately obtained a warrant from the magistrate to search the

safe. He also testified that when he searched the safe, he found 9 millimeter bullets and $7,000

in cash.

       Bryant was indicted for possession of ammunition by a convicted felon in violation of

Code § 18.2-308.2 and for possession of more than five pounds of marijuana with the intent to

distribute in violation of Code § 18.2-248.1. Prior to trial, Bryant filed a motion to suppress all

of the evidence seized during the search of Perry’s apartment. After conducting a hearing, the

trial court suppressed the items found from the search that took place in the foyer – namely the

bag containing cash and “a yellow sticky pad” with numbers on it, as well as the pill container

found in the jacket. It found that Perry’s consent did not authorize the officers to search the

items in the foyer because the officers knew – prior to conducting that search – that those

particular items did not belong to her. When asked to whom those items belonged, Perry

answered, “My boyfriend.”2

       However, the trial court denied the motion to suppress concerning the suitcase found in

the master bathroom, finding that the search of the suitcase was appropriate, based on Perry’s

consent to search the apartment. The trial judge noted that it was not until “after that search of

the purple suitcase, [that] the officer came out and went to ask the girlfriend who the suitcase

belonged to and she said it was her boyfriend’s.” Finally, the trial court denied the motion to

suppress regarding the contents of the safe. The trial judge stated, “Whatever was found in the



       2
         The Commonwealth did not file a pretrial appeal assigning error to the trial court’s
suppressing the items found in the foyer, and the suppression of them is not before us in this
appeal.
                                               -5-
purple suitcase[,] will that be sufficient for probable cause to search the safe and looking at that

and just applying that, given the amount of marijuana or what was found there in the purple

suitcase, the Court will find that was sufficient to deny the motion to suppress whatever was

found in the safe.”

       At the end of the bench trial, the trial judge found Bryant guilty of both charges and

sentenced him to fifteen years of incarceration, with ten years and eleven months suspended.

       On appeal, Bryant challenges the trial court’s denial of his motion to suppress with

respect to the evidence found as a result of the search of the suitcase and the subsequent search

of the safe. He argues, “The trial court erred in denying Bryant’s motion to suppress evidence

because Perry did not have the authority to consent to a search of Bryant’s property and the

search warrant issued thereafter was based on unlawfully seized evidence.”

                                            II. ANALYSIS

       “A defendant’s claim that evidence was seized in violation of the Fourth Amendment

presents a mixed question of law and fact that an appellate court must review de novo on

appeal.” Commonwealth v. Robertson, 275 Va. 559, 563 (2008). “In making such a

determination, an appellate court must give deference to the factual findings of the circuit court

and give due weight to the inferences drawn from those factual findings; however, the appellate

court must determine independently whether the manner in which the evidence was obtained

meets the requirements of the Fourth Amendment.” Id. “The defendant has the burden to show

that, considering the evidence in the light most favorable to the Commonwealth,” as we must

because the Commonwealth was the party that prevailed below in the trial court, the circuit

court’s denial of his suppression motion was reversible error. Id. at 564.

       Some of the items which the trial court determined were found as a result of an improper

search were listed on the affidavit that the police used to obtain a search warrant to search the

                                                -6-
safe. When a search warrant is based partly on evidence obtained by an illegal search, it is

proper for the appellate court to exclude the tainted part of the affidavit and then to determine

whether the untainted portion of the affidavit (that was not obtained in violation of the Fourth

Amendment) supports a finding of probable cause to issue a search warrant. See United States v.

Gillenwaters, 890 F.2d 679, 681-82 (4th Cir. 1989) (“[T]he totality of the circumstances

presented in the untainted portion of the affidavit supports a finding of probable cause to issue

the search warrant.”); Williams v. Commonwealth, 26 Va. App. 612, 619 (1998) (“[S]uppression

is not required ‘if, excluding the illegally obtained information, probable cause for the issuance

of the [search] warrant could still be found.’” (quoting United States v. Apple, 915 F.2d 899, 910

(4th Cir. 1990))). As the contents of the suitcase (the fourteen bags of marijuana) were included

in the affidavit to obtain the search warrant, we must first determine whether the search of the

suitcase was permissible.

                                  A. The Search of the Suitcase

The Supreme Court of Virginia stated in Glenn v. Commonwealth, 275 Va. 123, 130 (2008)

(citations omitted),

               The Fourth Amendment protects “[t]he right of the people to be
               secure in their persons, houses, papers, and effects, against
               unreasonable searches and seizures.” U.S. Const. amend. IV.
               Warrantless searches and seizures . . . are presumptively
               unreasonable. However, courts recognize exceptions to this
               general rule in several circumstances, including when a party
               voluntarily consents to the search. As in any Fourth Amendment
               review, the touchstone of our analysis is the reasonableness of the
               search under the circumstances.

       The search of the suitcase was based on Perry’s consent to search the apartment, as the

person on the lease for the apartment. The Supreme Court has also stated:

                        A third party has actual authority to consent to a search if
               that third party has either (1) mutual use of the property by virtue
               of joint access, or (2) control for most purposes. Even where
               actual authority is lacking, however, a third party has apparent
                                                -7-
               authority to consent to a search when an officer reasonably, even if
               erroneously, believes the third party possesses authority to consent.

                       Whether apparent authority exists is an objective,
               totality-of-the-circumstances inquiry into whether the facts
               available to the officers at the time they commenced the search
               would lead a reasonable officer to believe the third party had
               authority to consent to the search.

Id. at 132-33 (quoting United States v. Andrus, 483 F.3d 711, 716-17 (10th Cir. 2007)). In

Glenn, police officers went to arrest Glenn, pursuant to an arrest warrant, at the home of Glenn’s

grandparents, with whom Glenn lived. Glenn answered the door and was immediately arrested

and advised of his Miranda rights. The officers then obtained permission from Glenn’s

grandfather, who owned the house, to search the house. In one bedroom, where Glenn stated he

slept, an officer found on the floor a closed backpack that bore “no outward indicia of ownership

such as a nametag or a monogram and had no locking device.” Id. at 128. The officer opened

the backpack and discovered incriminating evidence against Glenn. However, Glenn argued on

appeal that “any conclusion by the police that [Glenn’s grandfather] had the authority to consent

to searching the backpack was objectively unreasonable as a matter of law.” Id. at 132. The

Supreme Court rejected Glenn’s argument. Noting that “[t]he backpack bore no indicia of

ownership, evidenced no limitations on access, had no characteristics that reflected a use by

reason of age or gender, and was located in a place open to all occupants of the house,” the

Supreme Court held that “it was objectively reasonable for the police officer to conclude

[Glenn’s grandfather’s] consent to search included the authority to consent to a search of the

backpack.” Id. at 133-34.

       Bryant argues that the facts available to the officers at the time of the search of the

apartment were not sufficient to lead an objectively reasonable officer to believe that Perry had

the authority to consent to the search of the suitcase. He argues that this case is distinguishable



                                                -8-
from Glenn because, in this case, Perry, who gave consent to search the apartment, “was actually

moving to New York and had her vehicle packed and ready to leave.”

       However, in Glenn, the Supreme Court rejected the “impossible burden” that would be

placed on police officers were a rule to be adopted “that they could never search closed

containers within a dwelling . . . without asking the person whose consent is being given ex ante

about every item they might encounter.” Id. at 135 (quoting United States v. Melgar, 227 F.3d

1038, 1042 (7th Cir. 2000)). Viewing the evidence in the light most favorable to the

Commonwealth, as we must on appeal because the Commonwealth is the party that prevailed

below in the trial court, it was objectively reasonable for an officer to conclude that Perry’s

consent included the authority to search the suitcase in her master bathroom. The evidence

shows that Perry was the sole lessee of the apartment. Although Officer Heilman knew that

Perry had moved some of her belongings to her car, he testified that Perry “made mention that

she had other items inside of the apartment and pointed to one part of the room [that] had some

items in them and then she pointed towards the hallway and -- but her speech trailed off and she

didn’t finish her sentence.” On cross-examination, when asked if Perry stated that all her stuff

was in the car, Heilman answered, “I don’t recall if she said that. If it’s on the body camera then

clearly she did. I just don’t recall hearing it.”3 Heilman also testified that Perry told him she had

shoes in the master suite area, which is where the suitcase was found. The evidence also shows

that Perry was not in the rooms with Officer Heilman that he searched after his search of the

foyer so she was not with him when he searched the first bedroom, the master bedroom, and the

master bathroom, where he came across and searched the purple suitcase. Heilman then went




       3
        The officer’s body camera video was never admitted into evidence at trial, and,
consequently, of course, is not in the record before us on appeal.
                                                -9-
back out to the family room, where Perry was, and asked her to whom the suitcase and safe

belonged.

       Under the totality of the circumstances, we hold that a reasonable officer could have

concluded that Perry had actual or apparent authority to consent to the search of the suitcase.

Like the backpack in Glenn, the suitcase had no identifying marks or name tags to give an officer

reason to believe the suitcase was not Perry’s suitcase. Based on Perry’s statements and the fact

that Perry was the sole lessee of the apartment, a police officer could reasonably have believed

that Perry’s shoes or other belongings were in the purple suitcase that was found in her bathroom

and that the suitcase belonged to her. Consequently, the trial court did not err in denying

Bryant’s motion to suppress the suitcase and its contents from being admitted into evidence.

                    B. The Search of the Safe Pursuant to a Search Warrant4

       The safe at issue (which was found in the same bathroom in which the suitcase was

found) was searched pursuant to a search warrant. As noted supra, when a search warrant is

based on an affidavit that contains information that was obtained in violation of the Fourth

Amendment, we exclude the tainted part of the affidavit and determine whether the untainted

portion of the affidavit (that was not obtained in violation of the Fourth Amendment) supports a

finding of probable cause to issue a search warrant. See Gillenwaters, 890 F.2d at 681-82;

Williams, 26 Va. App. at 619. Having concluded that the search of the suitcase that was found


       4
         The Commonwealth argues, “To the extent Bryant argues that the trial court erred in
finding the lawfully seized items were sufficient to establish probable cause to search the safe,
the defendant did not present that argument to the trial court and it is also without merit.”
However, at the hearing on the motion to suppress, Bryant argued that all the items that were
discovered by the police should be suppressed. Bryant’s counsel also stated to the trial court,
“And just for the record, Judge, I think the search warrant is based on the fruits of the poisonous
tree what they found before that.” Bryant’s counsel also simply agreed with the trial court’s
statement that whatever items were legitimately found were not the fruit of the poisonous tree.
Consequently, given the entire exchange between counsel and the trial judge, we disagree with
the Commonwealth that Bryant did not adequately preserve this argument for consideration on
appeal.
                                                - 10 -
on the bathroom floor of the master suite was permissible due to Perry’s actual or apparent

authority to consent to the search, we hold that it was permissible for a magistrate to consider the

contents of the suitcase (the fourteen bags of marijuana) when determining whether there was

probable cause to issue a search warrant for the safe located next to the suitcase. Therefore,

excluding the parts of the affidavit listing items which were later suppressed by the trial court,

the information in the affidavit that would remain for consideration would be the fourteen bags

of marijuana located “right next to the safe,” the two cell phones, and approximately $1,000 in

cash found on Bryant in the search incident to his arrest. With that information, a magistrate

could certainly conclude that there was probable cause to authorize a search of the safe for

evidence pertaining to the criminal activity of possession of marijuana with the intent to

distribute. See, e.g., Brown v. Commonwealth, 68 Va. App. 517, 526-28 (2018) (holding that

the appellant’s attempt to purchase more than five pounds of marijuana and his possession of

more than $5,000 in cash were enough for a magistrate to find probable cause to issue a search

warrant for appellant’s home). Consequently, the trial court did not err in denying Bryant’s

motion to suppress the ammunition and large amount of cash found in the safe from admission

into evidence.5

                                         III. CONCLUSION

       In short, a reasonable police officer could have concluded that Jasmine Perry had either

actual or apparent authority to consent to a search of the suitcase found in the master bathroom

of her apartment. Perry, who was the only person renting the apartment, told the officers that she

had other items in the apartment, including shoes in the master suite area. There were no



       5
         Because we find that the trial court did not err in denying the motion to suppress based
on Perry’s actual or apparent authority to consent to search the suitcase and the finding of
probable cause to issue a search warrant for the safe, we do not reach the Commonwealth’s
arguments pertaining to the good faith exception to the exclusionary rule.
                                               - 11 -
identifying marks or tags on the purple suitcase which would have given an officer reason to

believe Perry did not have authority to consent to its search. In addition, when police officers

have already obtained consent to search a dwelling, they are not required to seek confirmation of

the ownership for every backpack, suitcase, or other closed container they come across during

their search. See Glenn, 275 Va. at 135. See also Melgar, 227 F.3d at 1042. Consequently, the

trial court did not err in denying Bryant’s motion to suppress the evidence found during the

search of the suitcase.

       Furthermore, while some of the items listed in the affidavit for the search warrant were

suppressed by the trial court (which suppression is not under review in this appeal), the

remaining information in the affidavit is still certainly sufficient for a finding of probable cause

of possession of marijuana with intent to distribute so as to properly authorize a search of the

safe. The remaining information in the affidavit consisted of Bryant’s possession of fourteen

one-pound bags of marijuana inside of a suitcase which was found next to the safe – as well as

two cell phones and a very large amount of cash found on Bryant during the search incident to

his arrest. The trial court did not err in denying Bryant’s motion to suppress the ammunition and

other items found as a result of a search of the safe.

       For all of these reasons, we affirm the judgment of the trial court and Bryant’s

convictions for possession of ammunition by a convicted felon and for possession of more than

five pounds of marijuana with intent to distribute.

                                                                                            Affirmed.




                                                - 12 -
