                               COURT OF APPEALS OF VIRGINIA


Present: Judges Kelsey, Haley and Beales
Argued at Chesapeake, Virginia


RONALD RAY ARMS
                                                              MEMORANDUM OPINION * BY
v.     Record No. 0535-07-1                                   JUDGE RANDOLPH A. BEALES
                                                                     MAY 27, 2008
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                                Aundria D. Foster, Judge

                 Charles E. Haden for appellant.

                 Richard B. Smith, Special Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       Ronald Ray Arms (appellant) pled guilty to abuse and neglect of an incapacitated adult,

in violation of Code § 18.2-369(A). On appeal, he argues that the trial court erred in denying his

motion to suppress. For the reasons that follow, we affirm.

                                          I. BACKGROUND

       “‘On appeal from a denial of a suppression motion, we must review the evidence in the

light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.’”

Kyer v. Commonwealth, 45 Va. App. 473, 477, 612 S.E.2d 213, 215 (2005) (en banc) (quoting

Slayton v. Commonwealth, 41 Va. App. 101, 103, 582 S.E.2d 448, 449 (2003)).

       On May 10, 2005, Officer Jennifer Jones of the Newport News Police Department “was

dispatched to 538 Denbigh Boulevard in reference to a welfare check on an elderly female living

in the residence.” “[T]he reporting person stated to dispatch they felt the woman was not being


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
properly taken care of by her adult son.” Upon her arrival, Jones asked a young man, who was

talking to a group of teenagers in a parked car, whether she had arrived at 538 Denbigh

Boulevard. The young man said that she had arrived at that address, and acknowledged that

there was an elderly woman living there. Jones thought this young man was family (“either a

nephew or grandson”) of the elderly woman.

       As Jones walked toward the residence, appellant met her “outside on the sidewalk area.”

Jones introduced herself and told him she was dispatched to the address to perform a welfare

check on an elderly woman. Appellant confirmed that there was an elderly woman in the

house – his mother. Jones asked appellant if she could go inside the residence to check on her.

According to Jones, appellant “didn’t say anything to me.” Jones described appellant’s physical

response as “hesitant. It wasn’t like he was uncooperative. He just kind of paused and then I

said, ‘Can we go inside?’” Appellant then “turned around[,] and he walked up the stairs” that led

to the front door of the residence. Jones “turned around and followed him.” Appellant led Jones

“into the residence,” and she followed him inside. Jones also explained that she “never let[s]

anyone, as far as police procedure, behind [her], to [her] left or side.”

       After crossing the threshold of the doorway, Jones noticed a strong odor of urine, which

was “kind of overwhelming.” Jones saw appellant’s mother seated in a recliner in the living

room approximately ten feet from the doorway. “She was slumped over to one side of her chair,

to the left, so her head was slumped over. She was covered over by a single sheet.” Jones

further detailed her condition, recounting the following:

               Her cheekbones were very sunken in. You could see the bone part.
               Right below the bone, I guess where your temples would be
               considered, was very sunken in. Her lips appeared to be not
               blistered, but dry, kind of chapped, and she was unresponsive. Her
               eyes weren’t – she wasn’t blinking like a normal individual would,
               but her eyes weren’t closed, they were kind of half open and half
               shut, but she was unresponsive.

                                                 -2-
       Appellant told Jones that he was his mother’s primary caregiver. Appellant “stated that

she didn’t have any serious medical conditions, the only thing she had was Alzheimer’s disease.”

Appellant said that his mother’s last doctor’s appointment was six months prior. Appellant also

“stated his mom did not have any control over her faculties or bowel movements,” and he

explained that “they don’t use diapers anymore, that she either sits on her chair with the cushions

covered by trash bags or on the couch.” Appellant said that his mother did not have any clothes

on – she was just covered by the sheet. Appellant’s mother had rashes on her skin.

       Officer D.W. Bush arrived at the scene shortly after Officer Jones. He remembered

smelling a strong odor of urine and seeing appellant’s mother in the recliner “in a fetal position.”

Bush “could see open sores on her body, red rashes, [she was] very, very thin, malnourished”

and “unresponsive.”

       Based on her observations of appellant’s mother’s condition, Jones asked for dispatch to

send a medic to the residence. EMT Brenda Blackwell was dispatched to the residence along

with other medical personnel. Blackwell remembered noticing an overwhelming odor of urine

while she stood in the front yard. Blackwell and the other medics decided to transport

appellant’s mother to the hospital.

       Josh Brendle, appellant’s nephew and the young man Jones encountered upon her arrival,

said that he lived with appellant. Brendle said he could not hear the conversation between Jones

and appellant, but he saw appellant enter the house after Jones. Brendle said that he never heard

appellant tell Officer Jones that she could not come inside, nor did he thereafter hear appellant

tell anyone to leave the residence.

       Appellant testified that he “just froze” when he met Officer Jones and claimed that he

could not move or talk upon seeing her. According to appellant, Jones just walked past him and




                                                -3-
through the front door into his residence. He claimed that he did not hear what Jones asked him,

but that she might have asked him to enter the house.

       Appellant was indicted on September 12, 2005 for abuse or neglect of an incapacitated

adult, in violation of Code § 18.2-369(A). He asked the court to suppress the evidence because

Officer Jones entered the house without a warrant or probable cause. The trial court denied

appellant’s motion to suppress, ruling that Officer Jones’s function as a community caretaker

allowed her to enter the residence without a warrant. Given its holding, the trial court declined

to rule on the Commonwealth’s consent argument. Even so, after noting “some conflict” in the

evidence on this issue, the trial court resolved the most salient factual issue by specifically

finding that, following the officer’s request for permission to enter the home, “the officer went

into the home and with Mr. Arms [appellant] leading the way.” (Emphasis added.) Appellant

entered a conditional Alford 1 guilty plea to the charge. This appeal followed.

                                            II. ANALYSIS

                        In reviewing the denial of a motion to suppress evidence
                claiming a violation of a person’s Fourth Amendment rights, we
                consider the facts in the light most favorable to the
                Commonwealth, the prevailing party at trial. The burden is on the
                defendant to show that the trial court committed reversible error.
                We are bound by the trial court’s factual findings unless those
                findings are plainly wrong or unsupported by the evidence. We
                will review the trial court’s application of the law de novo.

Malbrough v. Commonwealth, 275 Va. 163, 168-69, 655 S.E.2d 1, 3 (2008).

       Appellant argues that the trial court erred in denying his motion to suppress. To counter

appellant’s argument, the Commonwealth advances three different theories in support of its

claim that Officer Jones’s entry into appellant’s residence without a search warrant was




       1
           North Carolina v. Alford, 400 U.S. 25 (1970).

                                                 -4-
reasonable under the circumstances: 1) appellant’s consent to the warrantless entry, 2) the

community caretaker doctrine, and 3) the doctrine of inevitable discovery. 2

                                            A. CONSENT

       “[I]n any Fourth Amendment review, the touchstone of our analysis is the reasonableness

of the search under the circumstances.” Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d

910, 913 (2008). That being said, “[w]arrantless searches and seizures in a person’s home are

presumptively unreasonable. However, courts recognize exceptions to this general rule in

several circumstances, including when a party voluntarily consents to the search.” Id. (citation

omitted).

                       “Consent to a search . . . must be unequivocal, specific and
               intelligently given . . . and it is not lightly to be inferred. Although
               the consent need not be oral, mere acquiescence is not enough.
               Additionally, the Commonwealth bears the burden of proving that
               consent was in fact given, and that burden is heavier where the
               alleged consent is based on an implication.”

Jean-Laurent v. Commonwealth, 34 Va. App. 74, 78-79, 538 S.E.2d 316, 318 (2000). “Courts

have found consent to a specific request to search a person when evidenced by conduct alone,

such as turning and ‘placing [one’s] hands against the wall without prompting,’ Bynum [v.

Commonwealth], 23 Va. App. [412,] 417, 477 S.E.2d [750,] 753 [(1996)], or shrugging one’s

shoulders and then extending one’s arms. United States v. Wilson, 895 F.2d 168, 170 (4th Cir.

1990).” Id. at 79, 538 S.E.2d at 318. See also Barkley v. Commonwealth, 39 Va. App. 682, 688,


       2
               On appeal, we may affirm on grounds different from those on
               which the trial court based its decision so long as the issue was
               addressed at trial, evidence exists in the record to support those
               alternate grounds, the trial judge’s decision does not reject those
               grounds, and no further factual resolution is necessary to support
               the decision.

Debroux v. Commonwealth, 32 Va. App. 364, 371-72, 528 S.E.2d 151, 155, aff’d, 34 Va. App.
72, 537 S.E.2d 630 (2000) (en banc).

                                                 -5-
576 S.E.2d 234, 237 (2003) (finding consent to enter where, in response to an officer’s request to

continue the conversation inside, the defendant, “[w]ithout hesitation,” “allowed the officers in

the apartment”).

       “However, conduct which evidences nothing more than acquiescence, particularly when

no request to search has been made, has been held insufficient to constitute consent.”

Jean-Laurent, 34 Va. App. at 79, 538 S.E.2d at 318. Compare United States v. Griffin, 530 F.2d

739 (7th Cir. 1976) (finding implied consent to enter an apartment where, even though the

defendant initially responded “no” and “shut the door in the officers’ faces,” the defendant, in

response to a second request from the officers, “stepped back, leaving the door open, and led the

officers into the apartment”); with United States v. Shaibu, 920 F.2d 1423, 1424 (9th Cir. 1989)

(finding no consent where “officers did not ask permission to enter [the defendant’s] apartment

nor state their intention to do so, but simply followed [the defendant] through the open door”; the

court explicitly distinguished Griffin on the basis that, unlike with the officers there, the officers

never requested entry into Shaibu’s apartment).

       The evidence in this record demonstrates that Officer Jones, after explaining to appellant

that she was there to do a welfare check on an elderly lady, made a specific request to appellant

by asking him, “Can we go inside?” 3 According to Jones, appellant said nothing in response to

her request to go inside the residence. However, he did respond. He changed his direction by

turning around, walked up the steps to his front door, and led Jones into the residence. While

appellant and his nephew, Josh Brendle, remembered the encounter differently and said that

Jones entered the residence first, the trial court specifically found that “the officer went into the

home [] with Mr. Arms [appellant] leading the way.” Since that finding of fact is not plainly


       3
        Appellant, who lived at 538 Denbigh Boulevard with his mother, unquestionably
possessed the authority to give consent to Jones’s specific request to enter his residence.

                                                 -6-
wrong or without evidentiary support, we are bound by it on appeal. See Malbrough, 275 Va. at

169, 655 S.E.2d at 3 (“We are bound by the trial court’s factual findings unless those findings are

plainly wrong or unsupported by the evidence.”). In addition, Jones specifically testified that she

“never let[s] anyone, as far as police procedure, behind [her], to [her] left or side.”

       Here, appellant’s actions amounted to more than mere acquiescence. If he had simply

stood still and watched Jones enter the house, appellant might have only acquiesced to Jones’s

request. Instead, as the trial court found, appellant turned around and led Jones directly inside.

Based upon appellant’s response to her specific request to enter the residence, Jones could

reasonably believe that she had received consent, and not mere acquiescence, to enter the

residence. Therefore, we hold the facts of this case taken in the light most favorable to the

Commonwealth, which we must do in this appeal given that the Commonwealth prevailed on the

motion to suppress, demonstrate that appellant consented to Jones’s entry into his residence.

Consequently, Jones’s warrantless entry into appellant’s residence “comport[ed] with the

standard of reasonableness required by the Fourth Amendment.” Craddock v. Commonwealth,

40 Va. App. 539, 552, 580 S.E.2d 454, 461 (2003).

                B. COMMUNITY CARETAKER/ INEVITABLE DISCOVERY DOCTRINES

       Because we hold that appellant’s actions supplied Officer Jones with consent to enter

appellant’s residence, we need not reach whether or not the trial court correctly applied the

community caretaker doctrine to the facts of this case. In addition, we need not reach whether or

not the doctrine of inevitable discovery applies to the case at bar.

                                          III. CONCLUSION

       Based upon the foregoing, we affirm the trial court’s denial of appellant’s motion to

suppress.

                                                                                          Affirmed.

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