*1 III. plain meaning premarital agreement
We hold the necessarily does not exclude or em- interpretation Vilseck’s ambiguity, brace Wiatt’s. Given this textual the chancellor should consider on remand whatever admissible extrinsic evi- proper agreement dence exists on the construction of the reinterpret light it of this additional evidence.
Reversed & remanded.
v. Virginia. COMMONWEALTH of George Fisher Robinson Virginia. Commonwealth 2474-03-2, Record Nos. 2539-03-2. Appeals Virginia,
Court
Alexandria.
May 2005. *7 (Rhonda John, Quagliana; Francis St. McQ. Lawrence Charlottesville, Lawrence, LLP, briefs), for on Bowling & Kenty Elisa Robinson. appellant P.C., (David Heilberg; Raynor, T. Martin &
Jonathan Wren Charlottesville, briefs), George for Robin- on Fisher appellant son. III, Attorney (Jerry Jeffrey
Donald General E. Assistant General, briefs), for Attorney appellee. on Kilgore, W. HUMPHREYS, FELTON, JJ, Present: and ANNUNZIATA, S.J. *.
HUMPHREYS, Judge.
George F. Robinson Elisa K. Robinson (collectively, Robinsons”) appeal “the their convictions contributing minor, of a delinquency § violation of Code 18.2-371. argue appeal The Robinsons on trial in court erred denying that, their motions to suppress, contending because investigating officer was located their home when he activity, resulting witnessed illicit search right violated their Fourth Amendment to be free from unreasonable searches following and seizures. For the rea- sons, we disagree affirm their convictions.
I. BACKGROUND In with review, accord our on usual standard appeal a denial of a motion to suppress, we view evidence and all flowing reasonable inferences from the evi Commonwealth, dence most light favorable to the Commonwealth, party prevailing below. Garcia v. Va.App. 184, 189, (2003); Commonwealth, S.E.2d Sabo v. 63, 69, (2002). Va.App. 561 S.E.2d 16, 2002, August On County Depart- the Albemarle Police ment separate received three calls telephone reporting an alleged underage drinking party at home. Robinsons’ Corporal Scott Cox was dispatched investigate allega- these tions, and he arrived at the Robinsons’ home at approximately house, p.m. 11:00 From the state road front Cox road, see ten twenty parked could cars on the state as well parked as two to three cars the left-hand side *8 house, driveway. From that Cox also position, could see the door, porch, yard, the front the front and front although the * Judge participated hearing the Axmunziata and decision of this case prior to the effective date of her retirement on December 2004 and designation by judge pursuant thereafter her as senior to Code § 17.1-401. driveway. The the entire backyard or not see the he could on, and the lights turned front door were above the floodlights turned also to the front door were along leading the sidewalk on. its car with head-
Cox, driving police a marked who was to drive on, driveway and started turned into the lights driveway, up the Cox proceeding the house. While towards side right vehicles near parked additional saw several the side vehicles near driveway, parked as well as “several of him. the house” front straight car. From his police in his up driveway Cox continued car, “activity” some began he see police inside position where the walk- backyard. reaching point in the Before driveway, the Robinsons’ way to the front door intersects with The holding clear beer bottles. Cox saw two individuals individuals, appeared underage, whom to be were both of away from eight yards tree seven or standing pine about [Cox], juveniles car. The two “looked at looked police Cox’s bottles, house, and ran dropped the beer yelled ‘cops,’ his pulled down a fence line the woods.” Cox toward cars and looked to his left. parked car behind one of juveniles running toward vantage point, From that saw “[h]e Also, covered with patio the woods.” could see table “[h]e about the back- and noticed bottles strewn beer bottles beer car, “yelled stop got people then out of his yard.” Cox off the waiting other officers who were running, and radioed kids east into the woods.” running were property charged with nineteen The Robinsons were arrested delinquency of a minor. Both contributing counts of contending a motion to that Cox was parties suppress, filed the illicit unlawfully present on he viewed property when activity. intro-
At were hearing, photographs several suppression Ac- premises. depicting layout the Robinsons’ duced from the driveway photographs, originates cording into splits The then road in front of house. state house, they paths. Both continue towards paths two *9 both bend right. towards the The two branches of the drive- way merge front, a single back into driveway right- near the hand corner of the house. positioned entirely The house is the left the driveway. of
Also, lighted sidewalk leads from the driveway the front door of the Robinsons’ home. This sidewalk with intersects driveway just past the area where the two branches driveway reunite. A bush large has been in planted front of the sidewalk at the point where the sidewalk with intersects driveway, shielding a portion the sidewalk from view. Other than walking grass yard, across the front driveway connecting sidewalk serve as the means of only pedestrian apparent access front door of the house. driveway paths Where the are divergent, area between the two branches forms an “island” containing numerous trees. trees, These along general rightward with the bend of the driveway, backyard, shield the garage, portion and a large driveway from public portion view. The driveway shielded from view includes the bush and the area where the front sidewalk intersects with driveway.
At the suppression hearing, Cox testified that his car was next to driveway the bush he “clearly” when saw juveniles “two male standing on the other side of the tree holding clarify position beer bottles.” To driveway from which the juveniles, officer observed the the trial court Cox, you asked you “So were at the bush when two saw the responded, individuals?” “That’s right.” Cox repeatedly Cox was asked on cross-examination whether he entered the for the purpose knocking on the front door to speak occupant with of the house. Each time Cox question, was asked the he that he responded entered the property “investigate.” further responded Cox in the affir- mative to the following question: you “Isn’t it correct that you have described the situation hoping were to observe as the kitchen, when flick on in a you light effect dark and the asked, cockroaches scatter?” Cox was also you “So were looking people scattering your a reaction of to confirm Cox party?” underage drinking had an you suspicion “Right.” responded, trial court dated
By opinion August letter In its written to suppress. the Robinsons’ motions denied to enter “planned that Cox the trial court observed opinion, *10 allegations underage of con- investigate property that, “[a]s of trial court also observed sumption alcohol.” The backyard see the or driveway, he could not Cox down the went house, yard, the front could see the garage,” “[h]e that but that the trial court found Additionally, and the front porch.” trespassing” as a “no signs posted” were no “[t]here —such driveway. sign the entrance —at evidence, found that on this the trial court Based of the house driveway part was not Robinsons’ and, therefore, presence there [did] concluded that “Cox’s additionally The court the Fourth Amendment.” implicate in the Robinsons’ presence found Cox’s talk,” justified by officer’s to conduct a “knock and right is, front door to a home and knock approach ratio- speak preceding with an Under either of occupant. nales, place was in a the trial court concluded that “Cox lawful juveniles drinking driveway” in he observed the two when beer, pursuant therefore admissible and his observations were Ac- to the warrant plain exception requirement. to the view court the Robinsons’ motions to cordingly, the trial denied suppress. counts subsequently of nine
The Robinsons were convicted minor, of and the trial contributing delinquency of jail, to six three each defendant months court sentenced trial court ordered the months on each count. The suspended, jail of consecutively, resulting run active time sentences to The each defendant. Robinsons twenty-seven months for appeal.
II. ANALYSIS
“
find
Although
by
are bound
trial court’s
‘[w]e
wrong’ without
fact unless
or
evi-
ings
‘plainly
of historical
them,’
dence to support
... we review
de novo
trial court’s
application
legal
standards ...
particular
facts of the
Commonwealth,
case.”
v.
254, 258,
McCracken
39 Va.App.
(2002)
banc)
(en
572 S.E.2d
(quoting McGee v.
Commonwealth,
193, 198,
25 Va.App.
487 S.E.2d
(en
banc))
States,
(citing
v.
Ornelas
United
517 U.S.
690, 699,
1657, 1663,
(1996)).
116 S.Ct.
Whether a defendant has a expectation reasonable the item place seized searched is mixed is, question law and fact. That we are bound the trial fact, court’s underlying findings but we review de novo the ultimate determination of whether the Fourth Amendment applies under the circumstances this case. See Sharpe *11 Commonwealth, 448, 454, 346, 44 Va.App. 605 S.E.2d 349 (2004) (“[W]e de review novo the trial application court’s legal defined standards such as whether a defendant a had expectation reasonable of privacy permit sufficient to him search.”). raise a Fourth Amendment a challenge to A. Cox Was the Curtilage On When He Observed Drinking Juveniles Beer
The Robinsons contend that Cox
conducted
uncon
stitutional
place
search because the
from which Cox observed
juveniles drinking
part
beer
curtilage
was a
of the
of their
Although
agree
juveniles
home.
we
that Cox observed the
drinking
curtilage
beer from within the
of the Robinsons’
otherwise,
home and the trial court erred in concluding
II.B,
will
determination
not end our
See Part
inquiry.
infra.
Because homeowners
a
possess
expecta
reasonable
homes,
tion of
in the curtilage
surrounding
States,
1735,
170, 180,
Oliver v.
466
United
U.S.
104 S.Ct.
(1984),
1742,
605
Id.;
to the home.”
Amendment
that attach
protections
Fourth
1, 15,
Commonwealth,
497
Va.App.
v.
see also Jefferson
(1998) (“Consistent
the common law
474,
with
S.E.2d
‘home,’
Court
Supreme
of the
understanding of the extent
apply
protections
Fourth Amendment
held that the
has
house.”). Be-
of the
‘curtilage’
to the
apply
the house also
curtilage
protects
Amendment
cause the Fourth
not enter the
home,
may
a
officer
as the
same extent
warrant,
circumstances, or pursu-
a
curtilage
exigent
without
occupant.
from the
See
to an
invitation
express
ant
573,
1371,
York,
589-90, 100 S.Ct.
v. New
445 U.S.
Payton
(“To
1381-82,
(1980)
in
home
arrested
Generally, curtilage home is the life extends.” activity home to which the home around the 1742; Oliver, at S.Ct. at see also v. 466 U.S. Wellford Commonwealth, 297, 301, S.E.2d 227 Va. convenient, “curtilage” “space necessary as the
(defining
carrying
and the
habitually
family purposes
used
garden or field which is near
employment;
yard,
domestic
dwelling”).
“[W]hether
and used
connection with
deter
particular place
of the home is
within
case-by-case
Jefferson,
Va.App.
mined on a
basis.”
Dunn,
480 U.S.
(citing
at 481
United States
S.E.2d
(1987)).
1134, 1140 4,
home,
[2]
whether
area is
included
within
enclosure
surrounding home,
[3]
the nature of the uses to
which
the area
is
put,
[4]
steps
taken
the resident to
by by.
people passing
the area from observation
protect
Dunn,
1140;
Applying the Dunn to this factors we conclude that of portion driveway from which Cox observed the juveniles drinking beer —the area next to the bush—falls the curtilage First, within of the Robinsons’ home. the area next to the bush is within a few feet the home itself. Second, the Robinsons testified that they used the area for washing unloading cars and groceries, home-related activities that evidence the “nature of the uses which the area is put.” Third, id. although See the area next to the bush is not id., home,” “included within an surrounding enclosure see the area is from protected public Specifically, observation. although the Robinsons post any did erect fence or no- signs, the trespassing trees and layout ob- evident, therefore, scure the area from It is view. the area next the bush is ... “protect[ed] from observation by people passing by.” Id. that three out of Given the four satisfied, Dunn compelled factors are we are to conclude that “intimately area next the bush is tied to the home itself” and, thus, falls within the curtilage the Robinsons’ home. Jefferson, See at Va.App. (finding S.E.2d place defendant’s arrest curtilage constituted because “the proximity place where Harpster appel- Officer arrested lant was extremely appellant’s dose house and not be could by pedestrians passing viewed and drivers front ” added)); Jenkins, house (emphasis see also United States v. (6th Cir.1997) (finding F.3d that defendant’s backyard it because was “well shielded from the people passing by only public thoroughfare view of near property”). defendant’s
607
hold-
trial court erred in
that the
Accordingly, we conclude
not
to the
a
driveway next
bush
area of the
that the
ing
However, in
of our
light
curtilage of the house.
part of the
expecta-
a
did not have
reasonable
the Robinsons
holding that
II.B, infra,
Part
this
driveway,
see
privacy
tion
Commonwealth, 12 Va.
Lavinder v.
is harmless. See
error
banc)
(en
(1991)
910,
(noting
1003, 1005,
912
407 S.E.2d
App.
conclude,
can
reviewing
harmless “if a
court
an error is
that
function, that,
...
had the
finding
fact
usurping
without
same”).
occurred,
would have been
[result]
error not
A Reasonable
Robinsons Had
B. Whether the
in the Area
Expectation
Privacy
Driveway by the Front Sidewalk
curtilage
Although Cox was
within the
positioned
observations,
does not
his
that determination
when he made
“
a person
is well
inquiry.
‘[w]hat
end our
It
established
subject
...
not
of Fourth
exposes to the
is
a
knowingly
public
”
Ciraolo,
207,
protection,’
v.
476 U.S.
Amendment
California
(1986)
1809, 1813,
213,
(quoting
106
L.Ed.2d 210
Katz
S.Ct.
507,
States,
347, 351,
511,
v.
389 U.S.
S.Ct.
United
(1967)),
expecta
no reasonable
L.Ed.2d 576
because there is
places
open
public
in items or
that are
tion
Greenwood,
35, 41,
486 U.S.
observation. See California
(1988).
1629,
The
we
question
108 S.Ct.
L.Ed.2d 30
answer, therefore,
knowingly
must
is whether the Robinsons
driveway next to the
the area of their
exposed
public
bush,
activity.1
criminal
from which Cox viewed the
place
curtilage
agree
that observation of the
is
1. We
with the Commonwealth
police
public
prohibited
conduct observations from a
when
Riley,
vantage point.
generally
U.S.
109 S.Ct.
See
Florida v.
(1989)
curtilage
(approving observation of
1. is Driveway Whether Visible From the Public Road argues
The Commonwealth that the Robinsons have no expectation privacy driveway reasonable of in their because segment driveway a of the from visible the state road. We disagree with this contention. We note that each of the cases upon by because, relied distinguishable Commonwealth is cases, in those the driveway entirety was viewable in its from public Commonwealth, thoroughfare. See Shaver v. 30 Va. 789, 793, 797, 393, 395, App. 520 S.E.2d (upholding 397 police parked search of an ATV in driveway defendant’s because the ATV was “visible from the road” and because “defendants made no to restrict or attempt shield drive view”); Roccio, way public from see also United States v. 981 587, (1st Cir.1992) (finding F.2d expectation no reasonable privacy clearly of in car and where car driveway “was visible from the street on an driveway”); unobstructed Maisa Welcher, (9th Cir.1991) (“ v. no 940 F.2d ‘The expecta privacy tion of of possessor may reasonably which a land have while on carrying driveway activities his will generally depend degree upon the nature of the activities and the added) visibility the street.’” (emphasis (quoting United from (9th Magana, Cir.1975))); v. States F.2d Unit Smith, (6th Cir.1986) (finding ed States v. 783 F.2d no driveway expectation privacy reasonable defendant’s road [public] between the no obstructions “there were where 636 F.2d v. house”); Humphries, States United and Cir.1980) driveway to view (9th into (finding entry expectation no reasonable violated plate a vehicle license from street” “the auto was visible privacy where fence, shrubbery aby enclosed driveway [not] where “the barrier”); 593-94 Kelly, S.W.3d State other cf. expectation (finding no reasonable (Mo.Ct.App.2003) “the porch because leading to front area around stairs by pass- from observation protected enclosed or area was not entirely public from the way visible ersby any and was street”).
Here, from the of the was viewable only portion road, driveway from which Cox the area in the state from view his was shielded conducted observations Indeed, trial driveway. the trees and the bend backyard or not see the court found that Cox could specifically to the trees located between branches garage due *15 not two it that he could see the driveway, the is evident the area next to until he reached the juveniles drinking beer the bush, which, above, not viewable from as discussed the the state road. Because area from which Cox observed to of the public criminal was not members activity viewable re- road, legitimately traveling on the state the Robinsons in that area of expectation privacy a reasonable of tained an or public express driveway they unless extended Carter, See State property. invitation enter the implied (finding that defen- 636 P.2d Or.App. portion of in a of his expectation privacy dant had reasonable inner that area was beyond gate an because property beyond gate). from an outer metal viewable Implied
2. Invitation had no argues that the Robinsons The Commonwealth also in the front of the area expectation reasonable because, Robinsons night party, on sidewalk a including police anyone, invitation to extended officer, knock. The Common- the front door and approach that,
wealth’s argument door, approaching front visitor necessarily would have to up enter and walk driveway and then cross the area next to the bush order walkway access the to the front door. Because the Robinsons visitors, expect officer, should including to enter the entered, same area that Cox the Commonwealth reasons that knowingly exposed Robinsons public. area The Commonwealth concludes that the Robinsons therefore cannot expectation have reasonable of privacy in that particular and, result, area as a presence Cox’s in that area did not offend the Fourth Amendment.
Considering the of totality case, circumstances this agree we with the Commonwealth and conclude that Robinsons an implied extended invitation to the public— including law enforcement officers—to use their front sidewalk when attempting to contact owners occupants that, the property. We also conclude as taking, must, we light historical facts most favorable to the Commonwealth, Cox’s conduct did not fall scope outside the this implied invitation.
a. Whether the Robinsons Implied Extended an
Invitation to Enter the Premises that, It is generally recognized they unless affirma tively warn or discourage trespassers, owners or possessors private property invite implicitly upon intrude certain, noted, limited areas As property. we have
“People commonly have expectations, different whether con not, sidered or for the access areas of their premises than they Thus, do more areas. place secluded we do not things of a private may nature our front porches we *16 very well entrust to seclusion of or backyard, a patio life, deck. In the course urban we have come expect to public upon various members of the to enter such a drive salesmen, way, e.g., newspaper boys, brush postmen, Girl sellers, motorists, Scout cookie distressed neighbors, Any may friends. one of reasonably expected them be to report activity observations criminal the police.” to
611
v.
Shaver,
796,
State
(quoting
This ap used would be when of the property those areas with ordinary speak attempt an proaching the residence Thus, curtilage that must id. areas occupants. See example, the front door—for approach in order to be crossed sidewalk, generally porch and front driveway, front —are See, e.g., Amendment protection. from Fourth exempted Clark, (Ct.App.1993) P.2d 124 Idaho State (“There public use access implied invitation for the is areas, house, driveways, parking side routes to the such as no walks, entry, and there can be reason pathways as which can be expectation of to observations privacy able areas.”). result, if owner property from such As made a particular “path” has to use implicitly public invited home, no to access his he has reasonable attempting when expectation of in that area. See id. extension, given invitation is
By same pursuit while police officers who enter Shaver, legitimate Va.App. at police business. See (“ expectation ‘If S.E.2d at 397 one has reasonable may enter the their society property various members likely it equally he should find personal pursuits, or business ” Corbett, 490)); at 516 P.2d (quoting that the will do so.’ police Cada, 469, 477 923 P.2d see also State v. 129 Idaho (“[T]he house, to the includ direct access routes (Ct.App.1996) areas, entry, are ing and parking driveways pathways invited, police [] impliedly areas which activity restricting permitted officers to such areas are as would the same intrusion and same level of observation ”).2 Ac ‘reasonably respectful citizen.’ expected be from in order cordingly, private property enter onto “[w]hen purpose legitimate to conduct an or for another investigation LaFave, 2.3(f), 600- § generally Wayne See Search 2. R. Seizure (4th ed.2004). *17 612
and restrict their entry places other visitors would be expected go, walkways, such or driveways, porches, any as observation made from these areas is permissible under the State, Fourth 83, Amendment.” Trimble v. 816 N.E.2d 88 v. (Ind.Ct.App.2004); Maxfield, see also State 125 Wash.2d 123, (1994) (“If 378, 886 P.2d 134 a law or enforcement officer agent go does not beyond the area of the residence impliedly open to the such as public, driveway, the walk- or way, residence, an access route leading privacy to the no invaded.”). interest is
An implied generally invitation is presumed exist absent evidence of an affirmative intent to public exclude the See, from Kozlowski, the premises. e.g., People v. 69 N.Y.2d 761, 101, (1987) (“Absent 513 611, N.Y.S.2d 505 612 N.E.2d public, evidence of intent to entryway exclude to a person’s house implied permission offers to approach and door.”); knock on the 414, front v. Somfleth, State 168 Or.App. (2000) (“A 8 P.3d can abrogate homeowner presumption to approach by consent the front door undertaking sufficient steps to exclude casual from the visitors yard.”). Here, then, whether, front we must consider under circumstances, totality affirmatively the Robinsons intended to exclude members premis from their es. generally See State v. Wyatt, Idaho 961 P.2d (“The 656 (Ct.App.1998) determination whether particular citizen a legitimate expectation had of privacy depends upon the unique facts of each case. We therefore examine the protect citizen’s efforts to his own from observation the general public, taking into account norms of social conduct and the nature the premises.”). that may particularly
Factors be relevant this include, (1) determination inter alia: whether homeowner barriers, fences, any physical has erected gates such as or (2) property, across the entrance to the whether homeowner has “no posted signs, trespassing” such as “private property” signs, indicating desire exclude the See, Christensen, public from premises. e.g., v. State (no (1998) to enter implied invitation 143, 953 P.2d Idaho by a obstructed entrance where the sign); “no State trespassing” with a gate posted closed State v. Pacheco, (Mo.Ct.App.2003); 101 S.W.3d (“[Cjourts 436, 860 P.2d McIntyre, Or.App. *18 circumstances, the surrounding including all must consider intent.”); fence, to the residents’ determine existence of 790 P.2d Wash.App. Ridgway, State v.
(1990) doorstep from should marijuana recovered (holding that marijuana observed the because suppressed have been dogs gate evading guard and closed walking after around house). approaching while barriers
Here, any physical not erect Robinsons did the no gates, There were property. onto their barring entry the fences, wires, that members of indicating or cones highway and driveway not use the Robinsons’ public were welcome to the speak occupants to with the of an effort front sidewalk that the they any signs indicating premises. post Nor did upon property their general public was welcome enter totality of the Considering their front door. approach circumstances, the Robinsons extended we conclude and an to enter public implied invitation premises. of front sidewalk their Scope
b.
Cox Exceeded
Whether
Implied
Invitation
an
hold
the Robinsons extended
Although we
and
property
to enter
invitation to
implied
door,
also consider whether Cox’s
the front
we must
approach
of that
scope
exceeded
night
party
on the
conduct
officer exceeded
Ultimately,
invitation.
whether
implied
aby
determined
invitation “cannot be
scope
implied
and
formula,”
on the facts
must
“be based
fixed
but
instead
Thompson,
221 Cal.
People
circumstances
each case.”
(1990).3
Cal.Rptr.
App.3d
the officer
have been identified include "whether
3. Relevant factors that
house; (2)
(3)
secretly;
approached the
house
spied
acted
into
circumstances,
normal
“[U]nder
uninvited visitors
coming
speak
to a residence to
with an owner
resident are
expected
direct, obvious,
come
the residence’s most
prominent entryway, which in most cases is the front door.”
Trimble,
Also, to approach invitation the front door of a private residence is limited in scope persons to those who are on the property “legitimate for a social or business Cloutier, purpose.” (Me.1988). State v. 544 A.2d *19 In the context of officers, law enforcement officers who are located on the curtilage for purpose the of approaching the front door and questioning the residents of the house are deemed be See, to a pursuing “legitimate purpose.” e.g., Shaver, 793, 794, Va.App. 395, 30 at 520 S.E.2d at (noting 396 “investigators that intended to speak with the defendants” and that the investigators first “knocked on the front door of the answered”).4 residence but no one (4) normal, house; daylight; (5) used the most direct route to the resident; (6) attempted to talk vantage with the created an artificial Ross, point; discovery accidentally.” made the State v. 91 814, 1188, Wash.App. (Ct.App.1998). 959 P.2d 1190 Hammett, 1054, (9th Cir.2001) 4. See also v. United States 236 F.3d 1059 (“Law may upon curtilage enforcement officers encroach the of a home purpose asking questions occupants."); for the the United States v. James, (7th Cir.1994) (finding 40 police F.3d 862 that did not they violate the walkway, Fourth Amendment where used a which was home, part curtilage of the attempt the "[i]n to reach the lower residents”); Daoust, (1st floor United States v. F.2d Cir.1990) (noting "policeman may lawfully go person's a to home him”). to interview offi permit does the invitation Although implied to in order of a residence occupants the to seek out cers encompass of this invitation does the “investigate,” scope See, the premises. search of general the to conduct right United, (4th Bradshaw, F.2d e.g., States Cir.1974) legitimate must have (noting that officer premises “a search of such conducting than purpose other Pendleton, accused”); Rogers v. against the see also directed (4th Cir.2001); Montgomery Alvarez v. F.3d Cir.1998). (4th noted by As 147 F.3d County, Circuit, Fourth is, talk,” knock on a to right to “knock approach residence seek- door or otherwise
residence’s inhabitants, to make a right not the speak [is] to ing on reasonable general investigation curtilage based contrary principle A rule eviscerate would suspicion. is entitled the same Oliver and Dunn that as the home itself. protection of Fourth Amendment level legiti- at A officer exceeds the 249 F.3d 289. Rogers, “convert[ ] if he seeks to scope of an invitation implied mate any may approach limited license do what citizen this do— a license or owner—into speak house and inhabitant ” Thus, 294. if a law enforce- for ‘evidence.’ Id. at search officer, activity, strays illicit attempt in an to uncover ment has he “path” impliedly open public, from the that is result, and, as a scope of the invitation implied exceeded the the Fourth Amendment. violated if especially
Similarly, property night, late entering subterfuge, may scope exceed the by use accompanied court, As invitation. noted one predawn hours night intrusion late at or in Furtive *20 Indeed, ordinary that from visitors. expected not conduct it could be a cause premises, a of the by if observed resident daytime approaches, compared open As great for alarm. a of darkness create searches under cover surreptitious potentially tragic of response risk armed greater —with may police mistake the fearful residents who results —from intruders. officers for criminal
616 Cada, 478; State, 923 P.2d at v. 788, see also 347 Ark. Griffin (2002) (“ 582, 67 S.W.3d 587 private is no rule of or ‘[TJhere se, public conduct illegal which makes it or a per condemned person’s right privacy, invasion of the anyone of openly noon, peaceably, high steps at to walk knock up on the front door of any man’s castle with the honest intent of asking questions of the occupant thereof whether the question- salesman, er be a pollster, an officer the law.’” (internal omitted) added) quotations (emphasis (quoting Davis States, (9th 301, Cir.1964))); v. United 327 F.2d Brown v. State, 280, 392 So.2d 284 (Fla.Dist.Ct.App.1980) (finding that police violated expectation defendant’s reasonable of privacy when they entered defendant’s driveway without warrant at him); Cloutier, 1:45 a.m. and arrested at A.2d 1280 (noting that “the implied invitation extends only recognized access ” routes ... and day added)); to reasonable times (emphasis Myers, State v. 117 Wash.2d 815 P.2d (noting that whether a officer enters a premises during daylight hours is relevant determining whether the scope of an implied premises invitation enter has been exceeded).
Also, although law enforcement officers who “enter of the curtilage impliedly open” areas which are keep are “free to eyes open,” State Seagull, (1981), Wash.2d 632 P.2d an officer who imple ments an overly intrusive of investigation, means such as the devices, use or other binoculars sensory-enhancing may Cada, exceed scope implied invitation. See 923 P.2d (“The at 477 scope invitation to enter areas of provide may direct access the house ... particularly be exceeded where officers employ intrusive Cloutier, method of viewing.”); (holding 544 A.2d expectation the defendant had no reasonable in a alia, marijuana plant where, officer inter “detected the senses”). contraband means of his natural But State v. cf. Lee, (Utah (“[T]he 1981) P.2d a flashlight use of assist the night natural vision at does not make ‘observa ”). tion’ a ‘search.’ *21 circumstances, we
Here, totality of the considering the implied the scope the did not exceed conclude that Cox front door of approach the premises the invitation enter driveway, began the home. Cox entered the Robinsons’ and, residence, he the area reached toward the drive before with the drive- front walk intersects driveway the the where backyard. in the Robinsons’ drinking saw minors he the way, any no further than member gone At had point, that Cox the to contact attempt have gone the would public from the stray “path” He did not property. owners of the (i.e., the door from the road to the front leading directly sidewalk), attempt nor did he driveway and the front the of an general premises through search of use conduct investigation. means of overly intrusive Also, although the of the Robin- Cox entered evening, entry late the p.m., sons’ home at 11:00 hour of this necessarily implied of the invitation. scope did not exceed circumstances, the mere fact that the intrusion “Under some night may suggesting made late at be a factor that Morris, unduly conduct was intrusive.” State Here, (Ct.App.1998). Idaho 961 P.2d 657 n. 3 however, lights along the Robinsons’ front sidewalk Also, on the front still turned on. lights porch were driveway and on the multiple parked along cars were to a public give road in front of the house. These factors rise to approach invitation implied reasonable inference yet rescinded the front door of residence had been Also, up with night.5 we note that Cox drove headlights way any turned on—the same member his general public presumably approached would have or the “cover of dark using subterfuge house —rather than Cada, attempt disguise approach. Compare in an his ness” (officers scope 923 P.2d at exceeded invitation in a intrusion ... under they engaged where “clandestine supported by 5. the fact that various members This inference had, fact, approached party and “crashed” the residence night question. Clark, cover of darkness in the of night”), dead with 859 P.2d (officers at 346 did not scope exceed of implied invitation where the officers went to the fi-ont door of the residence at 10:00 p.m. investigate neighbor’s complaint about a loud party).6 circumstances, Considering the totality of the we *22 that, conclude on the night question, the implied invitation to enter the premises Robinsons’ still open was even at this hour, late and did Cox not exceed the scope implied of this invitation when he drove up driveway. the Robinsons’
Moreover, Cox entered
of
curtilage
the
the Robin-
sons’
purpose
home with the
of investigating
of under
reports
age drinking at the
investigation
residence.
an
“[T]he
of
anonymous tip
clearly
is
legitimate police activity
long
so
as
the investigation does
applicable
not violate
constitutional
State,
provisions.”
(Ind.Ct.
433,
Divello v.
782 N.E.2d
437-38
App.2003).
premises
Because Cox entered the
to “investi
gate,” he had a legitimate
for
purpose
being present on the
Robinsons’
at
time
the
he viewed the illicit activity.
Also,
accept
we do not
argument
the Robinsons’
that
subjective
Cox’s
intent indicates that the entry exceeded the
scope
the implied
of
Generally,
invitation.
the determination
of
whether
Fourth Amendment violation has
occurred
“
based on ‘an objective
the
...
assessment of
officer’s actions
and not on the officer’s state of mind at
time
the
the chal
”
Commonwealth,
lenged action was taken.’
v.
Limonja
(en
banc)
Va.App.
(quot
383 S.E.2d
Macon,
ing
463, 470-71,
v.
Maryland
472 U.S.
105 S.Ct.
2782-83,
(1985)).
Without because, cases, they distinguishable note that are these we talk,” here, nor had yet performed a “knock and Cox had beyond “path” any he invaded area Rather, illicit he activity, front when viewed the door. Cox driveway. driving up had not finished Under yet *23 case, then, intru- of this there is no additional circumstances into inquiry into necessitate an sion the that would (hold- at 302 McIntyre, intent. 860 P.2d subjective Cox’s Cf. on investiga- trial court’s reliance the officers’ ing “[t]he “ ‘[cjriminal investigation purpose misplaced” tive because taking as is or mail legitimate purpose is as a societal census ” 490) (second Corbett, P.2d at alteration delivery’ (quoting in original)). circumstances, the we therefore
Considering totality the of to an invitation implied conclude that the Robinsons extended driveway night party. their the public the to enter that, curtilage with Cox entered the We further conclude when underage of allegations of the purpose “investigating” of invitation scope implied not this drinking, he did exceed because, activity, illicit in he point at the time when viewed ordinary public member of gone he had no further than an occupants of the in an to contact the gone attempt would have an the Robinsons extended Accordingly, because property. because Cox did property, and implied invitation enter invitation, not scope exceed the of that the Robinsons had no of in expectation privacy reasonable driveway area bush, by the implicated Cox’s actions neither nor violated the Fourth Amendment.
C. Because the Fourth Amendment Does Not
Apply, The Evidence Is Admissible The Robinsons submit that the trial court in erred its legal conclusion that Cox’s observations were admissible pursuant view plain exception to the warrant requirem However, ent.7 we need not reach the issue whether the exception applies plain presence view because Cox’s driveway Robinsons’ did not implicate the Fourth Amendment. Rather, because the illicit conduct was visible clearly from area in which the Robinsons had no expectation reasonable privacy, plain view doctrine applies, and observations are admissible. is,
That
because the Robinsons had extended an implied
invitation to the
public
use the
access
front
home,
door of
they
their
had
expectation
no reasonable
(“There
Clark,
privacy
that area. See
III. CONCLUSION that, case, under the facts of this the area of We hold driveway part next to the bush is hold, however, that the area Robinsons’ home. further We because the was not the Fourth Amendment protected in that expectation Robinsons had no reasonable Rather, curtilage. area of the because the Robinsons extend- to enter the ed an invitation to members of the door, driveway walkway to the front portion before the Fourth presence implicate Cox’s on the did not and, therefore, illegal not constitute an Amendment did implicate search. Because Cox’s observations did not Amendment, denied the Robin- properly Fourth the trial court *25 sons’ motions to suppress. Accordingly, we affirm the convic- tions.
Affirmed.
ANNUNZIATA, Judge, dissenting.
I concur in majority’s finding that Officer Cox entered curtilage the Robinson residence and that he conducted challenged search from that vantage point. I write sepa- however, rately, I because do not that agree the search can be found constitutionally proper on the that theory the Robinsons had impliedly invited Officer Cox’s entry, thereby extinguish- ing any reasonable expectation privacy they had curtilage. Cox’s sole and undisputed purpose entering the curtilage was search for criminal activity. Consistent with Constitution, the guarantees of the United States it cannot be said that citizens impliedly extend an invitation to the curtilage enter their home or to conduct a search. On that I ground, would hold that rights Cox violated the Robinsons’ under the Fourth Amendment.
“Curtilage” “space is defined as the necessary and conve- nient, habitually family used for purposes carrying and the employment; of domestic the yard, garden or field is which near to and used connection with the dwelling.” Wellford Commonwealth, 297, 302, 227 Va. 315 S.E.2d (internal omitted). citations
The doctrine of
grounded
the peculiarly
strong
concepts
intimacy, personal autonomy and privacy
associated with the home. The home is
fundamentally
sanctuary, where personal concepts
family
of self and
are
forged, where
are
relationships
people
nurtured and where
normally
express
feel free to
themselves in intimate ways.
The potent
individual
interests that inhere in living
expand
within a home
into
the areas
enclose the home
as well. The backyard
immediately surrounding
and area
really
the home are
extensions of the
itself.
dwelling
This
is not true
in a
simply
mechanical sense because the areas
are
It
geographically proximate.
is true because people
many
expectations
actual and reasonable
have both
outside the
of home life often occur
private experiences
interactions,
intimate
daily routines and
house. Personal
There
place.
revolve around the entire home
relationships
reasons,
then, for
Fourth Amend-
compelling
applying
are
dwelling
to the entire
area.
protection
ment
*26
States,
(6th
307,
v.
Dow Chemical Co. United
749 F.2d
314
Cir.1984),
227,
1819,
aff'd, 476 U.S.
106
Determining
Commonwealth,
v.
27
specific facts of each case.
Jefferson
(1998).
1, 16,
In determining
497 S.E.2d
481
Va.App.
curtilage, “particular
the area in
constitutes
question
whether
four factors is
following
helpful:
reference”
to the
proximity
curtilage
of the area claimed
be
home,
an enclosure
whether
the area is included within
home,
nature of the uses to which the
surrounding
put,
steps
by
protect
area is
and the
taken
the resident
by.
by people passing
area from observation
Dunn,
v.
294, 301, 107
1134, 1139,
United States
480
U.S.
S.Ct.
Jefferson,
see
(1987);
Although by gate the area in was not enclosed question fence, driveway I concur that the from place the Robinsons’ gathered challenged which Cox evidence was within the located in to the house curtilage.8 proximity Cox was close bush, large photographic that a 8. The testimonial and evidence reveal street, immediately when viewed from the stands in front of the walk- driveway. way front door that The bush and intersects walkway garage. Cox testified are but a few feet in front of driveway repeatedly this in the when he first that he was next to bush juveniles scrutiny saw the on the other side of the tree. Closer of Cox’s that, driveway, testimony driving into the he reveals after his vehicle moving driveway up past continued down the to and the bush that leading garage to the front door shielded the doors and the sidewalk continuing public According testimony, his from view. to his Cox was investigation the nature of his observations and into the as implications activity of criminal became clearer. following exchange place: point testimony, took At one in his an area hidden from public by view an island of dense Dunn, growth just tree and a large beyond. bush See 1140; Commonwealth, U.S. at at S.Ct. Shaver cf. 789, 797, Va.App. (holding S.E.2d defendants had no reasonable expectation area that was not restricted from view means of a fence, barrier). addition, shrubbery, or other In the area was cars, used for unloading groceries washing activities that are home-related and that evidence the “nature of the uses to Dunn, which the area put.” U.S. S.Ct. at Q: further, you proceeded up And as further and thing you persons appeared you first [sic] saw was who to be young. Yes, A: sir. Q: thing you activity. Strike that. The first saw some A: Correct. Q: you kept moving. stopped. And You never A: That’s correct. Q: thing you couple people The second appeared saw was a you underage; okay? to be Yes, A: sir. *27 Q: time, you something And at or you about the same saw in their — long glass glass saw necked bottles in their hand. —white Clear; yes, A: sir. Q: you And then were some distance— Still, yes. A: Q: you kept going? And on Yes, A: sir. Q: because, you kept going although they appeared And to be beer, young might your experience you you and it have been told that they they you. wouldn’t know for sure until ran when saw necessarily; they they going A: Not when didn’t know what were —I them, was, identify age to do. I wanted to to find out what their and to see if it was alcohol. Q: you they And weren’t able to do that from a distance. But when was, label; dropped you right? whatever it could see the is that A: That’s correct. Q: that, mind, they your telling. And scattered. And in was Yes, A: sir. Q: that, that, maybe. probable. Before it After it was Yes, A: sir. exchange This demonstrates that Cox conducted a search into the vehicle, driveway continuing with his forward until he reached the bush part driveway, garage that door, hides and the sidewalk to front proceeding alleged juveniles dropped until the the beer and
625
Into
1140;
Driving
Unreasonableness:
Rownaghi,
see Vanessa
Expectations
and Reasonable
Curtilage,
Driveway,
The
1165,
L.
1181-82
Pol’y &
11 Am.
Gender Soc.
U.J.
Privacy,
of the Dunn
(2003)
in
to application
addition
(explaining
what
factors,
determining
inquiry
that remains
essential
protection
Amendment
“whether
areas deserve Fourth
sanctity
activity
‘intimate
associated with
area harbors
” (quoting Boyd
of life’
v. United
privacies
man’s home and the
524, 532,
States,
616, 630,
However, the curti- and search from presence upon Cox’s concludes that the Robin- notwithstanding, majority lage expectation privacy sons did not have a reasonable approach had an invitation to implied area because Cox I disagree, talk to its not with occupants.9 house and conclusion, but with its general principle underlying appli- cability here under these facts and circumstances. invitation, Shaver, theory implied In we addressed “ life, the course of urban we have come to
stating ‘[i]n upon various members of the to enter such a expect public salesmen, driveway, e.g., newspaper boys, postmen, brush Girl sellers, motorists, neighbors, cookie Scout distressed ” at Va.App. (quoting Mends.’ 520 S.E.2d State (1973)). Corbett, Or.App. 516 P.2d The theory entry invitation into the implied permitting expressly a home been discussed and either applied, has See, jurisdictions. in case law from several other impliedly, S., Cal.Rptr. In re e.g., Gregory Cal.App.3d minimal, if (noting any, expecta- that resident has implicitly tion of area where has been any goes beyond scattered. Such conduct invitation that approach citizen to enter the the front door. has *28 majority police 9. The reasons that the had an invitation to because, gain approach access to the Robinsons’ front door in order door, visitor, they, any curtilage like would have to enter the and believed to be cross the area from which Cox observed individuals he Therefore, drinking according majority, juveniles to the no beer. Fourth Amendment violation occurred. 626
invited);
Cada,
224,
State v.
129
469,
Idaho
923 P.2d
477
(Ct.App.1996) (noting that “the direct access routes to the
house, including
areas,
parking
driveways
pathways
and
entry, are
invited,
areas to which the public
impliedly
is
and
police
officers
their
restricting
activity to such areas are
permitted the same intrusion and the same level of observa-
tion as would be expected from a ‘reasonably respectful citi-
zen’”);
Cloutier,
(Me.1988)
State v.
1277,
544 A.2d
1280
(noting that “the owner impliedly invites to intrude upon his or
her property only those
legitimate
with a
social or business
purpose”);
Kozlowski,
People
761,
69 N.Y.2d
513 N.Y.S.2d
101,
505 N.E.2d
612
that,
(holding
“[a]bsent evi-
dence of intent
to exclude
public,
the entryway to a
person’s house offers implied permission
approach
door”).
knock on the
Therefore,
front
an officer of the law does
if,
violate the Fourth Amendment
in entering private
property,
the officer
nothing
does
more than what a reason-
ably respectful citizen would do.
Dyreson,
See State v.
703, 17
(2001);
Wash.App.
So,
P.3d
Mei Fung
Annota
tion, Search and Seizure: Reasonable Expectation
Privacy
(1998
in Driveways,
§
It follows where the evidence establishes police have curtilage entered the of a home without a warrant for the purpose of speaking home, to an occupant entry See, generally Shaver, upheld. e.g., 793-94, Va.App. S.E.2d at 395 (noting that “investigators intended speak defendants”); with the Alvarez v. Montgomery County, 147 (4th Cir.1998) F.3d (upholding entry officers’ into the “ curtilage they where had a ‘legitimate reason’ entering the Alvarezes’ property ‘unconnected with a search of such ” premises’ Bradshaw, (quoting United States v. 490 F.2d (4th Cir.1974))); James, United States v. 40 F.3d (7th Cir.1994) 850, (finding that police did not violate the Fourth they Amendment where a walkway, used which was part home, attempt “[i]n reach residents”); Daoust, the lower floor United States v. 916 F.2d (1st Cir.1990) (finding did not violate the Fourth Amendment where they observed a firearm through *29 the defendant to contact attempting while kitchen window to a lawfully go may “policeman that a holding and homeowner Kozlowski, him”); 513 N.Y.S.2d interview home to person’s up officer walked the “the (noting that N.E.2d at that h]e porch [and an open-ended and onto driveway door”); the front knock on in order to the screen door opened State, Ark. 67 S.W.3d v. generally see Griffin “ or private is no rule that ‘there (stating se, condemned invasion or a illegal per makes it conduct which peace- and anyone openly right privacy, person’s of the knock on the front noon, up steps to walk ably, high asking intent of the honest man’s castle with any door of be a questioner thereof whether occupant questions ” (some internal salesman, the law5 or an officer of pollster, States, omitted) F.2d Davis v. United (quoting quotations Cir.1964))). (9th 301, 303 said, that comes within manifestly not one
That this case made no invitation decisions. Cox implied the umbrella of knock on the front door approach to attempt whatsoever nor did he occupants, speak the Robinsons’ home below, Indeed, his as discussed any such intent.10 testify to conduct a search. that he was there testimony established Thus, majority which the theory implied upon invitation proposi- a theoretical just remains that: relies for its rationale he, fact, done, did. not what could have but tion of what Cox excep- invitation that invoke the judicial The decisions that a search be requirement Amendment’s tion to the Fourth not turn on such to a warrant do pursuant conducted driveway the Robinsons’ with repeatedly if he entered 10. When asked house, following exchange speak occupant of the to an the intent ensued: Cox, your walk to the Q: was not intent to isn’t it true that it Officer it, driveway up you proceeded as front door and knock night? driveway proba- up was to establish My drove A: intent when I cause, investigate the scene further. ble that, Furthermore, with his intent evidence establishes consistent scene,” directly up until he "investigate Cox drove expected to find: what he point where he could observe came to supra note 8. juveniles drinking beer. See discussion in the act of hypothetical abstract or application principles, wholly unm- oored from the facts of the case. Absent an examination of showing evidence the purpose underlying intru- sion into constitutionally court protected property, a cannot determine whether the entry complied with constitutional Pendleton, As mandates. noted Rogers 249 F.3d (4th Cir.2001), police have no right officers enter upon *30 make an curtilage investigation to based on suspi- reasonable Instead, right cion. the police officers have is talk,” is, the to right “knock and knock to on a door approach residence’s or otherwise the residence seek- inhabitants, ing to to the speak not the to right make a general investigation in curtilage the based on reasonable A suspicion. contrary would rule eviscerate the principle of Oliver Dunn curtilage and that the to entitled the same level of Fourth protection Amendment as the home itself. Id.11 Fourth The Circuit underscored the same principle Bradshaw, 490 F.2d at noting, after all considering the bearing evidence question, the that an incursion into the of a rural curtilage speak home to to the occupants lawful when “unconnected with a premises search such directed added).12 against accused.” Id. at 1104 (emphasis the Rogers, 11. the In officer the encountered defendant homeowner in the yard front his house. at 249 F.3d 284. The officer testified that after defendant, leave, speaking with who asked him to officer speak wanted to with "who was someone sober.” Id. The officer then informed the defendant that intended to a he conduct search of the premises. The Id. court found these to show facts sufficient that the officer's intention was to for evidence than search rather to contact Thus, any another homeowner. Id. at 287-90. intrusion into the curtilage protections. violated the Fourth Amendment’s Id. Bradshaw, subsequently In the court held that officer exceeded 12. when, "legitimate legally reason” visit for his without sufficient justification, he searched a vehicle near the Id. at residence. 1101. The that the intent a court found officer’s to conduct search was speak evidenced the fact that route to while en to the back door with house, occupant strayed path peer the officer from his into nearby parked the crack the closed of a vehicle. Id. between doors This longer clear detour made that the officer’s intent was no to seek to speak with the defendant. Id. distinguishing importance cases demonstrate These to “knock implied invitation right by officer's police between a is, door or otherwise talk,” knock on residence’s seeking speak invitation by implied residence approach inhabitants, attempt make police officer’s reasonable based on investigation curtilage in the general Rogers distinction, as court Failing to make suspicion. li- this limited warned, unconstitutionally “convert[] would house and approach the may citizen any cense to do what do— search for a license to inhabitant or owner —into speak to the ” Rogers, F.3d at 294. ‘evidence.’ is thus a curtilage entering An purpose officer’s intrusion on determining whether critical factor owner’s property falls within private property Alvarez, See, 289; e.g., id. at F.3d public. invitation to Bradshaw, Smith see also Estate 358; 1100; F.2d at Cir.2003) (“Where Marasco, (3d officers 318 F.3d any search unconnected objective, pursuing are a lawful activity, criminal and instrumentalities fruits receiving an answer at the entry into the after not *31 curtilage may into entry front be reasonable as the might door attempting to contact the provide only practicable way the of Hammett, v. United States added)); resident____’’(emphasis (“Law (9th Cir.2001) 1054, officers 1059 enforcement 236 F.3d purpose the of a home may upon encroach the for of added)); asking the questions occupants.” (emphasis of Daoust, (“A may go a policeman lawfully F.2d to 916 at 758 added)); Lo- home to interview him.” (emphasis person’s cf. York, 2319, 2326, New Ji Sales v. 442 U.S. S.Ct. (1979) that store (rejecting argument L.Ed.2d 920 the state’s in the legitimate expectation no of items owners had no for the notion in their store “there is basis for sale because enter, that, it a the retail store invites because not that do con- to wholesale searches and seizures consents Lew- generally see guarantees”); form to Fourth Amendment States, 206, 211, 427, 17 is v. United 385 U.S. S.Ct. “in the agents, that undercover (explaining L.Ed.2d 312 an invitation person, may accept as a private same manner the very may do business upon premises and enter the for purposes contemplated by occupant” that entry but when gained by is agent invitation “an is [not] authorized to conduct general search incriminating (emphasis materials” add- ed)).
The majority dismisses the of on import these cases ground that Fourth Amendment inquiries are' typically based “ objective on ‘an assessment of the officer’s actions ... and on officer’s state mind the time the challenged ” Commonwealth, Limonja action was taken.’ 8 Va.App. 532, 538, (1989) (en banc) 383 S.E.2d (quoting Mary- Macon, land v. 463, 470-71, 2778, 2783, 472 U.S. 105 S.Ct. (1985)). sound, L.Ed.2d 370 While the is it principle has no applicability involving cases homeowner’s invita- tion to enter constitutionally protected property to contact the and, occupants the home it appears, principle has not Indeed, been applied in such very colloquialism cases. viz., talk,” used to refer to the exception, “knock and signifies subjective as purpose analytical the effective principle. Entry into the curtilage without a warrant to search is wholly incompatible with Fourth jurisprudence,13 Amendment and majority only support 13. The cites two cases in itsof contention that an purpose police entry underlying examination of the curtilage officer’s onto the Marasco, private property improper: 318 F.3d Alvarez, reading 354. F.3d A close of these cases establishes that supports majority's contrary, neither conclusions. To both establishing decisions are rooted in an examination the evidence police subjective entering curtilage. officer’s intent in police approached The court in Marasco found where the officers door, and knocked telephoned defendant’s front and then his him, attempt residence from the front in an door to contact it was clear purpose speak occupants response that the officers' was to a Marasco, complaint police Noting had received. F.3d at 520. purpose, the lawfulness er, Third Circuit then addressed wheth- door, having received no answer to the knock at it the front proceed backyard reasonable for the house *32 garage. reversing grant enter the In summary the trial court’s of judgment, the questions Third Circuit determined that "there remain of fact to curtilage as whether the officers' into intrusion the was reason- light purpose making entry able in their asserted in into Smith’s of added). property (emphasis not which was to make a search." Id. at 521 lawful, that, emphasized police objective The court to be the must be of aegis the an of such a result under judicial validation suggest- rationale, in the abstract as applied implied invitation and of Oliver principle the majority, “eviscerate[s] ed the by of Fourth is to the same level curtilage the entitled Dunn that Rogers, F.3d as the home itself.” protection Amendment at 289. that Cox case, no evidence only is there
In the instant go in to their front order curtilage in the Robinsons’ house, testimony of Cox’s speak occupants door to the the any the search for fruits instrumentalities "unconnected activity.” Id. 520. criminal Alvarez, emphasized Similarly, the Circuit that the officers in Fourth "simply notify the or the property homeowner entered the Alvarezes’ no drive party’s complaint and to ask that one while host about the Alvarez, added). (emphasis In 358-59 reach- 147 F.3d at intoxicated.” cited, decision, standing approval, for ing court with other cases its the officer enters the curti- proposition purpose the for which an the that persists paramount Id. consideration lage is a consideration. That propriety of the intrusion must initial whether court determine by implied or it must determine the lawfulness invitation whether analysis beyond The is the front door of the house. latter intrusions beyond predicated on the of the intrusions likewise reasonableness viz, door, original light purpose, in front examined officer’s occupants. interview the short, curtilage proposition entry cases stand into In both part of independent any purpose on the be from intent or must police general for evidence of criminal conduct. to conduct search curtilage purpose into is uncon- Logically, of an intrusion whether necessarily an examination of nected to search for evidence involves intent, testimony by the subjective as established the officer’s (demon- police supra presented. conduct See notes 11-12 evidence purpose into strating that determine the intrusion courts intent). examining subjective by evidence of officers’ subjective purpose, or theory that an officer’s Consistent with intent, assessing is in reasonableness determinative factor Appeals an officer requirement applied Circuit Courts of other "good moving contact an before from the front door to act in faith” See, Hammett, ("[A F.3d at occupant e.g., of a house. faith, away may, door when good move from front in officer] Raines, seeking occupants.”); United States F.3d to contact (8th Cir.2001) (holding did not interfere with that sheriff he, faith, unimpeded good "privacy went interest when defendant’s occupants”). faith” is "Good home] contact [rear defined, alia, consisting honesty ... as of mind "[a] inter state (8th ed.2004). Dictionary purpose.” Black’s belief or Law *33 makes clear that he entered the Robinsons’ in property order crime, viz., to find evidence of surprise juveniles in the act incriminating beer drinking and confirm his suspicion hosting that the Robinsons were an underage drinking party.14 case, Under the facts of this it cannot be said that Cox’s purpose Alvarez, was “unconnected awith search.” See 358; Bradshaw, F.3d at 490 F.2d I at 1100. would therefore hold that into entry curtilage Cox’s violated the Robinsons’ expectation reasonable of privacy and their rights under the Fourth Amendment the United States Constitution.
I would further hold that Cox’s of criminal observations activity from his vantage point curtilage were pursuant admissible because, the plain view doctrine as above, discussed Cox’s into entry curtilage of the Robin- Commonwealth, sons’ home was not lawful. See Hamlin 494, 502, Va.App. 534 S.E.2d (finding that order for a search plain to come within the view exception, two “ ‘(a) requirements must be met: lawfully the officer must be item, (b) in a position to and seize the view it be [and] must immediately apparent to the officer that the item is evidence ” crime, contraband, aof subject or otherwise to seizure’ (citations omitted)), banc, Va.App. en 375 545 S.E.2d aff'd (2001). lawfully position Cox was not view the Therefore, minors consuming alcohol. See id. the trial court’s admission of juveniles drinking of Cox’s observations beer, he which made as a result of illegal entry, his cannot be affirmed on the ground plain evidence was in view. stated,
For the reasons I respectfully dissent. Thus, requires clearly recognizes inquiry case law an into subjective purpose being officer’s for on the of a home. "planned property investigate 14. Cox testified that he to enter the addition, allegations underage consumption In alcohol.” when "looking scattering people asked if he a reaction of to confirm suspicion underage drinking party,” respond- [his] had an Cox [he] affirmatively. ed