Robinson v. Com.
| Decision Date | 12 January 2007 |
| Docket Number | Record No. 060426.,Record No. 060417. |
| Citation | 639 S.E.2d 217 |
| Parties | Elisa K. ROBINSON v. COMMONWEALTH of Virginia George F. Robinson v. Commonwealth of Virginia. |
| Court | Virginia Supreme Court |
Francis McQ. Lawrence; Jonathan T. Wren, Charlottesville (Robert E. Byrne, Jr.; St. John, Bowling & Lawrence; Martin & Raynor, on briefs), for appellants.
Donald E. Jeffrey, III, Assistant Attorney General (Robert F. McDonnell, Attorney General, Karri B. Atwood, Assistant Attorney General, on briefs), for appellee.
Amicus Curiae: The Virginia Trial Lawyers Association (David B. Hargett; Hargett & Watson, on brief), in support of appellant George F. Robinson.
Present: All the Justices.
OPINION BY Justice ELIZABETH B. LACY.
In these consolidated appeals, we consider whether a warrantless search and seizure within the curtilage of a private residence violated the Fourth Amendment either because the investigating officer (1) did not act within the scope of the implied consent for uninvited individuals, including law enforcement, to enter the curtilage of the residence in order to contact the occupants, or (2) did not have probable cause and exigent circumstances under the facts presented.
Our recitation of the facts is based both on a Joint Stipulation (Stipulation) executed by the attorney for the Commonwealth, Elisa K. Robinson (Elisa) and George F. Robinson (George), and on the testimony of Corporal Scott Cox of the Albemarle County Police Department (Officer Cox). On appellate review, we are bound by the familiar principle that "we must consider the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to the Commonwealth, the prevailing party below." Rose v. Commonwealth, 270 Va. 3, 6, 613 S.E.2d 454, 455 (2005).
According to the Stipulation, on August 16, 2002, Elisa and George hosted a party for Elisa's son Ryan to celebrate his sixteenth birthday. Elisa purchased food and beverages for the party in the amount of $1,013.97, including $350.48 for alcoholic beverages. She also purchased "five [large] trashcans for the purpose of icing down" the beverages.
Prior to the party, George and Elisa spoke with the parents of some of the invited juveniles. Elisa told these parents that she intended to collect the juveniles' car keys and that she would "move [her] sports utility vehicle across the driveway once all the guests had arrived to prevent the juveniles from leaving" the party. Elisa did not tell any of the parents she intended to serve alcoholic beverages. Further, during the party, one juvenile overheard George stating to someone on the telephone "that there was no alcohol at the party."
Approximately thirty juveniles attended the party. The trash cans containing the alcoholic beverages were placed in the backyard behind the fence "so that they would not be visible to any parent who brought their children to the party." Elisa and George neither encouraged the juveniles to consume alcoholic beverages nor discouraged them from doing so. George, however, instructed several of the juveniles not to drink near the pool "because he did not want [any] broken glass in [the] pool."
Officer Cox testified that on the night of the party, the Albemarle County Police Department received three telephone calls reporting the possibility of juveniles consuming alcoholic beverages at a party at the Robinsons' home. In response to these calls, Officer Cox drove to the Robinson home at around 11:00 p.m. in a marked police vehicle.
As Officer Cox approached the property, he observed approximately 10 to 20 vehicles parked along the adjacent public road. He also saw "two or three" vehicles parked on the left side of the driveway. Based on these observations, Officer Cox contacted other Albemarle County police officers waiting in the vicinity and instructed them to "start heading this way" because it "appears that there's a party."
When Officer Cox turned his vehicle into the driveway, he could see the house, the front door and porch, and the front yard, but he could not see the end of the driveway, the garage area, or the backyard. As Cox proceeded up the driveway, he observed several additional vehicles parked near the right side of the driveway. He was also able to see, in front of the house, a "small circular portion of the driveway" that encircled a stand of trees. Instead of parking in the circular portion of the driveway, Officer Cox drove his vehicle along the main portion of the driveway, which continued past the trees and led to the garage area on the right side of the house. A path leading to the front door intersected the driveway beyond the stand of trees but a few feet before the garage area. A large bush was located adjacent to the driveway immediately in front of this path.
Before Officer Cox reached the point where the path intersected the driveway, he saw two individuals holding clear beer bottles. Both were standing approximately seven to ten yards "into the back yard" and appeared to be younger than 21 years of age. When the individuals saw Officer Cox's vehicle they yelled "cops," dropped their beer bottles, and ran along a fence line toward the woods behind the house.
Officer Cox then pulled his vehicle into the garage area and parked on the concrete pad. From there, Officer Cox saw a patio table covered with beer bottles as well as "[b]eer bottles spread throughout the [back]yard." Officer Cox stepped out of his vehicle, "yelled for [people] to stop [running]," and "got on the radio, and . . . told everybody that was arriving on the scene that the kids were running east, past the house, into the woods." He then went into the backyard to locate "the juvenile hosting the party."
Officer Cox testified that he wanted to locate the host to "find out what was going on [and] find out who the people were that were running away." He was "worried for their safety" and "wanted to find out who they were, so [the police] could contact parents." In the backyard, Officer Cox spoke with one of the juveniles and, "based on that conversation," approached the back of the house. Through the sliding glass door at the back of the house, Officer Cox saw George and Elisa sitting at a kitchen table.
According to the Stipulation, when the other police officers arrived at the Robinsons' home, they found four trash cans in the backyard filled with alcoholic beverages, empty alcoholic beverage bottles in the yard, and half-empty bottles on the table and on the rear deck. Despite the Robinsons' professed intentions to collect the car keys of all the party guests and have them remain overnight, the Robinsons had only collected five or six sets of keys. They also had not blocked the driveway in order to prevent guests from leaving. While the police were conducting their investigation on the premises, Elisa told several of the juveniles to "swallow vinegar in order to fool the Alcosensor." Elisa also instructed one girl to "tell her parents that a boy had spilled alcohol on her" to explain why she "tested positive" on the Alcosensor. Nine of the juveniles at the Robinsons' residence had "measurable levels" of alcohol in their systems when the police arrived.
The Robinsons were arrested and each was charged with 16 counts of contributing to the delinquency of a minor under Code § 18.2-371. Both Elisa and George filed motions to suppress the evidence obtained from Officer Cox's entry onto their property, arguing that Officer Cox's conduct violated the Fourth Amendment because he was not in a place that he was legally entitled to be when he witnessed the illegal activity.
In a letter opinion, the trial court denied the Robinsons' motions to suppress, finding as matters of fact that Officer Cox "planned to enter the property to investigate the allegations of underage consumption of alcohol," and that he saw the juveniles with beer "[b]efore he reached the point where the front walkway to the front door intersected with the driveway." After finding that the driveway was not part of the curtilage of the Robinsons' home, and therefore did not implicate the Fourth Amendment, the trial court determined that Officer Cox's presence on the driveway was lawful because he had the right to approach a home and knock on the front door to speak to an occupant. The trial court also found that Officer Cox's warrantless entry into the backyard was permissible because he "had the requisite probable cause, which requires that an officer's knowledge of the facts and circumstances are sufficient to justify a reasonable person to think an offense is being committed." The trial court denied the Robinsons' joint motion for reconsideration.
The trial court later granted the Commonwealth's motion to terminate by nolle prosequi seven of the charges against each of the Robinsons. Although the Robinsons stipulated that the evidence was sufficient to sustain convictions on the nine remaining charges against each of them, they pleaded not guilty to the charges, thereby preserving their position that the evidence was illegally obtained and should have been suppressed. The trial court found both the Robinsons guilty and sentenced each of them to consecutive terms of six months' imprisonment, with three months suspended, on each charge.
The Robinsons appealed their convictions to the Court of Appeals, which consolidated the appeals and affirmed the convictions in a decision by a three-judge panel. Robinson v. Commonwealth, 45 Va.App. 592, 622, 612 S.E.2d 751, 765 (2005). The Robinsons later sought and were granted a rehearing en banc. Robinson v. Commonwealth, 46 Va. App. 23, 24, 614 S.E.2d 667, 667 (2005).
Sitting en banc, the Court of Appeals held that the Robinsons had impliedly consented to have the public, including police officers, "enter the driveway and front sidewalk" of their property, and that Officer Cox did not exceed the scope of this consent either at the point he observed...
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