Com. v. Ealy

• Decision Date: 01 July 1991
• Docket Number: No. 2006-90-3,2006-90-3
• Citation: 12 Va.App. 744,407 S.E.2d 681
• Parties: COMMONWEALTH of Virginia v. Samuel Steven EALY. Record
• Court: Virginia Court of Appeals

Page 681

407 S.E.2d 681

12 Va.App. 744

COMMONWEALTH of Virginia v. Samuel Steven EALY.

Record No. 2006-90-3.

Court of Appeals of Virginia.

July 1, 1991.

H. Elizabeth Shaffer, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellant.

Thomas R. Scott, Jr. (Russell M. Large, Street, Street, Street, Scott & Bowman, on brief), Grundy, for appellee.

Present: KOONTZ, C.J., and DUFF and WILLIS, JJ.

KOONTZ, Chief Judge.

The Commonwealth challenges the circuit court's decision to suppress evidence obtained through the police's April 17, 1989 searches of the garage owned by Allene Burnopp, Samuel (Sam) Steven Ealy's mother, in relation to the April 16, 1989 murders of Robert Davis, Una Mae Davis and Robert Hopewell, Jr. Specifically, the Commonwealth contends: (1) the initial search of the garage was legal; (2) Mrs. Burnopp's consent to search the garage was voluntary; (3) Ealy's consent to search the garage and his car was voluntary; and (4) those consents purged any illegal taint created by the initial warrantless search of the garage. Ealy urges us to uphold the trial court's decision, but also argues the trial court erred when it found his consent to search was voluntary. We find the trial court properly suppressed the evidence obtained as a result of the searches of the garage.

On review, we consider the facts in the light most favorable to the prevailing party below, granting to it all reasonable inferences fairly deducible therefrom. See, e.g., Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987). For our purposes here, Ealy was the prevailing party below, except with regard to the trial court's finding that his consent to search the garage was voluntary.

During the morning of April 17, 1989, Sheriff Osborne and Deputy Howington of the Tazewell County Sheriff's Department began investigating the April 16, 1989 murder of Robert Davis, Una Mae Davis and Robert Hopewell, Jr. At the murder scene, the officers were able to ascertain that a light blue vehicle had driven through a pool of one of the victims' blood and scraped against a wall, leaving paint scrapings. The officers, thinking that perhaps the damaged car may have been taken to John Mark Ealy, a local mechanic, for repairs, drove to the property located at 63 Water Street in Pocahontas, Virginia, which is where he had a garage. The property is owned by Ealy's mother, Allene Burnopp, and is where she lived with her children, Sam Ealy, Debbie Ealy, and Brian Burnopp. A detached garage is located approximately three feet from the right side of the house and approximately twenty feet from the public road in front of the property. The garage has two front doors, a large main door with windows and a center handle that locks with a key, and to the left a small windowless side door secured by a lock and hasp. The interior of the garage is open space without partitions.

Though Mrs. Burnopp stored some personal items in the garage, it was mainly used by her sons, Sam Ealy, John Mark Ealy, and Brian Burnopp. The three sons shared the combination to the lock on the side door, which remained locked when they were not present. In addition to storing his own personal items, Sam, along with his brother John Mark, occasionally used the garage to perform automobile repairs and welding jobs for friends. When doing such work, the garage lights would be on and the side door would be open. When friends were looking for either Sam or John Mark, they would commonly look through the main garage door windows, honk their car horns, or knock on the small door and call out one of the brothers' names. Nonetheless, the garage was considered private, and John Mark locked it and turned off its lights the evening of April 16, 1989.

When officers Osborne and Howington arrived at Mrs. Burnopp's property, sometime between 9:00 and 9:30 a.m. on April 17, Mrs. Burnopp and Debbie Ealy were the only people at the house. Mrs. Burnopp observed the officers park in front of the property, exit their car, and walk toward the garage. Out of Mrs. Burnopp's sight and without knocking or calling out for anyone, the officers managed to enter the garage through the side door. Once inside the garage, the officers saw a light blue car to their right. Upon inspection, the officers saw the vehicle was damaged and appeared to be stained with blood. After checking the vehicle's license number, Sheriff Osborne said to Deputy Howington, "[H]ey, we better get out of here." The officers then left the garage and went to the Pocahontas Police Department where they conducted a license check and determined that Sam owned the vehicle.

Soon thereafter, Sheriff Osborne and Deputy Harris returned to Mrs. Burnopp's residence while Deputy Howington and Deputy Haggerman drove to Bluefield to find Sam Ealy. Upon arriving at the Burnopp residence, Sheriff Osborne was met outside by Debbie Ealy who went there to inquire what he wanted. As Mrs. Burnopp watched from the house, Sheriff Osborne directed Debbie Ealy to get in the front seat of his police car. While Deputy Harris and Sheriff Osborne joined Debbie Ealy in the police car, Osborne read Debbie her Miranda rights and asked her if the car in the garage belonged to Sam. After being allowed to look in the garage door window, Debbie told the officers that the car belonged to Sam. Debbie also observed that both the large main and small side garage doors were closed. Once he finished questioning Debbie, Osborne directed her to ask her mother to come outside and talk with him.

In response to Osborne's request, Mrs. Burnopp left her house and sat in the front seat of the police car with Osborne and Harris also in the car. Osborne asked Mrs. Burnopp if she owned the property and she informed him that she did. Without informing her of her right to withhold consent, Osborne asked Mrs. Burnopp for permission to search the garage in order to "save him a trip from coming back and getting a search warrant." Ignorant of whether a search warrant was required or whether grounds existed to obtain one, Mrs. Burnopp agreed to allow the officers to search the garage. Mrs. Burnopp returned to the house, obtained a key to the main garage door, and brought it to the officers, who then opened the garage door. During this time, Mrs. Burnopp noticed that both garage doors were closed and the garage lights were off.

Meanwhile, Deputies Howington and Haggerman travelled to the Bluefield Industrial Park where Sam Ealy worked in order to obtain his consent to search the garage and his car. The officers told Ealy that they needed him to return with them to Pocahontas because someone wanted to ask him some questions. Believing he would have been "officially arrested" if he tried to avoid the officers, Ealy agreed to go with them to Pocahontas even though the officers never suggested Ealy was under arrest. Ealy was required to sit in the back seat of the police car from which he was unable to exit on his own and where Howington read him his Miranda rights. Ealy was taken back to his mother's residence and put in Sheriff Osborne's car from which he could see that the garage door was open and his car was visible. Without allowing Ealy to talk with his mother or sister, Osborne again read Ealy his Miranda rights and obtained Ealy's signature on a waiver form. Osborne then told Ealy that he needed Ealy to sign a consent to search form because the police believed his car was used in the Davis murders. Ealy read the consent to search form. When Ealy hesitated to sign the form, Osborne told Ealy that if Ealy did not sign the form he would simply get a search warrant and take the vehicle anyway. Thereupon, Ealy signed the consent to search form.

During the various pre-trial hearings, Sheriff Osborne and Deputy Howington testified on several occasions. They claimed when they first arrived at the garage the small side door was a few inches ajar and they could see a light on inside the garage. The officers claimed they pushed open the side door and entered the garage to look for John Mark because they knew he did automobile body work and, therefore might have heard about the car involved in the murders. However, despite the officers' explanations of their searches, the trial court refused to believe their testimony. The court found that "the evidence presented by the Commonwealth was illogical and incredible. And the testimony of the Sheriff consisted of responses that were equivocal, noncommittal and in one vital point contradictory to prior sworn testimony. And that was the second time in this case the Sheriff has testified in direct conflict to prior sworn testimony. The testimony of the Deputy Howington was highlighted of what could most charitably be characterized as a glaring misstatement of fact." Based on the evidence and the trial court's determination of the incredibility of the officers' testimony, the trial court held that the police unlawfully "opened the door to the garage and stepped through into the inside of the garage without a warrant, without consent and in violation" of Ealy's fourth amendment rights. The court also held Mrs. Burnopp's consent to search was involuntary while holding Ealy's consent to search was voluntary. Nonetheless, the court suppressed the evidence seized from the garage since it all derived from the initial illegal search.

The first issue raised by the Commonwealth is whether Sam Ealy had a personal expectation of privacy in the garage. In particular, the Commonwealth challenges the court's finding that the garage was within the curtilage of Ealy's home. However, we do not find it necessary to address the issue of curtilage since we find Ealy had a personal expectation of privacy in the garage regardless of whether it was within the curtilage of the home.

The fourth amendment protects individuals against illegal searches and seizures by the government. However, the rights guaranteed under the fourth amendment are personal...