Kyer v. Com.

• Decision Date: 03 May 2005
• Docket Number: Record No. 2200-03-2.
• Parties: Joshua Davis KYER v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

612 S.E.2d 213

45 Va. App. 473

Joshua Davis KYER v. COMMONWEALTH of Virginia.

Record No. 2200-03-2.

Court of Appeals of Virginia, Richmond.

May 3, 2005.

COPYRIGHT MATERIAL OMITTED

James R. Cooke, Jr., for appellant.

John H. McLees, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Amicus Curiae: Virginia Association of Criminal Defense Lawyers (Steven D. Benjamin; Betty Layne DesPortes, on brief), for appellant.

Present: FITZPATRICK, C.J., BENTON, ELDER, FRANK, HUMPHREYS, CLEMENTS, FELTON, KELSEY and McCLANAHAN, JJ.

UPON REHEARING EN BANC

KELSEY, Judge.

Joshua Davis Kyer challenges on appeal his burglary and larceny convictions, claiming police unlawfully entered his mother's apartment where he lived and obtained incriminating evidence in violation of the Fourth Amendment. We agree with Kyer that no warrant exception justified the police entry into the apartment. But we also agree with the trial court that, once inside, the police searched the apartment only after receiving permission from Kyer's mother to do so. This consent, the trial court correctly held, was "sufficiently an act of free will to purge the primary taint." Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 416-17, 9 L.Ed.2d 441 (1963).

I.

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

At about 2:00 a.m. on August 26, 2002, Officer B.E. Davis and Detective Brent Story responded to a burglar alarm at the Southside Speedway. They saw two suspects running from the scene. They caught one, but the other got away. With a tip from the detained suspect, the officers' investigation led them to the Kyer apartment.

The officers arrived at the apartment at approximately 4:00 a.m. The front door of the apartment was open wide enough for an individual to "walk through it without touching the door." There were no lights on. In this particular area, Detective Story observed, "it was not uncommon for this situation to occur." "Every time it does," he testified, "we make entry to make sure everything inside is okay." They knocked on the door several times, waited a couple of minutes, and then went inside with weapons drawn and flashlights on. Fearing someone had "forced entry or broken into the home," the officers conducted a two to three minute "cursory" protective sweep looking for any possible intruders.

After completing the protective sweep, Officer Davis awoke Kyer's mother, who was still asleep in her bedroom. Davis identified himself, inquired about her well-being, and asked if anyone else was "supposed to be in the house." She told him she lived there alone with her two sons. When asked if "she was okay," she replied "she was fine." During this conversation, Detective Story waited in the living room. Officer Davis left her bedroom to permit her to "get herself together." He went back into the living room and waited with Detective Story. Kyer's mother came out and then "excused herself to go back into her bedroom" before again reappearing to speak with the officers about ten minutes later. By this time, Kyer's brother had joined the officers in the living room after being awoken by them. No one else was in the apartment.

Detective Story sat down in a chair across from Kyer's mother and explained "what was going on and why [they] had been there originally and also explained to her why [they] came in in the first place so she would understand that." She told the officers "everything was okay" and that she had been asleep. The officers also advised her about the Southside Speedway incident and the suggestion that her son may have been involved. She said she thought he was home all night and was still there.

After she had been briefed on the situation, Officer Davis then asked Kyer's mother for permission to search for "anything that was stolen from the Southside Speedway." She consented to the search. In the loft where Kyer normally slept, Officer Davis found several items stolen during the burglary of the Southside Speedway.

Kyer was charged with three counts of statutory burglary and three counts of petit larceny. Kyer moved to suppress the inculpatory evidence found in his bedroom, arguing that the officers' initial entry into the apartment was unlawful. That warrantless entry, Kyer argued, nullified the subsequent consent to search given by his mother. The trial court rejected both arguments.

The initial entry, the court held, fell within the "community caretaker doctrine and/or exigent circumstances" exception to the warrant requirement. The court found the officers' subjective intent in entering the apartment was motivated by their good faith desire to ensure an intruder had not come through the opened front door. Finding the officers' testimony credible, the court found they were not "acting under a pretext" to gain entry into the apartment to continue their investigation of the Southside Speedway burglary.

The trial court also held that, even if the initial entry fell outside the community caretaker or emergency exceptions, Kyer's mother voluntarily consented to the search and "the totality of the circumstances are not sufficient to have vitiated her consent." "So, on that ground, irrespective of what decision the Court might reach on the question of exigent circumstances or exercising community caretaker function, the consent was valid."

Following the trial court's ruling on the suppression motion, Kyer stipulated that the evidence was sufficient to prove his guilt on all charges. Upon being convicted, Kyer appealed to us challenging the trial court's denial of his suppression motion. A panel of our Court held the community caretaker doctrine authorized the initial entry into the apartment, thereby mooting any need to examine the legal efficacy of the later consent to search. Kyer v. Commonwealth, 43 Va.App. 603, 601 S.E.2d 6 (2004).

Having reconsidered the matter en banc, we hold the initial entry cannot be justified under the emergency or community caretaker doctrines and thus the consent issue must be decided. And, on that point, we agree with the trial court that the consent was not nullified by the earlier unlawful entry.

II.

"Though the ultimate question whether the officers violated the Fourth Amendment triggers de novo scrutiny, we defer to the trial court's findings of `historical fact' and give `due weight to the inferences drawn from those facts by resident judges and local law enforcement officers.'" Slayton, 41 Va.App. at 105, 582 S.E.2d at 449 (quoting Barkley v. Commonwealth, 39 Va.App. 682, 689-90, 576 S.E.2d 234, 237-38 (2003)). Thus, we must give "deference to the factual findings of the trial court" and "independently determine" whether those findings satisfy the requirements of the Fourth Amendment. Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464 (2003).

To prevail on appeal, "the defendant must show that the trial court's denial of his suppression motion, when the evidence is considered in the light most favorable to the prosecution, was reversible error." Id. In other words, on appeal, the "burden to establish that the denial of the motion to suppress constituted reversible error rests with the defendant." King v. Commonwealth, 39 Va.App. 306, 308, 572 S.E.2d 518, 519 (2002) (citation omitted).

A. THE INITIAL ENTRY

Among the many interests served by the Fourth Amendment, the privacy interest in one's home has few equals. "At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (citation and internal quotation marks omitted). "It is axiomatic that the `physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732 (1984) (citation omitted). But even on this topic the Fourth Amendment's text endorses no absolutes. It instead condemns only "unreasonable" searches and seizures.

One concession to reasonableness, the emergency exception, recognizes the "right of the police to enter and investigate" when someone's health or physical safety is genuinely threatened. Reynolds v. Commonwealth, 9 Va.App. 430, 437, 388 S.E.2d 659, 664 (1990) (citation omitted); see also Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). It rests on the commonsense rationale that "preservation of human life is paramount to the right of privacy" protected by the Fourth Amendment. Reynolds, 9 Va.App. at 437, 388 S.E.2d at 664 (citation omitted). This concern parallels one of the applications of the community caretaker exception, which recognizes that "police owe `duties to the public, such as rendering aid to individuals in danger of physical harm, reducing the commission of crimes through patrol and other preventive measures, and providing services on an emergency basis.'" Id. at 436, 388 S.E.2d at 663.¹

In this case, however, we need not engage in any extended analysis of the emergency or community caretaker exceptions. Nor need we elaborate on their various formulations. We believe the facts would not justify an objectively reasonable officer to think either exception applied.² Stripped of its immaterial aspects, the fact pattern in this case includes only one arguably suspicious circumstance: an open door on an August night.

There were no signs of forced entry—such as pry marks, mangled locks, broken hinges, or disfigured door jams.³ No one called out for help. No sounds or observations suggested panic or danger within the apartment. There were no reports from neighbors about any unique medical concerns or other vulnerabilities of...