Kyer v. Com.
| Decision Date | 17 August 2004 |
| Docket Number | Record No. 2200-03-2. |
| Citation | 43 Va. App. 603,601 S.E.2d 6 |
| Parties | Joshua Davis KYER v. COMMONWEALTH of Virginia. |
| Court | Virginia Court of Appeals |
James R. Cooke, Jr., for appellant.
John H. McLees, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: BUMGARDNER, HUMPHREYS, JJ., and HODGES, Senior Judge.
Joshua Davis Kyer appeals his convictions, after a bench trial, for three counts of statutory burglary, in violation of Code § 18.2-91 and three counts of petit larceny, in violation of Code § 18.2-96. Kyer argues the trial court erred in refusing to suppress certain evidence, which he alleges was "obtained as a result of an illegal, warrantless search and seizure." For the reasons that follow, we affirm.
As the parties conceded below, the facts in this case are essentially "uncontroverted." On August 26, 2002, Officer B.E. Davis and Detective Brent Story, of the Chesterfield County Police Department, responded to an "ACTF" alarm that had been activated at Southside Speedway. It was approximately 2:00 a.m. Officer Davis was in uniform; Detective Story was wearing "a shirt and tie." As they arrived on the scene, they observed two individuals running from the establishment.1 The officers were able to apprehend only one of the individuals. That individual subsequently implicated a "Mr. Able" in the burglary.2 The officers immediately went to Mr. Able's home and questioned him. Mr. Able implicated Kyer in the burglary and agreed to take the officers to Kyer's home.
The officers arrived at Kyer's home at approximately 4:00 a.m. that morning. As they approached the front door, they observed that the door was open "wide enough for [Officer Davis] to walk through it without touching the door." It was dark and raining, and "[t]here were no exterior lights" on, nor lights on inside the home.
Because of the circumstances, Officer Davis and Detective Story believed that "[s]omeone had forced entry or broken into the home." Accordingly, they "made a ... plan," discussing how they would respond if they "encounter[ed] any opposition." The officers then "knocked on the door several times," announcing their presence. After "a couple" of minutes, and after hearing no response from inside the home, the officers drew their firearms and flashlights and proceeded inside the home and up the stairs, "continuing to announce [their] presence" in "loud voice[s]."
While conducting a "protect[ive] sweep" of all of the rooms of the home, Officer Davis found that two people were in the home, "asleep in their beds." "Less than two minutes" later, while Detective Story waited in the "living room" of the home, Officer Davis awoke one of the sleeping individuals by shining his flashlight "on her." The officers later learned that individual was Kyer's mother. When she awoke, Officer Davis identified himself, inquired as to her well-being, and asked if anyone else was "supposed to be in the house." Kyer's mother responded that "her sons were." The officers then woke up Kyer's brother, the only other person they had observed sleeping in the home.
After Kyer's mother "g[ot] herself together," approximately ten minutes after Officer Davis woke her up, Officer Davis and Detective Story met with her and Kyer's brother in the "common area" of the home. Detective Story "sat down in a chair across from her, 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." Officer Davis then asked Kyer's mother if they could "check[ ] the house for anything that was stolen from the Southside Speedway." Kyer's mother agreed. Officer Davis subsequently found several of the missing items in Kyer's bedroom.
Kyer was charged with three counts of statutory burglary and three counts of petit larceny. Because Kyer was a minor, he was tried and convicted of the charges in the juvenile and domestic relations district court. Kyer appealed his convictions to the circuit court and prior to his trial de novo, filed a motion to suppress the evidence against him, arguing the officers' search was "conducted without a warrant and was not within any exception to the warrant requirement."
During the hearing on Kyer's motion to suppress, Detective Story testified that he had "worked the midnight shift for over nine years in patrol" and that it was not "uncommon" to approach homes and find doors standing open. He stated, "[e]very time [this occurs], we make entry to make sure everything inside is okay."
Kyer's counsel subsequently argued that the officers did not enter the home because of an "exigent circumstance," but agreed that if the officers were exercising their "community caretaker function" in entering the home, their entry would be a "justifiable exception[ ] to the prohibition against a warrantless search." Nevertheless, Kyer's counsel contended that the evidence demonstrated they entered the home, not for purposes of exercising their community caretaker function, but for the pretextual purpose of investigating Kyer's "criminal activity." Kyer's counsel argued further:
The trial court ruled as follows, in relevant part:
I find that ... it was appropriate for the officers to enter the residence, although they certainly arrived there initially as part of the conduct of the criminal investigation, I do think that the community caretaker doctrine and/or exigent circumstances permitted their entry into the residence. Particularly, I find that their initial contact or investigation was objectively reasonable, but the intrusion was limited and I do not find that the police officers in this case were acting under a pretext.... I also find that even in the absence of evidence that [Kyer's mother] was expressly advised that she had the right to withhold consent, 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 [sic], the consent was valid. Therefore, I'm going to overrule the motion to suppress....
Kyer subsequently pled "Not Guilty" to the charges, but conceded that the evidence summarized by the Commonwealth would be sufficient to support convictions. After noting that Kyer "preserve[d] [his] objection on the 4th Amendment issue," the trial court found Kyer guilty of the charged offenses.
On appeal, Kyer argues that the trial court erred in denying his motion to suppress because: 1) the "community caretaker exception," as applied in the Commonwealth, does not extend to homes; 2) even were the "community caretaker exception" to apply, the officers lacked a "reasonable basis" upon which to believe that entry into the home was warranted; and 3) Kyer's mother's consent was "vitiated as a result of the illegal, warrantless entry." For the reasons that follow, we disagree.
We note first, that "[t]he 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) (citations omitted).
At a hearing on a defendant's motion to suppress evidence allegedly obtained in violation of the Fourth Amendment, the defendant has the burden of establishing standing by proving that he had a reasonable expectation of privacy in the place searched, and the Commonwealth has the burden of proving that the relevant searches or seizures did not violate the defendant's Fourth Amendment rights.
Jefferson v. Commonwealth, 27 Va.App. 1, 10, 497 S.E.2d 474, 478 (1998) (citations omitted). Further, "[w]e are bound by the trial court's findings of historical fact unless `plainly wrong' or without evidence to support them[,] and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers." McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). "However, we review de novo the trial court's application of defined legal standards such as probable cause and reasonable suspicion to the particular facts of the case." Hayes v. Commonwealth, 29 Va.App. 647, 652, 514 S.E.2d 357, 359 (1999).
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