Patler v. Com.

• Decision Date: 30 November 1970
• Parties: John PATLER v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 618

177 S.E.2d 618

211 Va. 448

John PATLER v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

Nov. 30, 1970.

Thomas J. Harrigan, Arlington (Harrigan & Morris, Arlington, on brief), for plaintiff in error.

C. Tabor Cronk, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., Vann H. Lefcoe, Asst. Atty. Gen., on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN, and HARMAN, JJ.

HARMAN, Justice.

This appeal is from a 20 year sentence pronounced by the trial court upon a jury verdict finding the defendant guilty of the first degree murder of George Lincoln Rockwell on August 25, 1967.

The testimony before the jury consumed approximately three weeks. The printed record is more than 1500 pages long.

We have examined each of the thirty-nine assignments of error filed by the defendant and find only two questions raised of sufficient substance to merit comment and discussion.

I

Did the court err in admitting in evidence certain shell casings and spent bullets discovered and seized on the farm of Sam Ervin in Highland County?

Sam Ervin is the father of defendant's wife. The evidence shows that defendant, his wife and their children lived with Sam Ervin, his wife and children. Ervin, in his testimony, said that defendant was a part of his 'family.' Ervin owned a house at 2522 Lee Highway in Arlington and another house on his farm in Highland County. He testified that Patler, as a member of his family, had a key and free access to both houses and that the family spent approximately half of the time at each.

On September 16, 1967, during their investigation of Rockwell's murder, the police interviewed Lester James 'Tom' Miller who was employed as a laborer on Ervin's farm. Miller told them that he had seen the defendant target shooting with a pistol in a field on the farm sometime in July.

After receiving this information the officers proceeded to the Ervin farm for the purpose of obtaining Ervin's consent to inspect the field for shell casings and spent bullets. They did not find Ervin or anyone else at the dwelling house.

The officers left the farm, obtained a search warrant, and then returned to the farm where they encountered Miller and again talked with him. As a result of the officers' questions, Miller pointed out the area where he had observed Patler shooting in July. The officers went to the dwelling, knocked on the door and ascertained that no one was there. They then posted the search warrant and proceeded to the field pointed out by Miller where the shell casings and spent bullets were discovered and seized.

The spent bullets were removed from a tree which was located about 250 feet from the dwelling house in a field described by some of the witnesses as a pasture. The shell casings were discovered in the same field approximately the same distance from the house and were 25 feet to 75 feet away from the tree where the spent bullets were found. The house and outbuildings adjacent thereto are surrounded by a fence which was built during the spring or summer of 1967. The spent bullets and shell casings were approximately 200 feet outside of this fenced area.

A pretrial hearing was conducted on a motion by the defendant to suppress these shell casings and spent bullets.

At this hearing several photographs were presented showing the dwelling and the fenced area around the dwelling. Other photographs were introduced showing the field where the seized items were found and its proximity to the house and yard. It was established that the farm was not posted against trespassers. Evidence was introduced showing the location of the various outbuildings and the purposes for which they were used. The evidence discloses there is a dry creek bed or ditch and a small branch or creek between the yard fence and the place where the controverted items were found.

Patler presented evidence that the field was regularly mowed and was used occasionally as a picnic area for the family. There was evidence that the Patler and Ervin children played in the field 'quite a bit' and had erected a 'fort' of rough boards there during the summer of 1967.

The trial court held the search warrant to be invalid because of an insufficient affidavit, a ruling that is not challenged here. It ruled, however, that the defendant's motion to suppress should be denied as a search warrant was not required to conduct this search under the open field doctrine recognized by this court in McClannan v. Chaplain, 136 Va. 1, 116 S.E. 495 (1923). To reach this conclusion the court made a determination that the yard fence established the curtilage and that the field was outside the curtilage.

Patler argues that even if the field was outside the curtilage the items seized were the fruits of an illegal search warrant and a failure to suppress them would be a violation of his rights under the Fourth Amendment to the United States Constitution.

This argument must fail for its is well established that '* * * the special protection afforded by the Fourth Amendment to the people in their 'persons, houses, papers and effects,' is not extended to the open fields. The distinction between the latter and the house is as old as the common law. 4 Bl.Comm. 223, 225, 226.' Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898, 900 (1924).

'Ever since this Supreme Court pronouncement in Hester, the 'open field' doctrine has been uniformly recognized and applied where, under the facts of a particular case, it was held that the search and seizure had occurred in an open field.' Wattenburg v. United States, 388 F.2d 853, 856 (9th Cir. 1968).

The real issue, therefore, is raised by defendant's argument that the trial court erred in finding the field to be outside the curtilage. He contends that this finding is contrary to the evidence.

'The curtilage of a dwelling house is a space necessary and convenient, habitually used for family purposes and the carrying on of domestic employment; the yard, garden, or field which is near to and used in connection with the dwelling.' Bare v. Commonwealth, 122 Va. 783, 795, 94 S.E. 168, 172 (1917).

When we apply the holding in Bare to the facts of this case it is apparent that the latter argument must also fail.

The evidence discloses that the area around the dwelling and outbuildings habitually used and necessary and convenient for family purposes was enclosed by a substantial fence. When such a fence is erected it ordinarily defines the curtilage, particularly in a rural area. The evidence further shows that the field was used only four or five times during 1967 for family picnics. While the field was regularly mowed, this is what one would ordinarily expect to be done to a pasture field in which no livestock grazed.

The only other evidence of family use was that Patler's son, age 3, and Ervin's twin sons, age 10, played there 'quite a bit' and built a 'fort' there in the summer of 1967.

We hold this evidence insufficient to establish the necessity, convenience and habitual use for family purposes which would be required in order to extend the curtilage to include the field.

II

Was the evidence sufficient to support the jury's verdict?

The evidence establishes that Rockwell, head of the nazi party in America, died on August 25, 1967, after being shot twice in the chest at approximately 11:58 a.m. by an assailant who fired the shots from the roof of a shopping center on Wilson Boulevard in Arlington County. Rockwell had just entered his parked car in the shopping center lot when the shots were fired. The shots penetrated the windshield of the car before striking Rockwell. After being fatally wounded Rockwell opened the right front door and got out of the car; he pointed to the roof of the shopping center and then collapsed and died near the right rear of the car.

The shopping center is bounded on the south by Wilson Boulevard, a busy thoroughfare running east and west, and on the east by Liberty Street. The north line of the shopping center abuts the rear yard of a block of houses which face on 9th Street. A person traveling north on Liberty Street from Wilson Boulevard would first cross 9th Street and would then descend a hill. Liberty Street terminates at a railroad which is four blocks from Wilson Boulevard. Bon Air Park, which lies north, east and south of the point where Liberty Street terminates, can be reached by crossing the railroad right of way.

Mrs. Thelma Burgess, whose back yard adjoined the rear of the shopping center, heard a shot and looked toward the shopping center. She observed a man run across the roof of the shopping center and leave the rear of the roof by stepping on a brick wall separating the shopping center from the houses facing on 9th Street. She then observed him leave the wall and run across the parking lot of the shopping center. She was unable to identify this man or to describe him.

Mrs. Alma Kirkpatrick, who was just starting her parked car in the shopping center lot, saw a man on the brick wall. This man left the wall and ran across the parking lot passing her car. He then ran behind her car forcing her to stop. The man stopped, looked in the direction of Rockwell's car and then ran back to the wall and crossed it. She said the man was wearing a 'brownish' or 'dark brown coat' and that he looked 'something like what Mr. Patler looks like.'

James Cummings and Thomas Blakeney, two barbers employed at the shopping center, heard the shots. They ran outside where they were told by a bystander that the assailant had fired the shots from the roof. The two barbers ran to the rear of the shopping center where Cummings observed a man run across the corner of 9th and Liberty Streets. While Blakeney went to a nearby house to call the police, Cummings followed the man and observed him run down the hill on Liberty Street in the direction of Bon Air Park. Cummings testified that this man had on 'dark...