Robinson v. Com.

Decision Date17 May 2005
Docket NumberRecord No. 2474-03-2.,Record No. 2539-03-2.
Citation612 S.E.2d 751,45 Va. App. 592
CourtVirginia Supreme Court
PartiesElisa Kenty ROBINSON v. COMMONWEALTH of Virginia. George Fisher Robinson v. Commonwealth of Virginia.

Francis McQ. Lawrence (Rhonda Quagliana; St. John, Bowling & Lawrence, LLP, on briefs), Charlottesville, for appellant Elisa Kenty Robinson.

Jonathan T. Wren (David Heilberg; Martin & Raynor, P.C., on briefs), Charlottesville, for appellant George Fisher Robinson.

Donald E. Jeffrey III, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on briefs), for appellee.



George F. Robinson and Elisa K. Robinson (collectively, "the Robinsons") appeal their convictions for contributing to the delinquency of a minor, a violation of Code § 18.2-371. The Robinsons argue on appeal that the trial court erred in denying their motions to suppress, contending that, because the investigating police officer was located in the curtilage of their home when he witnessed the illicit activity, the resulting search violated their Fourth Amendment right to be free from unreasonable searches and seizures. For the following reasons, we disagree and affirm their convictions.


In accord with our usual standard of review, on the appeal of a denial of a motion to suppress, we view the evidence and all reasonable inferences flowing from the evidence in a light most favorable to the Commonwealth, the party prevailing below. Garcia v. Commonwealth, 40 Va.App. 184, 189, 578 S.E.2d 97, 99 (2003); Sabo v. Commonwealth, 38 Va.App. 63, 69, 561 S.E.2d 761, 764 (2002).

On August 16, 2002, the Albemarle County Police Department received three separate telephone calls reporting an alleged underage drinking party at the Robinsons' home. Corporal Scott Cox was dispatched to investigate these allegations, and he arrived at the Robinsons' home at approximately 11:00 p.m. From the state road in front of the house, Cox could see ten to twenty cars parked on the state road, as well as two to three parked cars on the left-hand side of the driveway. From that position, Cox could also see the house, the front porch, the front door, and the front yard, although he could not see the backyard or the entire driveway. The floodlights above the front door were turned on, and the lights along the sidewalk leading to the front door were also turned on.

Cox, who was driving a marked police car with its headlights on, turned into the driveway and started to drive towards the house. While proceeding up the driveway, Cox saw several additional parked vehicles near the right side of the driveway, as well as "several parked vehicles near the side of the house" straight in front of him.

Cox continued up the driveway in his police car. From his position inside the police car, he began to see some "activity" in the backyard. Before reaching the point where the walkway to the front door intersects with the Robinsons' driveway, Cox saw two individuals holding clear beer bottles. The individuals, both of whom appeared to be underage, were standing by a pine tree about seven or eight yards away from Cox's police car. The two juveniles "looked at [Cox], looked at the house, yelled `cops,' dropped the beer bottles, and ran down a fence line toward the woods." Cox pulled his police car behind one of the parked cars and looked to his left. From that vantage point, "[h]e saw juveniles running toward the woods." Also, "[h]e could see a patio table covered with beer bottles and noticed beer bottles strewn about the backyard." Cox then got out of his car, "yelled for people to stop running, and radioed other officers who were waiting off the property that kids were running east into the woods."

The Robinsons were arrested and charged with nineteen counts of contributing to the delinquency of a minor. Both parties filed a motion to suppress, contending that Cox was unlawfully present on their property when he viewed the illicit activity.

At the suppression hearing, several photographs were introduced depicting the layout of the Robinsons' premises. According to the photographs, the driveway originates from the state road in front of the house. The driveway then splits into two paths. Both paths continue towards the house, and they both bend towards the right. The two branches of the driveway merge back into a single driveway near the front, right-hand corner of the house. The house is positioned entirely to the left of the driveway.

Also, a lighted sidewalk leads from the driveway to the front door of the Robinsons' home. This sidewalk intersects with the driveway just past the area where the two branches of the driveway reunite. A large bush has been planted in front of the sidewalk at the point where the sidewalk intersects with the driveway, shielding a portion of the sidewalk from view. Other than walking across the grass in the front yard, the driveway and connecting sidewalk serve as the only means of apparent pedestrian access to the front door of the house.

Where the driveway paths are divergent, the area between the two branches forms an "island" containing numerous trees. These trees, along with the general rightward bend of the driveway, shield the garage, backyard, and a large portion of the driveway from public view. The portion of the driveway shielded from public view includes the bush and the area where the front sidewalk intersects with the driveway.

At the suppression hearing, Cox testified that his police car was next to the bush in the driveway when he "clearly" saw "two male juveniles standing on the other side of the tree holding beer bottles." To clarify the position in the driveway from which the officer observed the juveniles, the trial court asked Cox, "So you were at the bush when you saw the two individuals?" Cox responded, "That's right."

Cox was asked repeatedly on cross-examination whether he entered the driveway for the purpose of knocking on the front door to speak with an occupant of the house. Each time Cox was asked the question, he responded that he entered the property to "investigate." Cox further responded in the affirmative to the following question: "Isn't it correct that you have described the situation you were hoping to observe as the effect when you flick on a light in a dark kitchen, and the cockroaches scatter?" Cox was also asked, "So you were looking for a reaction of people scattering to confirm your suspicion that you had an underage drinking party?" Cox responded, "Right."

By letter opinion dated August 4, 2003, the trial court denied the Robinsons' motions to suppress. In its written opinion, the trial court observed that Cox "planned to enter the property to investigate the allegations of underage consumption of alcohol." The trial court also observed that, "[a]s Cox went down the driveway, he could not see the backyard or the garage," but that "[h]e could see the house, the front yard, and the front porch." Additionally, the trial court found that "[t]here were no signs posted"—such as a "no trespassing" sign—at the entrance to the driveway.

Based on this evidence, the trial court found that the Robinsons' driveway was not part of the curtilage of the house and, therefore, concluded that "Cox's presence there [did] not implicate the Fourth Amendment." The court additionally found that Cox's presence in the Robinsons' driveway was justified by the officer's right to conduct a "knock and talk," that is, to approach a home and knock on the front door to speak with an occupant. Under either of the preceding rationales, the trial court concluded that "Cox was in a lawful place in the driveway" when he observed the two juveniles drinking beer, and his observations were therefore admissible pursuant to the plain view exception to the warrant requirement. Accordingly, the trial court denied the Robinsons' motions to suppress.

The Robinsons were subsequently convicted of nine counts of contributing to the delinquency of a minor, and the trial court sentenced each defendant to six months in jail, three months suspended, on each count. The trial court ordered the sentences to run consecutively, resulting in active jail time of twenty-seven months for each defendant. The Robinsons appeal.


Although "`[w]e are bound by the trial court's findings of historical fact unless `plainly wrong' or without evidence to support them,' ... we review de novo the trial court's application of legal standards ... to the particular facts of the case." McCracken v. Commonwealth, 39 Va.App. 254, 258, 572 S.E.2d 493, 495 (2002) (en banc) (quoting 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)). Further, "[i]n reviewing a trial court's denial of a motion to suppress, `the burden is upon [the appellant] to show that the ruling ... constituted reversible error.'" McGee, 25 Va.App. at 197, 487 S.E.2d at 261 (quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)).

Whether a defendant has a reasonable expectation of privacy in the item seized or the place searched is a mixed question of law and fact. That is, we are bound by the trial court's underlying findings of fact, but we review de novo the ultimate determination of whether the Fourth Amendment applies under the circumstances of this case. See Sharpe v. Commonwealth, 44 Va.App. 448, 454, 605 S.E.2d 346, 349 (2004) ("[W]e review de novo the trial court's application of defined legal standards such as whether a defendant had a reasonable expectation of privacy sufficient to permit him to raise a Fourth Amendment challenge to a search.").

A. Cox Was On the Curtilage When He Observed the Juveniles Drinking Beer

The Robinsons contend that Cox conducted...

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4 cases
  • Robinson v. Com.
    • United States
    • Virginia Court of Appeals
    • January 31, 2006
    ...HISTORY On appeal, a three-judge panel, with one judge dissenting, affirmed the Robinsons' convictions. See Robinson v. Commonwealth, 45 Va.App. 592, 612 S.E.2d 751 (2005). The panel majority reasoned that, although the driveway was part of the curtilage of the home, Officer Cox's presence ......
  • Courtney v. Courtney, Record No. 2124-05-1 (Va. App. 6/20/2006)
    • United States
    • Virginia Court of Appeals
    • June 20, 2006
  • Robinson v. Com.
    • United States
    • Virginia Supreme Court
    • January 12, 2007
    ...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......
  • Collins v. Commonwealth
    • United States
    • Virginia Court of Appeals
    • July 21, 2015 put, and [4] the steps taken by the resident to protect the area from observation by people passing by.”Robinson v. Commonwealth, 45 Va.App. 592, 605, 612 S.E.2d 751, 758 (2005) (quoting United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326 (1987) ). In Robinson,......

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