Robinson v. Com.

• Decision Date: 31 January 2006
• Docket Number: Record No. 2474-03-2.,Record No. 2539-03-2.
• Citation: 625 S.E.2d 651,47 Va. App. 533
• Court: Virginia Court of Appeals
• Parties: Elisa Kenty ROBINSON v. COMMONWEALTH of Virginia. George Fisher Robinson v. Commonwealth of Virginia.

Page 651

625 S.E.2d 651

47 Va. App. 533

Elisa Kenty ROBINSON v. COMMONWEALTH of Virginia.

George Fisher Robinson v. Commonwealth of Virginia.

Record No. 2474-03-2.

Record No. 2539-03-2.

Court of Appeals of Virginia, Richmond.

January 31, 2006.

COPYRIGHT MATERIAL OMITTED

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

Robert E. Byrne, Jr., Fairfax (Jonathan T. Wren; Martin & Raynor, P.C., Charlottesville, on briefs), for appellant George Fisher Robinson.

Donald E. Jeffrey III, Assistant Attorney General (Judith Williams Jagdmann, Attorney General; Karri B. Atwood, Assistant Attorney General, on briefs), for appellee.

Present: FITZPATRICK, C.J., BENTON, ELDER, FRANK, HUMPHREYS, CLEMENTS, FELTON, McCLANAHAN, HALEY, JJ., and BUMGARDNER, Ret. J.^*

UPON REHEARING EN BANC

HUMPHREYS, Judge.

Appellants George F. Robinson and Elisa K. Robinson (collectively, "the Robinsons") appeal their multiple convictions for contributing to the delinquency of a minor, a violation of Code § 18.2-371. Elisa Robinson contends that the trial court erred in denying her motion to suppress, reasoning that, because the investigating police officer was located in the curtilage of their home when he witnessed the illicit activity, the resulting search violated her Fourth Amendment right to be free from unreasonable searches and seizures. George Robinson, in contrast, argues that, although the police officer did not violate the Fourth Amendment when he initially entered the premises, the officer lacked the exigent circumstances necessary to permit his further intrusion onto the property. For the following reasons, we disagree with both appellants' arguments and, therefore, affirm their convictions.

I. BACKGROUND

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). So viewed, the evidence in this case establishes the following.

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, Officer Cox saw between ten and twenty cars parked on the state road, and he also saw two or three cars parked on the left-hand side of the driveway. From that position, Officer 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 end of the driveway. The floodlights above the front door were turned on, and the lights along the sidewalk leading to the front door were also illuminated.

Officer Cox, who was driving a marked police car with its headlights on, "got on the radio" and told the other officers in the area to "start heading this way" because "[i]t appears that there's a party." Officer Cox then turned into the driveway and started to drive towards the house. Almost immediately after pulling into the driveway, Officer 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." Officer 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, Officer 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 Officer Cox's police car. The two juveniles "looked at [Officer Cox], looked at the house, yelled `cops,' dropped the beer bottles, and ran down a fence line toward the woods." Officer Cox then pulled his police vehicle behind a car parked by the garage, and he 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." Officer Cox 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."

After radioing the other officers, Officer Cox proceeded into the backyard "to look for the juvenile host." According to Officer Cox, he went into the backyard because he "[w]anted to find out what was going on, [and] find out who the people were that were running away," because he "was worried for their safety." After speaking with one of the party attendees, Officer Cox then "walk[ed] up to the back door of [the] house" and knocked on a clear glass sliding door. From outside the residence, he could see "two adults sitting at the kitchen table."

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

During the suppression hearing, Officer Cox testified that his police car was next to a bush planted by the front sidewalk 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 Officer Cox, "So you were at the bush when you saw the two individuals?" Officer Cox responded, "That's right."

By letter opinion dated August 4, 2003, the trial court held that Officer 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 held that Officer 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. Finally, the trial court concluded that Officer Cox's entry into the backyard was justified because he had both probable cause to believe that a crime was being committed and exigent circumstances "given the likelihood of evidence being destroyed and juveniles running away." Accordingly, the trial court denied the Robinsons' motions to suppress.

The trial court convicted each appellant of nine counts of contributing to the delinquency of a minor. Both parties appealed their convictions to this Court.

II. PROCEDURAL 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 did not violate any reasonable expectation of privacy, and, therefore, his conduct did not implicate the Fourth Amendment. See id. By orders dated June 21, 2005, this Court granted the Robinsons' petitions for rehearing en banc and stayed the mandates of the panel opinion. See Elisa Robinson v. Commonwealth, 46 Va.App. 24, 614 S.E.2d 667 (2005); George Robinson v. Commonwealth, 46 Va.App. 23, 614 S.E.2d 667 (2005).

During the en banc oral arguments, the Commonwealth conceded that Officer Cox was located on the curtilage of the Robinsons' home when he observed the unlawful activity. Accordingly, this question — which was in dispute before the three-judge panel, see Robinson, 45 Va.App. at 604-07, 612 S.E.2d at 757-58 — is no longer at issue on appeal. However, the Commonwealth maintains that, although Officer Cox intruded upon the curtilage, he did not violate the Fourth Amendment because, for the reasons stated in the majority panel opinion, the Robinsons lacked a reasonable expectation of privacy in the area from which he viewed the illegal activity.¹

Also during the en banc oral arguments, George Robinson conceded that he lacked a reasonable expectation of privacy in their driveway on the night in question. He argues, however, that the officer's further intrusion onto the property was unconstitutional, reasoning that the officer — once his suspicions of underage drinking had been validated — should have left the property or otherwise secured the premises and then obtained a search warrant. This argument was not previously raised before the three-judge panel and, thus, was not addressed in the panel opinion.²

Elisa Robinson, in contrast, continues to maintain that she possessed a reasonable expectation of privacy in the driveway and, thus, argues that Officer Cox violated the Fourth Amendment when he entered the property without a warrant. However, Elisa Robinson concedes that, if the officer was legitimately present on the premises when he witnessed the illegal activity, the officer's further...