Walls v. Com., 0100-85

• Decision Date: 05 August 1986
• Docket Number: No. 0100-85,0100-85
• Citation: 2 Va.App. 639,347 S.E.2d 175
• Parties: Charles WALLS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 175

347 S.E.2d 175

2 Va.App. 639

Charles WALLS v. COMMONWEALTH of Virginia.

Record No. 0100-85.

Court of Appeals of Virginia.

Aug. 5, 1986.

Tandy B. Rinehart, for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., on brief), for appellee.

Before KOONTZ, C.J., and BENTON and KEENAN, JJ.

KEENAN, Judge.

Charles Walls was convicted of grand larceny and of breaking and entering with intent to commit larceny. On appeal he contends that evidence found in his residence by police officers, who entered without a warrant, should have been suppressed as the product of an illegal search. The Commonwealth contends that the officers entered Walls' residence with implied consent or by invitation. It further argues that the subsequent search was valid because it was consented to by Walls' fiancee, Joyce Fox, who appeared to be sharing the residence with him. We find that the officers' entry was in violation of the Fourth Amendment and that because Fox's consent was obtained as a result of the illegal entry, it was ineffective to validate the search. Because there was no valid consent for the search, no warrant and no recognized exception to justify a warrantless search, all evidence obtained during the search must be suppressed. We further find that the court's error in admitting these items was not harmless beyond a reasonable doubt and we, therefore, reverse.

I. FACTS

Several police officers representing different jurisdictions knocked on the door of Walls' trailer at approximately nine o'clock p.m. on March 21, 1984. The officers had a warrant for Walls' arrest. Walls opened the door and stepped outside, leaving the door open behind him. He was arrested on the porch of the trailer and led to a police car. As Walls was being led away, Officer Hall of the Caroline County Sheriff's Department went up onto the porch to see if anyone was inside the trailer. Hall noted that the door was open and observed Ms. Fox standing in the living room, dressed in her nightgown. He then walked inside the trailer and informed Fox that Walls had been arrested. Hall did not ask either Walls or Fox for permission to enter the trailer, nor did he consider securing the trailer until a search warrant could be obtained.

Once inside, Hall asked Fox for permission to search the trailer. She agreed. A written consent form was prepared by Hall and signed by Fox. According to Hall, none of the officers searched the trailer prior to the consent, although some of them had followed him inside. During this time, Walls remained outside in a police car. The police asked for permission to search his car. Walls consented. At the suppression hearing, Walls was asked whether he would have consented to a search of the trailer if anyone had asked him and he replied that he would have.

The search of the trailer lasted approximately two hours. Various items of stolen property were recovered. At trial, the Commonwealth introduced three of the items found in Walls' trailer. A pair of binoculars, later identified by the victim of the burglary, was found in a drawer in Walls' bedroom. A ladies watch and a gold medallion, also later identified as belonging to the victim, were found in two locked metal boxes under Walls' bed.

At the suppression hearing, Officer Hall explained how he obtained consent from Walls for a search of the two metal boxes. Hall stated: "[W]hen we got back to Bowling Green, the Caroline Sheriff's office, I was talking to him (Walls) about these cases. At that time, I told him I would like to look in the two metal boxes, but they were locked. He furnished me a key and signed the consent form for me to open them."

A pre-trial motion was made to suppress the items found in the trailer. Walls argued that the officers' entry was illegal and that under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the evidence obtained as a result of the subsequent search should be suppressed as "fruit of the poisonous tree." The court denied this motion, ruling that under United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), Fox had given a valid third party consent to the trailer search. The court further indicated its belief that Fox's consent cured any illegality in the officers' entry. ¹

II. THE WARRANTLESS ENTRY

The first question we address is whether Officer Hall's warrantless entry into Walls' residence violated the Fourth Amendment. The court below did not specifically rule on this issue, finding only that Fox's consent was valid and that this cured any illegality which may have occurred as a result of the entry. We believe that the legality of the entry must be addressed, however, because in Matlock, the Supreme Court dealt only with the question whether a third party can give a valid consent to search jointly controlled property. It did not deal with the issue whether the police officers had lawfully entered the premises before obtaining that consent. ² Since we disagree with the trial court's conclusion that the validity of Fox's consent was unaffected by the manner of the entry, we first address that issue.

The Commonwealth has sought to justify the warrantless entry primarily on the basis that Walls and Fox impliedly invited an entry by leaving the door open and by failing to object when the police went inside. In addition, the Commonwealth has argued that the officers were entitled to enter the trailer after Walls' arrest to establish whether anyone else was present or to secure the trailer until a search warrant could be obtained.

The Supreme Court's decisions regarding warrantless entries into private homes are unambiguous. In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the Court stated: "[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Id. at 590, 100 S.Ct. at 1382.

More recently in Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), the Court elaborated on the reasoning behind this rule:

It is axiomatic that 'the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.' And a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest. It is not surprising, therefore, that the Court has recognized, as "a 'basic principle of Fourth Amendment Law' that searches and seizures inside a home without a warrant are presumptively unreasonable."

Id. at 748-49, 104 S.Ct. at 2097.

It is well settled that the burden is on the Commonwealth to establish an exception to the warrant requirement. United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951); see Verez v. Commonwealth, 230 Va. 405, 410-11, 337 S.E.2d 749, 753 (1985). In the present case, the Commonwealth has sought to establish that no warrant was required because there was an implied consent to the entry. Where the police enter a home with consent, whether implied or express, no warrant is required. United States v. Griffin, 530 F.2d 739, 742 (7th Cir.1976). The prosecution, however, bears the burden of establishing consent and this burden is heavier where the alleged consent is based on an implication. United States v. Impink, 728 F.2d 1228, 1232 (9th Cir.1984).

The standard for determining the voluntariness of a consent is found in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In that case, the Supreme Court stated: "[T]he question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent." 412 U.S. at 227, 93 S.Ct. at 2048.

Our review of the facts in the present case convinces us that the Commonwealth has failed to carry its burden of proving that Officer Hall's entry was consensual. Initially, we note that an open door does not, alone, constitute an invitation to enter. United States v. Wenzel, 485 F.Supp. 481, 483 (D.Minn.1980). Despite Officer Hall's opportunity to ask either Walls or Fox for permission to enter, he took it upon himself to do so without asking. ³ His right to do so was not established by Walls' failure to reach behind him and shut the door to the trailer before being led away in handcuffs. We do not construe this omission as an invitation to enter.

Neither can the Commonwealth establish an implied invitation or consent through the actions of Fox. As related by Officer Hall, the only thing Fox did was stand in the living room in her nightclothes and silently watch as Hall walked through the open door showing a badge and saying: "I'm Captain Hall from the Sheriff's Office in Caroline." We do not believe that these circumstances can reasonably be construed as an entry by invitation. As stated in Wenzel, "most persons when not fully clothed do not explicitly or impliedly consent to another person's entry." 485 F.Supp. at 483. The court in Wenzel made another observation relevant to the Commonwealth's contention here, namely, that if Fox had objected to the officers' entry, she should have voiced it as they were coming through the door. In response to a similar argument, the Wenzel court noted: "When ... police officers suddenly appear uninvited in one's apartment, one's initial reaction is shock, not an immediate order to leave." Id.

If anything was being implied as Officer Hall walked through the door, it was that Ms. Fox had no choice whether or not he came in. Although under Schneckloth, Hall was not required to warn Fox of...