Commonwealth v. Henderson

COMMONWEALTH OF VIRGINIA

v.WILLIAM WADE HENDERSON, III

Record No. 1665-12-3

COURT OF APPEALS OF VIRGINIA

FEBRUARY 5, 2013

UNPUBLISHED

Present: Judges Elder, Humphreys and Huff

Argued by teleconference

MEMORANDUM OPINION^* BY

JUDGE ROBERT J. HUMPHREYS

FROM THE CIRCUIT COURT OF PATRICK COUNTY

David V. Williams, Judge

Katherine Quinlan Adelfio, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellant.

Christina L. Slate, Assistant Public Defender (Office of the Public Defender, on brief), for appellee.

The Commonwealth of Virginia appeals the judgment of the trial court in granting William Wade Henderson's ("Henderson") motion to suppress any evidence obtained pursuant to the warrantless search of Henderson's curtilage on September 17, 2011. The Commonwealth argues that the trial court erred in suppressing the evidence because the investigating officer had legitimate concerns for her safety, as well as probable cause and exigent circumstances, when she inspected a suspicious van and its surrounding area, and because Henderson consented to the officer's search in the curtilage of his home. Finding no error, we affirm the judgment of the trial court.

I. BACKGROUND

"Upon appeal from a trial court's ruling on a motion to suppress, we must view the evidence in the light most favorable to the prevailing party . . . granting to him all reasonable inferences fairlydeducible from the evidence." Commonwealth v. Spencer, 21 Va. App. 156, 159, 462 S.E.2d 899, 901 (1995). In the light most favorable to Henderson, the evidence established the following.

Deputy Molly Motley of Pittsylvania County traveled to Henderson's property in Patrick County to investigate several heat pump thefts that occurred in Pittsylvania County. The thefts involved heat pumps belonging to customers of Jack Holmes, for whom Henderson had worked. Henderson alone had performed services as Holmes' employee for several victims reporting stolen heat pumps.

Deputy Motley testified that, as she approached Henderson's mobile home in her patrol car, she saw a white van. However, Henderson testified that the white van in the backyard was not visible to someone driving towards the trailer on the driveway. Deputy Motley parked her patrol car behind three other vehicles that were in front of the trailer. Deputy Motley walked around her car, twelve to fifteen feet to a point where she could see the van and at that point she also saw a heat pump sitting next to the van. Deputy Motley was interested in the van because of reported break-ins associated with an older white work van with a ladder rack, and it "also kind of heightened [her] awareness, as far as officer safety." Deputy Motley passed the front door of the mobile home and went around to the back to the location where the van was parked. The back doors of the van were open, and multiple heat pump units were sitting outside the van and adjacent to the mobile home. At that point, Deputy Motley took twenty pictures of the van and the heat pump units. Some of the pictures were close up to the heat pumps and the van, others were from a distance.

After taking the first set of pictures, Deputy Motley knocked on the front door and Henderson let her in. Deputy Motley asked Henderson what he could tell her about all the air conditioners out back. Henderson said that he was turning some of them in "for Xmas bonus, some of them not." Deputy Motley explained that she was looking into air conditioner thefts, all of whichinvolved units that had been serviced by J. Holmes. Deputy Motley gave Henderson her phone number and said she would appreciate any help he could give. The conversation continued:

Deputy Motley: . . . and if you don't mind I'm going back here and take a few pictures of the air condition units and all that ok?

Henderson: You know I mean I wish you didn't cause Jack[']s going to know and it's going to be bull shit behind it.

Deputy Motley: We're not talking, this has nothing to do with Jack. You know Jack has not filed a complaint I mean.

Henderson: I mean the best thing to do on the [sic] now you see is get a number.

Deputy Motley: Uh hum.

Henderson: Cause you can look at a picture and say well that is it.

* * * * * * *

Deputy Motley: That's all the invoices there. Uh but anyway if you don't mind I'll just take a few pictures of like I say this is just for our records, it's not as far as I'm concerned Jack Holmes, he's not filed a complaint. These home owners that have had air conditioners stolen filed the complaint so uh if it's not their air conditioners it's not anything.

Henderson: Yeah

Deputy Motley: You know?

Henderson: Yeah

Deputy Motley: Yeah not anything to do with Jack Holmes so

Henderson: ----when we was turning them in

Deputy Motley: Uh hum.

Henderson: And we were suppose[d] to be splitting, I'm still trying to get my cut of that.

* * * * * * *

Henderson: But uh, Jack had serial numbers for every one of them.

Deputy Motley: Right. Yeah that is what I'm saying I mean you know I'm just trying to take pictures, if uh that's not necessarily we just trying to follow up leads and stuff so uh have you been doing installs very long or

* * * * * * *

Henderson: Yeah. What do you do take the numbers and run them back with what Jack[']s got?

Deputy Motley: No not well

Henderson: Just going to show them to the home owners?

Deputy Motley: It depends on where they bought them, whoever has original records, you know we just compare it to that. Probably just I mean at this point we would probably just ask the home owners cause they would have to get the serial number to get their insurance. . . .

When Deputy Motley exited Henderson's home the recorded conversation ended and she began taking a second set of pictures of the van and air conditioner or heat pump units, including some close up pictures of the serial numbers of the units. Henderson walked outside with Deputy Motley and saw her taking the pictures. Deputy Motley testified on cross-examination that Henderson never told her that she could take any pictures.

On Henderson's motion to suppress the evidence, the trial court found that while probable cause was present, exigent circumstances justifying a warrantless search were lacking, as "Deputy Motley could have radioed for backup in order to obtain a search warrant" to ensure evidence was preserved. The trial court found that there was no express consent because Henderson replied "I wish you didn't" when Deputy Motley asked to take pictures. The trial court further found that because Deputy Motley had taken pictures before speaking to Henderson, "any indicia that he consented to further photos would not be consent that meets the standard of being 'freely and voluntarily given.' Deer v. Commonwealth, 17 Va. App. 730 (1994)." Finally, the court found that the plain view doctrine did not permit the taking of the photos because Deputy Motley did not have"a lawful right to access the units or the van because of their location on the property," as her approach to the van and the units "exceeded the scope of the implied consent doctrine." The court granted Henderson's motion to suppress.

II. ANALYSIS

In reviewing a suppression motion on appeal, we defer to the trial court's findings of historical fact, but we review de novo the ultimate question of whether the officer violated the Fourth Amendment. Slayton v. Commonwealth, 41 Va. App. 101, 105, 582 S.E.2d 448, 449-50 (2003).

"'The exclusionary rule operates . . . against evidence seized and information acquired during an unlawful search or seizure . . . [and] against derivative evidence discovered because of the unlawful act.'" Gilpin v. Commonwealth, 26 Va. App. 105, 112, 493 S.E.2d 393, 397 (1997) (quoting Watson v. Commonwealth, 19 Va. App. 659, 663, 454 S.E.2d 358, 360 (1995)). "Thus, evidence must be suppressed when it is 'come at by exploitation of [the initial] illegality rather than by means sufficiently distinguishable to be purged of the primary taint.'" Id. (quoting Hall v. Commonwealth, 22 Va. App. 226, 229, 468 S.E.2d 693, 695 (1996)). To trigger the exclusionary rule, "the challenged 'police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.'" Washington v. Commonwealth, 60 Va. App. 427, 436, 728 S.E.2d 521, 525 (2012) (quoting Herring v. United States, 555 U.S. 135, 144 (2009)).

"[T]he privacy interest in one's home has few equals," and the Fourth Amendment serves to protect that interest. Kyer v. Commonwealth, 45 Va. App. 473, 480, 612 S.E.2d 213, 217 (2005). Additionally, the "curtilage area immediately surrounding a private house has long been given protection as a place where the occupants have a reasonable and legitimate expectation of privacy that society is prepared to accept." Dow Chem. Co. v. United States, 476 U.S. 227, 235 (1986)."'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.'" Patler v. Commonwealth, 211 Va. 448, 451, 177 S.E.2d 618, 620 (1970) (quoting Bare v. Commonwealth, 122 Va. 783, 795, 94 S.E. 168, 172 (1917)).

The Commonwealth withdrew its first assignment of error concerning Henderson's standing to object to the photographs taken at 1008 Mountain View Church Road, where Henderson lived.

A. Officer Safety

The Commonwealth's second assignment of error is that the trial court erred in ruling that "Deputy Molly Motley did not have legitimate concerns for officer safety when she inspected the suspicious van and its surrounding area." The Commonwealth references two pages in the record where this assignment of error is preserved. The first cite is to Deputy Motley's testimony about seeing the white van next to Henderson's residence:

A. I was parked in line with the trailer, with the mobile home, and when I saw the

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