Saal v. Commonwealth

72 Va.App. 413

848 S.E.2d 612

Stephen Raymond SAAL

v.COMMONWEALTH of Virginia

Record No. 1091-19-1

Court of Appeals of Virginia.

OCTOBER 13, 2020

William H. O'Brien (Doummar & O'Brien, on brief), for appellant.

Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Humphreys, Russell and AtLee

OPINION BY JUDGE WESLEY G. RUSSELL, JR.

Stephen Raymond Saal was charged with driving under the influence of alcohol and refusal to take a breath test. In a pretrial motion, Saal sought to suppress certain evidence, including statements he made to the arresting officer. After the trial court denied the motion to suppress, Saal, pursuant to Code § 19.2-254, entered a conditional guilty plea to the driving under the influence charge.¹ The conditional plea preserved Saal's ability to appeal the trial court's denial of his suppression motion.

On appeal, Saal argues that the trial court should have granted his motion to suppress because the police "violated [his] Fourth Amendment rights by entering the curtilage of his home to gather information pertaining to a criminal investigation during pre-dawn hours by conducting a ‘knock-and-talk’ without a warrant." Specifically, Saal contends that the fact that it was 12:30 a.m. when an officer knocked on the door to his home rendered the officer's conduct unreasonable for the purposes of the Fourth Amendment. In light of all of the facts and circumstances, we conclude that the officer's conduct was reasonable, and therefore, the trial court correctly denied Saal's motion to suppress. Accordingly, we affirm the judgment of the trial court.

BACKGROUND

"Under familiar principles of appellate review, we ... state ‘the evidence in the light most favorable to the Commonwealth, the prevailing party in the trial court, and will accord the Commonwealth the benefit of all reasonable inferences fairly deducible from that evidence.’ " Sidney v. Commonwealth, 280 Va. 517, 520, 702 S.E.2d 124 (2010) (quoting Murphy v. Commonwealth, 264 Va. 568, 570, 570 S.E.2d 836 (2002) ).

So viewed, the evidence establishes that, after midnight on October 1, 2017, off-duty Virginia Beach Police Officer Livers saw a vehicle jump the curb and barely miss hitting a Rite Aid sign at the intersection of Bonney Road and Rosemont Road in Virginia Beach. The vehicle then crossed four lanes of traffic and stopped in the left-turn lane of Virginia Beach Boulevard; the vehicle sat through an entire green-light cycle before driving into a Burger King parking lot. Livers followed the vehicle and observed that the right, front tire was flat. Because Livers had finished her shift, was not in uniform, was not driving a marked police car, and did not believe that the driver of the vehicle had been injured, she did not investigate further. However, she did call police dispatch to report the incident. A police record introduced as evidence established that Livers called dispatch at 12:15 a.m. Virginia Beach Police Officer Charles Loveless, a member of the Special Operations Traffic Safety Unit, was on duty and received the report resulting from Livers’ call to dispatch. Based on the license plate information that Livers had provided, Loveless was able to ascertain the address associated with the vehicle's registration and proceeded to that location, which ultimately proved to be Saal's residence.

At approximately 12:30 a.m., Loveless and his partner, Officer Jessica Little, arrived at the address associated with the vehicle. Loveless parked his police vehicle on the street near the house. From the street, Loveless confirmed that the license plate on the car in the driveway for the residence matched the license plate identified by Livers in her call to dispatch. The officers, one walking on each side of the vehicle, confirmed that the vehicle, a 2010 Lexus SUV, was not occupied, had been damaged, and had a flat right, front tire as Livers had reported. Continuing up the driveway and along a path, the officers walked to the front door of the house.

The front of the house was not lighted, and no one responded when Loveless knocked on the door and rang the doorbell. After waiting for a response without success, Loveless began to walk back down the path towards the driveway. As he did so, he noticed a light illuminating a small window and a door on the side of the house. From his vantage point on the driveway, Loveless determined that there were lights on in that area of the house.

Using a pathway that branched off from the driveway, Loveless approached the lighted side door and knocked. Saal responded and opened the door. Loveless identified himself and asked if Saal owned the vehicle in the driveway. When Saal responded that it was his SUV, Loveless asked if anyone else had been driving it. Saal indicated that no one else had been driving it, that he had driven it that evening, and that he had returned home within the hour.

Loveless then asked Saal if he knew that the SUV was damaged. Saal said no and, without any prompting by Loveless, exited the residence to look at the vehicle. After some further interaction on the driveway, Saal was arrested for driving under the influence of alcohol. He was charged with that offense and, when he refused a breathalyzer test, also was charged with refusal pursuant to Code § 18.2-268.3.

Prior to trial, Saal filed a motion to suppress, alleging that "all physical evidence and statements made was [sic] a product of an unlawful and illegal stop, search, and arrest" of Saal. Saal argued that, because the encounter occurred shortly after midnight, there was no implicit invitation for Loveless or anyone else to knock on his door, and therefore, Loveless needed a warrant to enter the curtilage of Saal's residence to knock on the door. The trial court rejected Saal's argument, found that Loveless’ actions were reasonable within the contemplation of the Fourth Amendment, and denied the motion to suppress.

Faced with the evidence of his encounter with Loveless and Little being admissible, Saal elected to plead guilty to the charge of driving under the influence. Saal, with the approval of the trial court and the consent of the Commonwealth, made his plea pursuant to Code § 19.2-254, allowing him to preserve for appeal the arguments raised in his motion to suppress.² This appeal followed, with Saal asserting in his sole assignment of error that "[t]he trial court erred in denying" the "motion to suppress" because the officers "violated [his] Fourth Amendment rights by entering the curtilage of his home to gather information pertaining to a criminal investigation during pre-dawn hours by conducting a ‘knock-and-talk’ without a warrant."

ANALYSIS

In challenging the trial court's denial of his motion to suppress, Saal "bears the burden of establishing that reversible error occurred." Mason v. Commonwealth, 291 Va. 362, 367, 786 S.E.2d 148 (2016). His argument that Loveless’ entry onto his property to knock on his doors was unreasonable for the purposes of the Fourth Amendment presents "a mixed question of law and fact[,]" Robinson v. Commonwealth, 47 Va. App. 533, 548 n.6, 625 S.E.2d 651 (2006) (en banc ), aff'd, 273 Va. 26, 639 S.E.2d 217 (2007), and thus, is subject to de novo review on appeal, id. at 544, 625 S.E.2d 651. In conducting our review, we view "the evidence in the light most favorable to the Commonwealth, the prevailing party in the trial court, and ... accord [it] the benefit of all reasonable inferences fairly deducible from that evidence." Sidney, 280 Va. at 520, 702 S.E.2d 124 (quoting Murphy, 264 Va. at 570, 570 S.E.2d 836 ). Thus, although "the ultimate question whether [Loveless’] conduct violated the Fourth Amendment triggers de novo scrutiny on appeal, we defer to the trial court's findings of ‘historical fact’ " unless such findings are "plainly wrong or devoid of supporting evidence." Barkley v. Commonwealth, 39 Va. App. 682, 689-90, 576 S.E.2d 234 (2003) (quoting Davis v. Commonwealth, 37 Va. App. 421, 429, 559 S.E.2d 374 (2002) ).

The Fourth Amendment to the United States Constitution provides, in pertinent part, that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...." Thus, by its express terms, it protects not only the individual, but also his or her things, and, most pertinent here, his or her home from unreasonable searches. Questions arise, however, as to what constitutes the "home" and whether any particular intrusion on the home by law enforcement is "unreasonable."

It long has been recognized that, for Fourth Amendment purposes, the home includes more than the interior of a residence: the amendment's protections also extend to "the land immediately surrounding and associated with the home," an area referred to as "the curtilage[.]" Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214 (1984). Because the curtilage is "considered part of home itself for Fourth Amendment purposes[,]" the amendment's protection against unreasonable searches applies to such areas. Id.

There is no dispute that Loveless and Little entered the curtilage of Saal's home when they approached his front and side doors and Loveless knocked. Such areas are "intimately linked to the home, both physically and psychologically," California v. Ciraolo, 476 U.S. 207, 213, 106 S.Ct. 1809, 1812, 90 L.Ed.2d 210 (1986), with "[t]he front porch [being] the classic exemplar" of curtilage falling within the protection of the Fourth Amendment, Florida v. Jardines, 569 U.S. 1, 7, 133 S.Ct. 1409, 1415, 185 L.Ed.2d 495 (2013). Our conclusion in this regard, however, is the beginning and not the end of the Fourth Amendment inquiry in this case.

Although the United States Supreme Court has deemed a police officer's entry upon a citizen's curtilage as "presumptively unreasonable absent a warrant[,]" Collins v. Virginia, –––...