Opinion
Record No. 2386-92-4
May 18, 1993
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA ALFRED D. SWERSKY, JUDGE.
Robert B. Condon, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellant.
Kenneth P. Troccoli, Assistant Public Defender, for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The Commonwealth appeals the trial judge's suppression ruling, which held that the investigating officer had obtained evidence in violation of the Fourth Amendment when he conducted an investigatory stop on private property without having a reasonable suspicion that Fernando Miguel Brooks was operating his motorcycle on a suspended operator's license. We hold that the stop did not violate the Fourth Amendment because the officer, immediately before the stop, observed Brooks operating a motorcycle with a broken taillight, which is a traffic infraction. Therefore, the officer had probable cause to stop and investigate and to issue Brooks a traffic summons. Accordingly, we reverse the trial judge's ruling and remand the case for such further proceedings as the Commonwealth may deem advisable.
On July 24, 1992, at approximately 1:30 a.m., Officer Joseph Pohlmeier of the Alexandria Police Department observed an individual operating a Yamaha motorcycle in Alexandria near the intersection of Montrose Street and Wesmond Drive. The motorcycle had a broken rear taillight. Officer Pohlmeier had been informed by another Alexandria police officer that Fernando Brooks, who resided in the 300 block of Wesmond Drive, was known to have a suspended operator's license and was known to drive a Yamaha motorcycle with a broken taillight.
Without activating any emergency equipment on his police cruiser, Officer Pohlmeier followed the operator of the motorcycle as he entered a public alley which parallels the south side of the 300 block of Wesmond Drive. Officer Pohlmeier observed the operator dismounting his motorcycle in the yard of 309 Wesmond Drive, which is the backyard of Brooks' home. The yard is enclosed by a four to five foot high chain link fence with a gate. Brooks had entered the yard, and the gate was closed when Officer Pohlmeier stopped his cruiser.
Officer Pohlmeier exited his cruiser, approached the gate, lifted the latch, entered the yard, and approached Brooks. He asked Brooks, "Is your license fixed or is it suspended?" Brooks replied that his license was still suspended. When asked whether he was carrying any identification, Brooks replied that he was not. Officer Pohlmeier then asked Brooks, "Are you carrying any weapons?" When Brooks equivocated before answering, Officer Pohlmeier repeated, "You're carrying a weapon, aren't you?" Brooks replied, "Yes." Officer Pohlmeier then asked Brooks if he was carrying a gun. When Brooks did not reply, Officer Pohlmeier repeated the question. Finally, Brooks admitted that he was carrying a gun. At that point, Officer Pohlmeier drew his gun, handcuffed Brooks, and recovered a loaded .45 caliber handgun from a concealed location beneath Brooks' jacket. Pohlmeier arrested Brooks and charged him with carrying a concealed weapon, second offense, and carrying a loaded firearm in a public place.
Both parties and the trial judge addressed the suppression question from the standpoint of whether Officer Pohlmeier, at the time he entered onto Brooks' property and began questioning him, had a reasonable suspicion that the operator of the motorcycle was Fernando Brooks and whether the officer reasonably suspected that Brooks had been driving the motorcycle while his operator's license was suspended. On these facts, the appropriate inquiry was not whether the information provided by the other Alexandria police officer gave Pohlmeier a reasonable basis to suspect that the driver of the motorcycle had a suspended license, but whether Pohlmeier had probable cause to stop the operator of the motorcycle for a traffic infraction committed in the officer's presence. Officer Pohlmeier personally observed the motorcycle being operated with a broken taillight, which is a traffic infraction. See Code § 46.2-1013. If a person commits a traffic offense in the presence of a police officer, the officer has the authority to make a warrantless arrest for a misdemeanor, provided he is in uniform or displays a badge of office.See Code §§ 46.2-937 and 19.2-81; Penn v. Commonwealth, 13 Va. App. 399, 402, 412 S.E.2d 189, 190 (1991), aff'd, 244 Va. 218, 420 S.E.2d 713 (1992); Durant v. City of Suffolk, 4 Va. App. 445, 447, 358 S.E.2d 732, 733 (1987).
The next question is whether Officer Pohlmeier had authority to enter upon Brooks' private property in order to investigate the traffic offense or to issue a summons, by virtue of having probable cause to make a warrantless arrest. The Fourth Amendment protects a citizen from unreasonable searches and seizures when the citizen has a reasonable expectation of privacy from governmental intrusion. Oliver v. United States, 466 U.S. 170, 177 (1984); Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring); Wellford v. Commonwealth, 227 Va. 297, 301, 315 S.E.2d 235, 237 (1984). A search or seizure without a warrant and on property where the party has a reasonable expectation of privacy is presumptively unreasonable.Payton v. New York, 445 U.S. 573, 589-90 (1980) (no warrantless arrest in the home); Oliver, 466 U.S. at 180 (Fourth Amendment protection in the area surrounding the home); see also United States v. Dunn, 480 U.S. 294, 300 (1987).
The area immediately surrounding a dwelling, the curtilage, is considered "private" and generally is protected against unreasonable, warrantless searches and seizures. Oliver, 466 U.S. at 180; Dunn, 480 U.S. at 300; Wellford, 227 Va. at 302,
315 S.E.2d at 238. The curtilage of a dwelling has been defined as "'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.'" Wellford, 227 Va. at 302, 227 S.E.2d at 238 (quoting Bare v. Commonwealth, 122 Va. 783, 795, 94 S.E. 168, 172 (1917)). Thus, the area of Brooks' yard, enclosed by a gate, is within the curtilage of his home.
The Fourth Amendment, however, "protects people, not places," and the "constitutionally protected areas" concept does not "serve as a talismanic solution to every Fourth Amendment problem." Katz, 389 U.S. at 351 n. 9. Thus, any area of the curtilage where there is no expectation of privacy, or where there is a reduced expectation of privacy, may be considered "public" for the purposes of the Fourth Amendment, and a police officer with probable cause may conduct a warrantless search and seizure in those areas in the same manner as could be done in the public realm. United States v. Santana, 427 U.S. 38, 42-43 (1976). The test to determine whether a person can claim Fourth Amendment protection in a given place depends upon whether the person has a legitimate subjective expectation of privacy in that area that society is prepared to accept as objectively reasonable. Katz, 389 U.S. at 361 (Harlan, J., concurring); see also California v. Greenwood, 486 U.S. 35, 39 (1988).
Whether a person has a reasonable expectation of privacy in a given place depends on the specific facts of each situation. As a general proposition, a person does not have a reasonable expectation of privacy in areas within the curtilage of a home that are visible to the public, accessible to the public, and at a time when the person would expect the public to have access to the particular place. 2 Wayne R. LaFave, Search and Seizure § 6.1(e) nn. 128-39 (1987 and 1993 Cum. Supp.). Thus, a person has a reduced expectation of privacy from a warrantless arrest when he is standing on the threshold of his front door or on an unenclosed porch; when he is standing inside the common hallway of his apartment complex; when he is standing inside an enclosed yard that is visible from the street; or when he is standing on the walkway in front of his home.
See United States v. Santana, 427 U.S. 38, 42 (1976) (threshold of front door to residence is "public");Koehler v. States, 444 So.2d 1032, 1033 (Fla.Dist.Ct.App. 1984) (unenclosed front porch, exposed to public view);State v. Libbey, 577 A.2d 279 (Vt. 1990) (suspect standing at screen door of residential porch).
See United States v. Barrios-Moriera, 872 F.2d 12, 14 (2nd Cir. 1989) (no legitimate expectation of privacy in common hallway of apartment complex).
See United States v. Varkonyi, 645 F.2d 453, 458 (5th Cir. 1981) (suspect standing inside fence-in yard, clearly visible from roadway, and gate was open); Johnson v. State, 724 S.W.2d 160, 162 (Ark. 1987) (suspect standing in yard within public view from road).
See State v. Ellinger, 725 P.2d 1201, 1203-04 (Mont. 1986) (suspect on walkway outside mobile home); State v. Ryea, 571 A.2d 674, 675 (Vt. 1990) (reduced expectation of privacy on driveway to premises).
Under the circumstances of this case, we hold that Brooks, who had just left the public alley and stepped beyond a gate into his yard, did not have a legitimate subjective expectation of privacy at the time in the area immediately inside his backyard that society is prepared to accept as objectively reasonable. The gate through which Brooks had entered from the public alleyway was a "normal access route for anyone visiting the premises." See Ryea,, 571 A.2d at 675 (driveway to house was semi-private because it was the normal access route for anyone visiting the premises). Brooks was clearly visible to the public from the alleyway. Although Officer Pohlmeier stepped onto Brooks' property to ask questions, Pohlmeier did not invade an area that was not easily accessible to the public or an area that provided Brooks privacy from some public intrusion. Pohlmeier could have asked the same questions of Brooks had he remained just outside the fenced area. Although the warrantless entry occurred late at night when Brooks might have a higher expectation of privacy in this semi-private area, Brooks had just arrived there and had entered the backyard from a public way. Had Brooks stepped out of his home into his yard late at night, his expectation of privacy may have been greater than it was under these circumstances. Compare Brown v. State, 392 So.2d 280, 284 (Fla.Dist.Ct.App. 1980), cert. denied, 454 U.S. 819 (1981) (warrantless arrest on suspect's back porch at 1:45 a.m. held unlawful where suspect was inside home and stepped outside in response to hearing police drive onto his enclosed premises); State v. Walker, 453 N.W.2d 127, 138 (Wis. 1990) (warrantless arrest held unlawful where suspect was standing in fenced-in backyard at 9:00 p.m.). Under these circumstances, Officer Pohlmeier did not violate Brooks' Fourth Amendment right when, after having observed Brooks commit a traffic offense, he made a warrantless entry into Brooks' backyard in order to ask him questions concerning the status of Brooks' operator's license and whether he was armed.
See Brown v. State, 392 So.2d 280, 284 (Fla.Dist.Ct. App. 1980), cert. denied, 454 U.S. 819 (1981) (person has an expectation of privacy in the area around his home "particularly" late at night (1:45 a.m.)).
The trial judge's decision to suppress the evidence obtained from Officer Pohlmeier's investigation is reversed, and the case is remanded for trial if the Commonwealth be so advised.
Reversed and remanded.