COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Overton Argued at Richmond, Virginia
ERNEST L. DOUGLAS, S/K/A ERNEST LEE DOUGLAS MEMORANDUM OPINION * BY v. Record No. 2470-95-2 JUDGE JAMES W. BENTON, JR. AUGUST 5, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY George F. Tidey, Judge
Andrea C. Long (David E. Boone; Boone, Beale, Carpenter & Cosby, on brief), for appellant. Marla Graff Decker, Assistant Attorney General (James S. Gilmore, III, Attorney General; Daniel J. Munroe, Assistant Attorney General, on brief), for appellee.
Ernest L. Douglas was charged with possession of marijuana
and possession of a firearm after being convicted of a felony.
At the conclusion of the bench trial, the trial judge found
Douglas guilty of both charges. Douglas contends that the trial
judge erred in denying his motion to suppress evidence and his
motion to strike the evidence on the firearm charge. Because we
hold that the police made an unlawful, warrantless search, we
conclude that the evidence should have been suppressed and we
reverse the convictions.
I.
The evidence proved that on October 5, 1994, Officer Crowder
of the Henrico County Police received a "Crime Stoppers tip" from
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. his supervisor. The tip informed Crowder that Douglas was a
convicted felon, that Douglas resided at 1400 Mountain Road, and
that a recreational vehicle ("RV") was at that address. The tip
also stated that Douglas had another person buy him two rifles at
a gun show, that Douglas had been test-firing the weapons at the
1400 Mountain Road address, and that Douglas had approximately
240 rounds of ammunition. Officer Crowder verified that Douglas
was a convicted felon. Officers Crowder and Parker went to 1400 Mountain Road at
4:30 that afternoon. The officers drove through an open gate of
a fence surrounding the property and parked outside a warehouse.
Officer Crowder searched on the ground outside the warehouse and
found cartridges that had been fired from a rifle. Through an
open door to the warehouse, Officer Crowder saw an RV parked
inside the warehouse. After he obtained the license plate number
on the RV and used the information to verify that Douglas owned
the RV, Officer Crowder called for additional officers to assist
him.
Sergeant Bishop and two other officers arrived to assist
Officers Crowder and Parker. Sergeant Bishop, who arrived as
darkness was approaching, entered the property without his
headlights on. All of the officers were in uniform, drove
separately in individual police cars, and concealed their
presence on the property. When they were all assembled, two
officers went to the rear of the warehouse and two others joined
- 2 - Officer Crowder at the front of the warehouse. Officer Crowder
and the two officers with him entered the warehouse. The
warehouse was dark inside, but as the officers approached the RV,
a motion detector light came on. After the light revealed their
presence, the officers announced that they were Henrico police
officers and told Douglas to step outside the vehicle. Officers
Crowder and Parker had their guns drawn. When Douglas exited the
RV, the officers handcuffed him and frisked him. Officer Crowder
testified that he told Douglas that he was not under arrest and
that he was being secured to protect the safety of the officers. Officer Crowder then asked Douglas where the weapons were
stored. Douglas responded that weapons were in the warehouse but
that he did not know their exact location. He said that the guns
were possibly next to the office or in the office. After Officer
Crowder looked for the guns and failed to find them, he read
Miranda warnings to Douglas and again asked Douglas where the
guns were. Douglas repeated that if they were anywhere, they
would be in the office.
Douglas told the officers that his son, Earl Douglas, owned
the business. Douglas also told Officer Crowder that he owned
the RV and a pickup truck that was on the premises. Officer
Crowder testified that he asked Douglas "if he had any problem if
[Officer Crowder] searched the recreational vehicle, along with
this pickup truck." He also told Douglas "Look, I'm looking for
guns, I don't care about a little reefer." Officer Crowder
- 3 - testified that after he disclaimed interest in the marijuana,
Douglas told him that marijuana was inside the RV and indicated
that he "did not have a problem with" the officers searching the
RV. When Crowder searched the RV, he found a green plant-like
material, which he seized. He later charged Douglas for
possession of the marijuana.
The officers found no guns in the RV. They also searched
the pickup truck but did not find the weapons. After the
officers completed their search of the vehicles, the officers
removed the handcuffs. Officer Crowder testified that Douglas was handcuffed for a
period of five to seven minutes. Douglas testified, however,
that he was handcuffed for at least an hour and a half. Douglas
also testified that when the officer told him it would take
several hours to get a search warrant, he consented to the search
of the vehicles because he was handcuffed in a position that
caused pain to his recently broken collar bone. Sergeant Bishop
testified that Douglas was handcuffed for five to ten minutes and
that Douglas was no longer in handcuffs when Douglas' son
arrived.
At Douglas' suggestion, the officers contacted his son.
Officer Crowder testified that the police called Douglas' son
fifteen minutes after they first arrived on the premises. Thirty
minutes to an hour after the officers initially arrived, Douglas'
son arrived. Douglas' son testified that when he arrived,
- 4 - Douglas was still in handcuffs. Douglas' son also testified that
when he arrived, Officer Crowder approached him outside the
warehouse and asked, "Where are the guns?" In response, Douglas'
son pointed toward the back of the warehouse and stated that the
guns were on a cart under a blanket. The officers went into the
warehouse to the cart, which was located ten or more feet away
from Douglas' RV, and seized the guns. Douglas' son testified
that the officers never asked for his permission to enter the
warehouse or to search for the guns and that he never gave them
permission to enter the warehouse. The officers arrested Douglas for possession of the
firearms. On the way to the Public Safety Building, Officer
Crowder asked Douglas "about the guns, if he didn't know anything
about them, why they were there, why he was there, the close
proximity of [the guns] to the Winnebago." He testified that
Douglas responded, "I had my son purchase the weapons for me for
protection in the future when there will be no police and there
will only be one way to protect yourself and family."
The trial judge found that the expectation of privacy
Douglas had in his RV did not extend to the warehouse and that
the officers did not conduct an illegal search of the warehouse.
In addition, the trial judge found that because the tip
concerned weapons, the handcuffing and detention of Douglas was
"appropriate and not illegal." The trial judge thus denied the
motion to suppress.
- 5 - At trial, Douglas' son testified that he, not Douglas, owned
the guns and that his friend, Ron Rosel, purchased the guns for
him. The trial judge convicted Douglas of possession of
marijuana and possession of a firearm after being convicted of a
felony.
II.
CARTRIDGES
Douglas argues that the police violated his Fourth Amendment
rights by entering onto the fenced-in land at 1400 Mountain Road
without a search warrant. Douglas, who worked for his son and
lived on the property in his RV, further argues that because the
land was "private," he had a reasonable expectation of privacy in
the entire property. Therefore, he contends that the rifle
cartridges found outside the warehouse should have been
suppressed. We agree. The Fourth Amendment recognizes reasonable expectations of
privacy in private commercial property. See Marshall v. Barlow's, Inc., 436 U.S. 307, 311 (1977). The rule that
"warrantless searches are generally unreasonable . . . applies to
commercial premises as well as homes." Id. at 312. "'[T]he
businessman, like the occupant of a residence, has a
constitutional right to go about his business free from
unreasonable official entries upon his private commercial
property.'" Dow Chemical Co. v. United States, 476 U.S. 227, 237
(1986) (citation omitted). It is true that the Supreme Court has
- 6 - recognized that a business, by its nature, may open itself to intrusions that would not be permissible in a purely private context. The Court has stated: "A government agent, in the same manner as a private person, may accept an invitation to do business and may enter the premises for the very purposes contemplated by the occupant."
On the other hand, the Court has limited the scope of this business-premises doctrine. The Court . . . [has] said: "Of course, this does not mean that, whenever entry is obtained by invitation and the locus is characterized as a place of business, an agent is authorized to conduct a general search for incriminating materials . . . ." The Court has also held that a warrant is necessary for a search of the portions of commercial premises which are not open to the public and government agents cannot attempt to justify a warrantless search on a claim of a reduced expectation of privacy on business premises when the agents do not see the items as a customer would ordinarily see them.
United States v. Swart, 679 F.2d 698, 701 (7th Cir. 1982)
(citations omitted). Thus, when appropriate indicia manifesting
an expectation of privacy exist, a limited area of "the curtilage
of the business buildings" is subject to Fourth Amendment
protection. Id. at 702.
The evidence proved that the property located at 1400
Mountain Road was leased to Douglas' son, who operated a
warehouse for his business, and to Keith Boyer, who operated a
commercial lawn care business. Both Douglas' son and Boyer
testified that the property was not open to the public for
business and that neither business had customers who came to that
location. The land where the warehouse was located had a fence
- 7 - around it. In addition, several "no trespassing" signs were
posted at various locations on the property, including one at the
gate entrance. The entrance gate was normally left open from
7:00 a.m. until 4:00 p.m., and it was locked at night.
The evidence proved that Douglas worked for his son and had
a key to the premises. Douglas resided on the property with his
son's knowledge and permission. In addition to keeping his
pickup truck and RV on the premises, Douglas stored other
personal belongings in the warehouse. Given these circumstances, we hold that the evidence proved
that Douglas had the right to exclude others from the fenced-in
property. Therefore, he had a reasonable expectation of privacy
in the warehouse and its curtilage and could object to the
warrantless entry made by the police. See Commonwealth v. Ealy,
12 Va. App. 744, 751, 407 S.E.2d 681, 685-86 (1991).
"Once [Douglas] established he had a legitimate expectation
of privacy in the place searched, the Commonwealth had the burden
of proving that the search was legal. 'Generally, searches
conducted without a warrant are per se unreasonable and, therefore, unlawful under the fourth amendment.'" Id. at 751,
407 S.E.2d at 686 (citation omitted).
When the police entered onto the property they searched the
grounds and found spent cartridges. No evidence proved exactly
where on the grounds they found the cartridges. No evidence
proved the precise distance between the fence and the warehouse.
- 8 - Citing Parker v. McCoy, 212 Va. 808, 188 S.E.2d 222 (1972),
the Commonwealth argues that the police had a right to enter the
fenced-in area and search the property. We do not agree that
Parker sanctions the search in this case. Although in Parker the
Supreme Court stated that "[a] police officer has a law-given
right . . . in the line of his duty to enter a business
establishment to observe at least what is not hidden from view in
the establishment," id. at 811, 188 S.E.2d at 224-25, that ruling
was made on facts that proved the officer entered a poolroom with
a lunch counter that was open and serving the public. See id. at
809, 188 S.E.2d at 223.
The facts in this case proved, however, that the property at
1400 Mountain Road was not open to customers and the business did
not serve customers at that location. The evidence proved that
the property was used by the commercial enterprise for functions
that were unrelated to its customer services. Indeed, the owner
testified that no customers were served from that location and
that the warehouse was used for the non-customer operations of
the business. Moreover, the "no trespassing" signs and the fence
were reasonable indications that visitors were not welcome on the
land and manifested a reasonable expectation of privacy.
Furthermore, the evidence failed to prove that when the officers
entered the property the officers saw the cartridges in a place
that was not hidden from view. The record does not establish the
distance from the fence to the building or otherwise indicate the
- 9 - area the police searched. Thus, the evidence failed to prove
that the officers found the cartridges in an area outside the
curtilage of the warehouse.
"It is well settled that the burden is on the Commonwealth
to establish an exception to the warrant requirement." Walls v.
Commonwealth, 2 Va. App. 639, 645, 347 S.E.2d 175, 178 (1986);
see United States v. Jeffers, 342 U.S. 48, 51 (1951). The
evidence in this record failed to prove that the police were
lawfully in a place they were entitled to search when they
entered onto the property and found the cartridges. Thus, the
cartridges were unlawfully seized and the trial judge erred in
admitting them into the evidence. III.
GUNS AND MARIJUANA
The Commonwealth also asserts that the warehouse was a
public business and that, therefore, the police were entitled to
enter the warehouse. We disagree. The United States Supreme
"Court has already held that warrantless searches are generally
unreasonable, and that this rule applies to commercial premises
as well as homes." Marshall, 436 U.S. at 312. The evidence at
trial proved that the warehouse was not open to the public and
customers did not come to the 1400 Mountain Road address. The
business operations conducted by employees of the business at the
1400 Mountain Road address were unrelated to customer service.
The evidence also proved that the business' administrative
- 10 - office, the place where customers' telephone calls were received,
was located at an entirely different location.
The Commonwealth has failed to prove that the officers had a
right to enter the warehouse without invitation. "The owner of a
business has not, by the necessary utilization of employees in
his operation, thrown open the areas where employees alone are
permitted to the warrantless scrutiny of Government agents." Id.
at 315. That the police could see inside the warehouse when they
searched the grounds did not give them a right to enter the
warehouse. See Wilson v. Health & Hospital Corp., 620 F.2d 1201,
1212 (7th Cir. 1980) (citing Wattenburg v. United States, 388
F.2d 853, 857 (9th Cir. 1968)). A business is not required to
board its windows and doors in order to obtain an expectation of
privacy. See Wilson, 620 F.2d at 1212. Therefore, we hold that
the evidence failed to prove the officers' entry into the
warehouse was lawful.
The Commonwealth argues that Douglas' son consented to the
search that revealed the guns and that his consent was an
independent act of free will that purged the taint of the initial
illegal entry. We disagree. In Walls, the Commonwealth argued that the defendant's girlfriend's consent purged the taint of the
unlawful entry. See 2 Va. App. at 652, 347 S.E.2d at 182. This
Court rejected that argument and ruled that because "the consent
was not obtained until after the illegal entry, the consent
- 11 - itself was a fruit of the poisonous tree unless the Commonwealth
can show that it was obtained through an independent act of free
will, rather than by means of the illegal entry." Id. at 652,
347 S.E.2d at 182-83. To determine whether the consent purged
the taint, we considered (1) the voluntariness of the consent,
(2) the temporal proximity of the illegal entry to the consent,
(3) the presence of intervening circumstances, (4) the purpose
and flagrancy of the police misconduct, and (5) the "declarant's"
knowledge of the right to withhold consent. See id. at 653, 347
S.E.2d at 183.
The evidence in this record proved that the officers never
asked Douglas' son for permission to search the warehouse. The
officers merely asked where the guns were. When Douglas' son
replied by stating that the guns were on a cart, the officers
went into the warehouse, the place they had unlawfully entered,
and seized the guns.
When the Commonwealth seeks to justify a search based on a
consent that is based upon implication, the Commonwealth has a
heavier burden of proof. See Ealy, 12 Va. App. at 752, 407
S.E.2d at 686. Moreover, the "burden [to prove consent] cannot
be discharged by showing no more than acquiescence to a claim of
lawful authority." Bumper v. North Carolina, 391 U.S. 543,
548-49 (1968). Douglas' son's act of answering the officers'
questions does not purge the taint of the prior illegality
because the Commonwealth has failed to prove that he freely
- 12 - consented to the search.
The passage of up to an hour between the unlawful entry and
the alleged consent is also insufficient to dissipate the taint.
See Brown v. Illinois, 422 U.S. 590, 604-05 (1975) (stating that
a two hour lapse between an unlawful arrest and a confession was
insufficient to purge the taint). Moreover, Douglas' son's
arrival at the warehouse was not an intervening circumstance that
could purge the taint. Because the officers' decision to call
Douglas' son "'was prompted by what they had [learned] during the
initial [unlawful] entry,'" Ealy, 12 Va. App. at 757, 407 S.E.2d at 689 (citation omitted), his arrival and purported consent were
tainted by the unlawful entry.
In addition, it is clear that the very purpose of the entry
was to obtain consent to search the warehouse. Immediately after
the officers detained Douglas, they asked him where the guns were
and began searching the warehouse. See Walls, 2 Va. App. at 655,
347 S.E.2d at 184. "It cannot be said, therefore, that the
misconduct . . . was unrelated to the [alleged] consent." Id.
Finally, the record reveals that Douglas' son was never
informed of his right to withhold consent. Based on these
circumstances, we hold that the search of the warehouse was
tainted by the illegal entry of the warehouse. Therefore, the
guns the police found should have been suppressed.
In addition, we hold that the marijuana obtained after
Douglas consented to the search of the RV should have been
- 13 - suppressed. Douglas' consent to the search of his RV was tainted
by the unlawful entry into the warehouse. See Walls, 2 Va. App.
at 652-53, 347 S.E.2d at 182-83. First, the voluntariness of
Douglas' consent is questionable. The police officer testified
that before Douglas consented he told Douglas that the police
were not concerned about any marijuana that was present. Second,
the consent occurred during the illegal entry. Thus, the events
could not be more closely connected in time. Third, there were
no intervening circumstances or events that would break the chain
of causation. The consent and the illegal entry were part of the
same interaction between Douglas and the police. Fourth, the
police misconduct was directly related to Douglas' consent to the
search of the RV because the very reason for the entry into the
warehouse was to search the RV in addition to the warehouse.
Finally, no evidence proved that Douglas was aware of his right
to refuse to allow the officers to search the RV. Thus, under
the factors in Walls, the search of the RV was tainted by the officers' unlawful entry into the warehouse. See id.
Accordingly, we hold that the trial judge erred in admitting the
marijuana into the evidence.
IV.
DOUGLAS' STATEMENTS
Douglas argues that when the officers handcuffed him inside
the warehouse, he was unlawfully arrested. Thus, Douglas argues,
his statements should have been suppressed. Douglas also argues
- 14 - that his statements should have been suppressed on the ground
that they were tainted by the illegal entry into the warehouse.
Because we agree that the statements were tainted by the unlawful
search, we need not discuss the detention and handcuffing of
Douglas.
"[T]he prosecution bears the burden of showing that the
confession was not obtained by exploitation of the illegal
[entry]." Hart v. Commonwealth, 221 Va. 283, 288, 269 S.E.2d
806, 809 (1980). We hold that the Commonwealth failed to meet
its burden. Although the statements Douglas made inside the
warehouse may arguably have been voluntary, they were made during
an unlawful search. Thus, as with the marijuana, the statements
were tainted by the unlawful search. No intervening
circumstances occurred that would break the chain of causation.
The fact that the officers gave Douglas his Miranda warnings does not per se break the causal chain between the illegal entry and
the statement. See id. Thus, the statements Douglas made in the
warehouse should have been suppressed.
The statement Douglas made while in the police car was also
tainted. Although the illegal search had ended, the evidence
proved that the officers obtained the confession by questioning
Douglas about the evidence they had unlawfully obtained at the
warehouse. Thus, the "confession was . . . induced by the
exploitation of the unlawful search" of the warehouse, id. at
289, 269 S.E.2d at 810, and the statement should have been
- 15 - suppressed.
We therefore hold that the trial judge erred in admitting
into the evidence Douglas' statements and the items seized in the
unlawful searches. Accordingly, we reverse the suppression
rulings and remand the case to the trial court.
Reversed and remanded.
- 16 - Annunziata, J., concurring in part and dissenting in part.
On appeal, Douglas bears the burden of showing that the
trial court's denial of his motion to suppress was plainly wrong
or without evidence to support it. Fore v. Commonwealth, 220 Va.
1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017
(1980). The evidence must be reviewed in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
Douglas resided in an RV which he parked inside a warehouse.
The warehouse was used commercially, as part of the business
operation of Douglas' son. Douglas was an employee of his son's
business. A fence enclosed the compound on which the warehouse
was located. In addition to the business operation of Douglas'
son, the enclosed compound housed another, unrelated commercial
enterprise.
I concur in the opinion of the majority that Douglas
maintained a reasonable expectation of privacy in the warehouse
and that the record contains no evidence to support a finding
that the police were justified in entering it. Douglas'
expectation of privacy in the warehouse derived from his rather
unique relationship to it. Douglas both lived and worked inside
the warehouse, which was leased to his son, who was Douglas'
employer. The warehouse contained both personal property of
Douglas and employment-related equipment. Douglas had a key to
- 17 - the warehouse and was entitled to exclude others from it.
I disagree with the majority's conclusion, however, that
Douglas maintained a reasonable expectation of privacy in the
outer compound on which the warehouse was located. The compound
was not leased exclusively to Douglas' son. Instead, it was
shared by another commercial enterprise. Neither Douglas, nor
even his son, had the right to exclude others from the outer
compound. The compound itself was surrounded by a fence, but the
gate to the compound, through which the police officers had seen
a regular ingress and egress of traffic, was open during regular
business hours and at the time the officers entered the property
through it. While customers did not frequent the compound to
transact business with either Douglas' son or the other
commercial enterprise, that fact was a function of the nature of
the commercial enterprises themselves, and is not evidence of the
proprietors' intent to exclude the public from the compound.
Indeed, the evidence revealed that, although the compound was
posted with "No Trespassing" signs, the signs were intended to
ward off thieves and vandals, not to exclude the public at large. Compare, e.g., United States v. Hall, 47 F.3d 1091 (11th Cir.),
cert. denied, 116 S. Ct. 71 (1995), with United States v. FMC
Corp., 428 F. Supp. 615 (W.D.N.Y. 1977); see also Air Pollution
Variance Board v. Western Alfalfa Corp., 416 U.S. 861 (1974); Dow
Chemical Company v. United States, 476 U.S. 227 (1986).
Based on these facts, I believe Douglas did not have a
- 18 - reasonable expectation of privacy in the outer compound.
Accordingly, since no "search" of the compound for purposes of
the Fourth Amendment occurred in the present case, the trial
court properly refused to suppress the evidence the police
obtained in plain view from within the compound, viz., the shell
casings and Douglas' license plate number.
- 19 -