Vaughn v. Commonwealth – July 28, 2009

Vaughan contends the CAV improperly “expand[ed] the implied consent principle of Robinson v. Commonwealth, 273 Va. 26, 639 S.E.2d 217 (2007) to allow a police officer to go beyond the pathway to the front door and to enter other areas of the curtilage of a dwelling to attempt to contact a resident for investigative purposes.”

Police went to Vaughn’s home to ask him about his involvement in larcenies from a scrap yard. When Vaughn didn’t answer the front door, the officer went around to the back of the house to see “if anybody might be around the back.” In the backyard, the officer observed items stolen from the scrap yard.

The trial court denied Vaughn’s motion to suppress, applying the plain view doctrine. The CAV affirmed the trial court’s judgment, concluding that pursuant to the implied consent, i.e., “knock and talk,” doctrine, the officer was lawfully in Vaughn’s backyard when he saw the stolen property in plain view. The CAV cited Robinson v. Commonwealth, 273 Va. 26, 639 S.E.2d 217 (2007) as authority for its decision.

The Commonwealth argues Vaughan’s assignment of error was not preserved in the trial court.

From
The Court of Appeals of Virginia (published opinion)

Counsel
S. Jane Chittom (Office of the Appellate Defender) for appellant.

William C. Mims and Josephine F. Whalen(Office of the Attorney General) for appellee.

Assignments of Error

1. The Circuit Court erred in denying appellant’s motion to suppress the fruits of an unlawful entry and search of the backyard of appellant’s residence.

2. The Court of Appeals erred in expanding the implied consent principle of Robinson v. Commonwealth, 273 Va. 26, 639 S.E.2d 217 (2007) to allow a police officer to go beyond the pathway to the front door and to enter other areas of the curtilage of a dwelling to attempt to contact a resident for investigative purposes.

3. The Court of Appeals erred in holding that the law enforcement officer in this case had a right to enter Vaughn’s backyard under an implied consent theory without a warrant and without any exigent circumstances.

4. Assignment of Cross-Error: 1. The Court of Appeals erred in failing to find Vaughn’s challenge to the officer’s authority to enter the yard procedurally defaulted pursuant to Rule 5A:18.

5. Assignment of Cross-Error: 2. The Court of Appeals erred in failing to find procedurally defaulted pursuant to Rule 5A:18 Vaughn’s claim that his confession to the July 26, 2006 larceny was derivative of the allegedly unlawful seizure from his yard of evidence of the August 7, 2006 larceny.

6. Assignment of Cross-Error: 3. The Court of Appeals erred in failing to find Vaughn’s confession was not the result of the officer’s entry into the backyard.

Date Granted
7-21-2009