Officer’s subjective intent when he entered on the curtilage to investigate teenage drinking was irrelevant; when teenagers yelled “cops” and fled, he could follow

Officers responded to three calls about teenagers drinking in the backyard of a house. They responded and pulled up in front. As one approached, two teenagers drinking beer from clear bottles yelled “Cops!” and ran to where the others were to warn them, and the people in the backyard scattered. The curtilage is implied consent to approach on the curtilage, but the officers could pursue the fleeing drinkers into the backyard. Robinson v. Commonwealth, 2007 Va. LEXIS 14 (January 12, 2007):

IMPLIED CONSENT

The Robinsons argue that the Court of Appeals erred in holding that Officer Cox did not exceed the scope of implied consent to enter the curtilage of their home. The Robinsons do not challenge the doctrine of implied consent but, instead, challenge the standards for its application articulated by the Court of Appeals.

Elisa maintains that a police officer’s subjective intent at the moment of entry onto the curtilage of a dwelling is relevant in determining whether the officer acted within the scope of the officer’s implied consent. Elisa contends that “[o]ne impliedly consents only to the approach to the front door to knock and make inquiry.” Thus, she asserts, an officer has implied consent “to go to the entrance of the home only by the most direct route and only if he is acting in good faith to contact the owners of the property for a purpose such as asking questions of the occupants.”

George concedes that Officer Cox had implied consent to enter the driveway. George argues, however, that once Officer Cox was on the property and “actively searching for evidence of a crime within a constitutionally protected area,” Cox’s “legitimate reason” for entering the property, to contact the Robinsons, was “revoked,” thereby rendering Cox’s presence unlawful. George further argues that implied consent could not extend beyond the point where the path to the front door intersected the driveway absent the development of “a new legitimate reason.”

Both Elisa and George urge us to adopt a bright line rule that the scope of implied consent is limited to the most direct path to the front door of a dwelling to “knock and talk” with one of its residents. Elisa asserts that Officer Cox’s failure to comply with this rule rendered his initial entry onto the curtilage unconstitutional. George argues that Officer Cox’s actions became illegal when, after lawfully entering the property, he failed to proceed directly to the front door.

In resolving these issues, we first consider whether an officer’s subjective intent is relevant to a determination of whether the officer’s entry onto the curtilage of a dwelling was constitutional under the implied consent doctrine. Neither the United States Supreme Court nor this Court has addressed this question. We observe, however, that established jurisprudence concerning the constitutionality of police searches provides little, if any, support for application of a subjective standard in determining the constitutionality of an entry conducted pursuant to the doctrine of implied consent.

The United States Supreme Court has repeatedly rejected any consideration of the subjective motivation of a law enforcement officer in determining whether police searches were constitutionally infirm and, instead, has relied on an objective view of the facts and circumstances of each particular case. See, e.g., Arkansas v. Sullivan, 532 U.S. 769, 771-72 (2001) (reversing granting of motion to suppress based on officer’s alleged “improper subjective motivation”); United States v. Villamonte-Marquez, 462 U.S. 579, 584 n.3 (1983) (rejecting argument that search was unlawful because officers’ intent in boarding vessel was other than that contemplated by statute which authorized officers to board to examine vessel’s documentation); Scott v. United States, 436 U.S. 128, 138 (1978) (“[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action”).

We conclude that the holdings in the above cases, when considered collectively, counsel against consideration of a police officer’s subjective intent in determining the legality of the officer’s actions. Because a contrary interpretation of these holdings would directly conflict with the Supreme Court’s recent guidance in Stuart, we hold that the Court of Appeals did not err in concluding that Officer Cox’s subjective intent was irrelevant to a determination of whether he exceeded the scope of the implied consent in conducting the challenged search and seizures.

Comment: The issue was presented as first exceeding implied consent, but exigent circumstances was all the court really needed to talk about. This likely was the defense choice because the exigent circumstances issue was a sure loser, and the first argument at least gave a glimmer of hope. The court, however, could have just skipped the first issue and gone to the second.