Opinion
Criminal Docket No.: CR15-2978
07-27-2016
Re: Commonwealth of Virginia v. Valerie Shorter
Margaret P. Kelsey, Esq. Office of the Commonwealth's Attorney City of Norfolk 800 East City Hall Avenue, Suite 600 Norfolk, Virginia 23510 Andrew Protogyrou, Esq. London C. Crounse, Esq. Protogyrou & Rigney, P.L.C. 500 East Main Street BB&T Building, Suite 1520 Norfolk, Virginia 23510
Margaret P. Kelsey, Esq.
Office of the Commonwealth's Attorney
City of Norfolk
800 East City Hall Avenue, Suite 600
Norfolk, Virginia 23510 Andrew Protogyrou, Esq.
London C. Crounse, Esq.
Protogyrou & Rigney, P.L.C.
500 East Main Street
BB&T Building, Suite 1520
Norfolk, Virginia 23510 Dear Counsel:
Today the Court rules on the motion filed by Defendant Valerie Shorter ("Shorter") seeking to suppress all evidence and statements made by Shorter stemming from an allegedly unlawful entry into, and search of, her home. The issues before the Court are as follows: (1) whether police entry through the "exterior" door of Shorter's apartment into the stairway leading to her apartment unit (the "Stairway") constituted a search for purposes of the Fourth Amendment; (2) if it did, whether the police were entitled to enter the Stairway as part of a protective sweep of Shorter's apartment; and (3) whether Shorter gave valid consent for a protective sweep of her apartment unit. The court finds, based on the totality of the circumstances, as follows: (1) Shorter had a reasonable expectation of privacy in the Stairway such that entry by law enforcement through her exterior door was a search for Fourth Amendment purposes; (2) the police were not entitled to enter the Stairway as part of a protective sweep of Shorter's apartment; and (3) Shorter did not provide valid consent for a protective sweep of her apartment unit. Shorter's motion to suppress therefore is GRANTED.
Background
On July 2, 2015, Norfolk Police prepared to execute arrest warrants on Lamont Stallings ("Stallings") at the apartment of his girlfriend, Shorter (the "Apartment"), where Stallings was believed to be residing. (Tr. 9, 22.) The police did not know Shorter's identity at the time and only knew her—based on information from an informant—as "a black female named Nickie." (Tr. 24.) Law enforcement had not sought a warrant to search the Apartment when they obtained the Stallings arrest warrants because they believed that they lacked probable cause. (Tr. 23.) The Apartment is located at 511 Ashlawn Drive in the City of Norfolk, is in a two story building comprised of upstairs and downstairs apartments, and consists of the Stairway and an upstairs unit identified as Unit #6. (Tr. 11, Def. Ex. 4.) The downstairs apartments in the complex are entered directly from the outside. (CW Ex. 1.) To reach an upstairs apartment, one must traverse through an exterior door, up a staircase, and then through an interior apartment door. (Id.) Some of the upstairs apartments share an exterior door and stairway with a second upstairs apartment, but Shorter's apartment was an end unit and therefore had an exterior door and stairway to itself—a fact known by the police. (Tr. 11, 110-11.) Numbers on the outside of the building near the exterior doors indicate the units serviced by that door; the number near Shorter's exterior door is marked "6." (CW Ex. 1.) The doors leading to the downstairs apartments, as well as the interior doors of the upstairs apartments, are solid and open inward into their corresponding apartment units. (Tr. 127; CW Ex. 1, 2.) The exterior doors associated with the upstairs apartments each have a deadbolt, open outwards, and contain large windows on their upper halves, which the apartment complex landlady, Cherriann King ("King"), described as providing a "safety factor." (Tr. 127; CW Ex. 1, 2.)
King testified that the exterior doors are designed to be locked "to keep undesirable people out of the hall and off the stairs." (Tr. 128.) The units' mailboxes are external to the building, so access to them does not require entry into the stairways to the upstairs units. (CW Ex. 1, 2.) King testified that, other than Shorter, only she, her husband, and her "maintenance man" possessed keys to the exterior and interior doors of the Apartment prior to Shorter changing the locks in violation of her lease; she also testified that police would be granted access to the stairway "if they came." (Tr. 128-29, 131.) Other tenants do not have keys to exterior doors to stairways not connected to their apartments, and the stairways—if the exterior doors are locked—are not accessible by the general public or delivery personnel. (Tr. 131.) Shorter apparently kept her exterior door locked at times, as King testified that at one point she discovered Shorter's exterior door locked via a deadbolt for which King did not have the key, and she subsequently asked Shorter to reinstall the original lock. (Tr. 130.) At another time, King went to the Apartment to talk with Shorter, and when she tried to open Shorter's exterior door, King found herself "basically locked out of my building." (Tr. 133-34.)
In preparation for the arrest, Investigator T. Sterling surveilled the Apartment for approximately three and a half hours earlier that day. (Tr. 32.) Norfolk Police Special Operations Team ("SOT") personnel were positioned nearby to move in and assist in the arrest of Stallings. (Tr. 32-33.) Investigator Sterling did not observe anyone enter or exit the apartment until 4:30 p.m., when Shorter and Stallings pulled their vehicle (the "Vehicle") into the Apartment parking lot and subsequently entered the Apartment. (Id.) When the Vehicle arrived, Investigator Sterling "advised the [SOT] . . . to move in and make the arrest of [Stallings]." (Id.) Before the SOT could approach the Apartment to execute the arrest warrants, Stallings "had already entered the apartment," so the SOT "backed up [and] went back to their location. [Law enforcement personnel] were hoping that [Stallings] would leave again so they could attempt to make the arrest again." (Tr. 33.) The plan for the arrest was "to take [Stallings] down before he go[t] inside the [Apartment]." (Tr. 59.) Five minutes later, Stallings exited the Apartment and headed toward the Vehicle. (Id.) Investigator Sterling signaled the SOT again, and Stallings was successfully taken into custody near the Vehicle, which was approximately five to seven feet from the exterior door of Shorter's apartment. (Tr. 59, 116.) Between twelve and fifteen law enforcement officers were present to carry out Stallings's arrest. (Tr. 68.)
With Stallings in custody, Investigator D. Dick went around the back of the apartment building, where he observed Shorter extend her head out of a second-story window and look toward the street. (Tr. 93.) He did not observe Shorter with any weapons in her possession, and the police briefing prior to Stallings's arrest had not warned of any expected weapons during the arrest. (Tr. 98, 111.) At the same time, other law enforcement officers approached the exterior door to the Apartment. (Tr. 10.) Police officers had passed by the Apartment previously and, as a result, at least one of the officers believed that Shorter's exterior door led only to Shorter's apartment unit. (Tr. 24-25, 111.) Sergeant N. Ford did not participate in Stallings's arrest, but rather "posted up where [he and other officers] would keep an eye on the door and the windows to the building." (Tr. 71-72.) He testified that he wanted to "[keep] an eye on the door and the windows to the apartment that [Stallings] came out of because he "didn't like [his] guys being in front of that partially opened door, that partial glass door." (Tr. 71.) His concern, "from a tactical point of view," was to protect the police from Shorter or anyone else with an upstairs vantage point. (Tr. 118.) Sergeant Ford wanted to ensure that no one "[snuck] from behind [law enforcement] or out a window." (Tr. 119.) Investigator Delp soon began knocking on Shorter's exterior door—which Sergeant Ford described as being slightly cracked open and that it "swung under its own power into the door frame, but [was] not latched"—and shouting for Shorter or anyone else upstairs to open the door. (Tr. 75-77.) Sergeant K. Peele or Investigator Delp eventually instructed Sergeant Ford to open the exterior door. (Tr. 77, 85, 103.)
It is not clear who directed Sergeant Ford to open the exterior door.
Once the exterior door was open, Officers Ford and Peele entered the downstairs landing of the Stairway and continued calling up to Shorter's apartment unit. (Tr. 77, 105.) Sergeants Ford and Peele both testified that upon opening the exterior door, they immediately smelled burnt marijuana, although they had not detected the smell while the door was closed. (Tr. 79, 82, 103.) After approximately five minutes of yelling up the stairs, Shorter opened the interior door to her apartment unit dressed only in her underwear. (Tr. 11-12, 77, 105-06.) Sergeant Peele instructed Shorter to come down the stairs. (Tr. 78.) Shorter asked whether she could go inside her apartment unit to put some clothes on, and Sergeant Peele replied that she could not. (Tr. 106.) Shorter then requested that the officers instead come up the stairs because she was not fully dressed. (Tr. 78, 106.) With Sergeant Peele on the downstairs landing and Shorter at the top of the stairs standing in the open interior doorway, Sergeant Peele asked Shorter whether the officers could enter her apartment unit to see if anyone else was inside. (Tr. 106.) According to Sergeant Peele, Shorter responded, "Go ahead." (Id.) Upon entering Shorter's apartment unit, Investigator Sterling observed on a table, in plain view, a "marijuana blunt," which Shorter admitted was hers. (Tr. 37.) After informing Shorter that she had the right to decline consent, Investigator Sterling then requested permission to "search the place for drugs or weapons." (Id.) Shorter denied his request. (Id.)
Shorter subsequently was arrested and now brings this motion to suppress all evidence, "and any derivative thereof," obtained as a result of the allegedly unlawful entry into her home. (Mot. 1.) A hearing was held on June 7, 2016 (the "Hearing"), after which the Court granted leave for the parties to file post-hearing briefs.
Positions of the Parties
Shorter's Position
Shorter moves this Court to suppress all evidence recovered as a result of what she alleges was an unlawful entry into her home. She claims that she had an objectively reasonable expectation of privacy in the Stairway. (Shorter Suppl. Br. 2-4.) She also asserts that police were not permitted to enter her apartment—absent a warrant—based on a protective sweep resulting from Stallings's arrest because "this limited protective sweep exception is narrowly confined to i) an in-home arrest; and ii) specific and articulable facts to believe the area harbors a dangerous individual." (Def. Br. 14.) She argues that neither element was met in this case, as Stallings was arrested outside the Apartment and "officers did not articulate any on scene observations or prior knowledge of any weapons or dangerous individuals in [Shorter's] residence such that a protective sweep would possess the requisite reasonable suspicion." (Id. at 16.) Lastly, Shorter argues that any consent on which the police based their entry into her apartment was tainted by their illegal initial entry. (Id. at 25-28.)
The Commonwealth's Response
The Commonwealth argues that Shorter did not have a legitimate privacy interest in the Stairway because it "was subject to use by her landlord and others." (Br. in Opp'n 1; CW Supp. Br. 1.) The Commonwealth further asserts that, even if she did have such a privacy interest, police entry into the Stairway—as well as into Shorter's apartment unit—was justified as part of a protective sweep conducted for officer safety. (CW Supp. Br. 1.) The Commonwealth also contends that should the Court find that a protective sweep was not justified, Shorter's consent "dissipated the taint of any prior unlawful entry into the hallway." (Id. at 2.)
Analysis
Legal Standard
The Fourth Amendment of the U.S. Constitution protects individuals against unreasonable searches and seizures. U.S. Const. amend. IV ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."). "It is axiomatic that the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) (internal quotation marks omitted); see also Logan v. Commonwealth, 46 Va. App. 213, 221, 616 S.E.2d 744, 747-48 (2005) ("The concept of home is so sacrosanct that 'with few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.'" (quoting Kyllo v. United States, 533 U.S. 27, 31 (2001)). Warrantless searches and seizures consequently "are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586 (1980). Warrantless entry into a home therefore may only be made by law enforcement where consent has been granted by the resident or where exigent circumstances lie. Id. at 590.
[A] Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. [The Supreme Court has] subsequently applied this principle to hold that a Fourth Amendment search does not occur -- even when the explicitly protected location of a house is concerned -- unless the individual manifested a subjective expectation of privacy in the object of the challenged search, and society [is] willing to recognize that expectation as reasonable.Kyllo, 533 U.S. at 33 (internal quotation marks and citations omitted).
Pursuant to the exclusionary rule, evidence must be suppressed if it is seized by the government in violation of the Fourth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961). A court shall exclude evidence that was obtained either: (1) as a direct result of an illegal search and seizure; or (2) as a proximate result of an illegal search and seizure. Wong Sun v. United States, 371 U.S. 471, 485-86 (1963).
A defendant seeking to suppress evidence bears the burden of proving factual circumstances giving rise to the reasonable expectation of privacy, which is the burden of persuasion. Testa v. Commonwealth, 55 Va. App. 275, 282 n.3, 685 S.E.2d 213, 216 n.3 (2009). When responding to a motion to suppress, the Commonwealth has the burden of proving admissibility of the seized evidence by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168 (1986). Where a warrantless search is at issue, the Commonwealth also has the burden of establishing an exception to the warrant requirement. Walls v. Commonwealth, 2 Va. App. 639, 645, 347 S.E.2d 175, 178 (1986).
Determining whether particular action by law enforcement constitutes a search for purposes of the Fourth Amendment involves a two-pronged test. First, a defendant must show "that he personally has an expectation of privacy in the place searched." Second, he must provide that his expectation is objectively "reasonable" based on "a source outside of the Fourth Amendment."Sanders v. Commonwealth, 64 Va. App. 734, 744, 722 S.E.2d 15, 19-20 (2015) (quoting Rideout, 62 Va. App. 779, 786, 753 S.E.2d 595, 599 (2014)) (citing United States v. Jones, 132 S. Ct. 945, 951 (2012); Minnesota v. Carter, 525 U.S. 83, 88 (1998)).
"A 'protective sweep' is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers and others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Maryland v. Buie, 494 U.S. 325, 327 (1990). The Fourth Amendment requires that for an officer to conduct a warrantless protective sweep he must possess "a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing that the area swept harbored an individual posing a danger to the officer or others." Id.
It is well-established that consensual encounters between the police and citizens do not violate the Fourth Amendment. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973) ("[A] search authorized by consent is wholly valid."). The validity of consent in a Fourth Amendment context rests on "whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied" and is "to be determined from the totality of the circumstances." Id. at 227.
The Commonwealth has a heavier burden to show "that there was a voluntary consent after an illegal stop . . . than when the consent is given after a permissible stop." United States v. Ballard, 573 F.2d 913, 916 (1978). In such cases, "the consent itself was a fruit of the poisonous tree." Walls, 2 Va. App. at 652, 347 S.E.2d at 183. The Commonwealth consequently is further required to show that the consent "was sufficiently an act of free will to purge the primary taint of the unlawful invasion," Wong, 371 U.S. at 486, such that the causal connection between the consent and the misconduct was broken, Walls, 2 Va. App. at 653, 347 S.E.2d at 183. Consent therefore is valid only if it is (1) voluntary and (2) was not "the product of a manipulative 'exploitation' by the police of an earlier unconstitutional search and seizure." Kyer v. Commonwealth, 45 Va. App. 473, 483, 612 S.E.2d 213, 218 (2005).
A person is detained or "seized" when, "by means of physical force or a show of authority, his freedom of movement is restrained," United States v. Mendenhall, 446 U.S. 544, 553 (1980), such that "a reasonable person would [not] feel free 'to disregard the police and go about his business,'" see Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting California v. Hodari D., 499 U.S. 621, 628 (1991)). To determine whether a person felt free to disregard the police, courts look to:
the threatening presence of a number of police officers, the display of weapons by officers, physical contact between an officer and a citizen, an officer's language or tone of voice compelling compliance, the retention of documents requested by an officer, and whether a citizen was told that he or she was free to leave.Harris v. Commonwealth, 266 Va. 28, 32, 518 S.E.2d 206, 209 (2003) (citations omitted). A request to search is not by itself a seizure unless a "reasonable person" would believe "he was not free to leave until he agreed to be searched and the searches . . . were complete." Dorsey v. Commonwealth, No. 0309-06-2, 2007 Va. App. LEXIS 176, at *17-18 (May 1, 2008).
As is appropriate, the Court does not consider the unpublished Court of Appeals Opinion to hold precedential value. The Court instead considers the rationale offered by the Court of Appeals to the extent that the Court finds it persuasive, which is permissible. See Fairfax Cty. Sch. Bd. v. Rose, 29 Va. App. 32, 39 n.3, 509 S.E.2d 525, 528 (1999) ("[A]lthough an unpublished opinion . . . has no precedential value, . . . a court . . . does not err by considering the rationale in adopting it to the extent it is persuasive.").
Discussion
The Court has considered the pleadings, oral argument at the June 7, 2016, hearing, the post-hearing submissions, and applicable authorities. The Court now rules on the issues before it.
Under Virginia law, the smell of burning marijuana emanating from a home can provide the probable cause and exigent circumstances necessary for a warrantless search of that home. See Evans v. Commonwealth, 776 S.E.2d 760, 764 (Va. 2015) (finding that police had probable cause to believe marijuana was in the defendant's mother's apartment and that "the cloud of heavy and extremely strong marijuana odors" and "the contemporaneous knowledge of [the defendant's] mother that the investigating officers at her doorway smelled the marijuana" established the necessary exigent circumstances for a warrantless search). In the case at bar, however, the burning marijuana smell was not detected until after law enforcement breached the exterior door to the Apartment. Assuming without deciding that the conditions provided the necessary probable cause and exigent circumstances for a warrantless search once the police were in the Stairway, the Commonwealth has the additional burden of demonstrating that law enforcement lawfully opened Shorter's exterior door. Under the circumstances present here, the Commonwealth can do so by proving that (1) Shorter did not have a reasonable expectation of privacy in the Stairway, (2) the police were entitled to search Shorter's apartment unit pursuant to a protective sweep, or (3) Shorter provided valid consent for law enforcement to conduct a protective sweep despite illegal entry into the Stairway. The Commonwealth failed to prove any of these.
A. Shorter had a reasonable expectation of privacy in the Stairway such that entry by law enforcement constituted a search for Fourth Amendment purposes.
Summarizing the state of Fourth Amendment jurisprudence regarding searches in Virginia, the Court of Appeals has held as follows:
Determining whether particular action by law enforcement constitutes a search for purposes of the Fourth Amendment involves a two-pronged test. First, a defendant must show "that he personally has an expectation of privacy in the place searched." Second, he must provide that his expectation is objectively "reasonable" based on "a source outside of the Fourth Amendment."Sanders v. Commonwealth, 64 Va. App. 734, 744, 722 S.E.2d 15, 19-20 (2015) (quoting Rideout, 62 Va. App. 779, 786, 753 S.E.2d 595, 599 (2014)) (citing Minnesota v. Carter, 525 U.S. 83, 88 (1998); United States v. Jones, 132 S. Ct. 945, 951 (2012)). "[T]he crucial factor is whether a person's expectations are founded on 'understandings that are permitted by society.'" United States v. Lyons, 706 F.2d 321, 327 (D.C. Cir. 1983) (quoting Rakas v. Illinois, 439 U.S. 128, 144 n.12 (1978)).
1. Shorter had a subjective expectation of privacy in the Stairway.
Evidence elicited at the Hearing demonstrates that Shorter had, in violation of her lease, changed the locks on her exterior door and kept her exterior door locked at times. Because her unit was the only upstairs unit accessible from the Stairway and because she presumably was the only one who had a key to her exterior door, Shorter essentially converted the Stairway into a private area. She also may have installed a security camera outside of her exterior door. (See CW Ex. 3.) There were blinds hung—apparently by Shorter—on the Stairway side of her exterior door that covered the large windows on the top half of the door, thereby blocking any public view into the Stairway. Shorter also appeared to be storing personal property in the Stairway outside of her interior door, further evincing her subjective expectation of privacy in the Stairway. (See CW Ex. 4.) Although Shorter did not testify as to her expectation of privacy in the Stairway, her actions and the condition of the Stairway and her exterior door clearly evidence that expectation. The Court finds that Shorter had a subjective expectation of privacy in the Stairway.
The Court places little, if any, weight on the presence of the security camera, as the testimony regarding the camera—including who installed it and from where video from the camera could be viewed—was extremely limited.
Shorter did not testify at the Hearing.
2. Shorter's expectation of privacy was objectively reasonable.
Whether Shorter's expectation of privacy in the Stairway was objectively reasonable is a more difficult question. To make this determination, the Court assesses the totality of the circumstances, taking into consideration factors that include the following:
whether the defendant: (1) owned the property, had a possessory interest in it, or was legitimately on the premises; (2) had the right to exclude others from it; (3) demonstrated a subjective expectation of privacy that it would remain free from governmental intrusion; and (4) took normal precautions to maintain his privacy.Sanders, 64 Va. App. at 752, 772 S.E.2d at 24.
It is undisputed that Shorter did not own the property at issue: she merely rented the upstairs apartment. By virtue of the Stairway's status as the apparent only means of ingress to and egress from the Apartment, however, Shorter arguably had a possessory interest in the Stairway and, regardless, she had a legitimate right to use the Stairway. Although not delineated in the lease, the Stairway essentially is a common area—an area available to a tenant to facilitate use of rented property or as an amenity—but, according to King's undisputed testimony, the Stairway is not part of Shorter's leased property. Unlike a typical common area, however, the Stairway—assuming Shorter's exterior door was locked—was not accessible by the public or by delivery personnel.
The fact that Shorter's exterior door apparently was unlocked at the time of Stallings's arrest is not surprising, as Stallings had traversed through the door at least twice shortly before his arrest. Additionally, the fact that one's front door is unlocked does not diminish his or her expectation of privacy.
King's undisputed testimony also indicated that Shorter did not have the right to exclude others from the Stairway and, pursuant to her lease, Shorter was not permitted to change the locks on her exterior or interior door. King also testified, however, that other apartment complex tenants could not access the Stairway even if Shorter had not changed the locks. When asked who had access to the Stairway, King said that only she, her husband, and a maintenance worker did. Access to the Stairway—as described at the Hearing—was no different than the access almost all landlords and maintenance workers have to unquestionably private apartments, assuming advance notice is provided to the tenants.
King also testified that the police had the right to enter the Stairway. Cf. Sanders v. Commonwealth, 64 Va. App. 734, 753, 722 S.E.2d 15, 24 (2015) ("[N]o evidence indicated that the police lacked permission to be present on the walkways."). Assuming Shorter's exterior door were locked, King or her maintenance man would need to provide access to the police.
The Court has already found, supra, that Shorter demonstrated a subjective expectation of privacy in the Stairway. The Court found particularly persuasive Shorter's replacement of door locks, her storage of personal items in the Stairway, and the presence of blinds to cover the exterior door window, thereby obstructing the view into the Stairway from outside the Apartment.
Shorter likewise has taken normal precautions to maintain her privacy. The actions Shorter took to demonstrate her subjective expectation of privacy—changing locks and covering door windows—also constitute normal precautions to maintain her privacy.
Based on the testimony and exhibits offered at the Hearing, the exterior doors leading to upstairs apartments—including Shorter's door—have large glass windows on them; by contrast, other apartment doors—interior doors and those doors external to the building that lead directly into downstairs apartments—are solid. The inclusion of windows on Shorter's exterior door demonstrates an intent to create a common area and to diminish any expectation of privacy in the Stairway. Shorter's exterior door therefore is consistent with a common-area door that normally would preclude an expectation of privacy. The doors leading directly into apartment units are further distinguishable from those leading to stairways in how they open; apartment-unit doors open inwards, whereas exterior doors open outwards, consistent with common-area fire code requirements. This factual distinctions are not determinative, however, as "the Fourth Amendment protects people, not places." Katz v. United States, 389 U.S. 347, 351 (1967).
The Commonwealth encourages the Court to hold that Shorter lacked a legitimate privacy interest in the Stairway—despite her efforts to maintain privacy—because the Stairway "was subject to use by her landlord and others." In support of its argument, the Commonwealth relies on a case handed down by the U.S. Court of Appeals for the Eleventh Circuit, United States v. Miravalles. 280 F.3d 1328, 1333 (11th Cir. 2002). There, the court held that "tenants in a large, high-rise apartment building, the front door of which has an undependable lock that was inoperable on the day in question," do not have a "reasonable expectation of privacy in the common areas of their building" because the common areas "were open and accessible not only to all the many tenants and their visitors, to the landlord and all its employees, to workers of various types, and to delivery people of all kinds, but also to the public at large." Id.
Other cases holding that tenants did not have a reasonable expectation of privacy in apartment hallways similarly emphasize access available to other tenants, delivery people, and the public. In United States v. Concepcion, the U.S. Court of Appeals for the Seventh Circuit upheld the finding of the district court that the defendant "could not assert an expectation of 'privacy' in the common area . . . because the other five tenants sharing the same entrance used the space and could admit as many guests as they pleased." 942 F.2d 1170, 1172 (7th Cir. 1991). In United States v. Mendoza, the U.S. Court of Appeals for the Eighth Circuit considered whether the defendant had a reasonable expectation of privacy in the common area of his duplex. 281 F.3d 712, 715-16 (8th Cir. 2002). The Mendoza court held that the defendant "did nothing that would lead the officers to believe he had a protectable interest in the common area. . . . He made no efforts to secure the outer door . . . and there remained two mailboxes to its left." Id. The court held, therefore, that "there was no signal to the officers that knocking on the outer door would have been necessary." Id.
The determination of whether a defendant has a reasonable expectation of privacy inevitably rests on the facts of each individual case. In contrast to the cases that found tenants lacked a privacy interest in "common areas" outside their apartments, in United States v. Fluker the U.S. Court of Appeals for the Ninth Circuit held that the defendant had a reasonable expectation of privacy in a hallway outside his apartment. 543 F.2d 709 (9th Cir. 1976). The Fluker court distinguished the apartment hallway at issue from a common hallway in larger apartment buildings, noting that the hallway in the case before it was shared with only one other unit, the exterior door to the hallway was kept locked, and the two tenants and the landlord were the only ones with keys to the exterior door. Id. at 716. Hence, the court opined that the tenant "could reasonably be said to have a greater reasonable expectation of privacy than would be true of occupants of large apartment buildings." Id.
The Fluker court also noted that the interior door to the defendant's apartment was "directly beyond the outer doorway" and, "[t]hus, a knock on the outer door might well have been audible in [the defendant's] apartment." 543 F.2d at 716. Although that is not true in the instant case, this issue is not dispositive. See United States v. Drummond, 98 F. Supp. 2d 44, 46 (D.C. 2000) (opining—when discussing Fluker—that "police officers must take the home they wish to enter as they find it" and that "[i]f there is no answer to a police announcement after a while, police will be allowed to enter the home by force as always").
Citing Fluker, the U.S. District Court for the District of Columbia similarly held that tenants had a reasonable expectation of privacy in "the entryway landing just inside the outer door and just inside the front of their inner door" where the entry hall and stairway led to only two apartments, just one of which was occupied at the time. United States v. Drummond, 98 F. Supp. 2d 44, 48 (D.C. 2000). In Drummond, the defendants "were the only people with access to [that] area aside from their landlord" and "would reasonably have expected that no one else would be in that entryway without their permission." Id. at 49.
In contrast to Miravalles and Concepcion, in the case at bar only Shorter, King, King's husband, and King's maintenance worker were expected to have access to the Stairway. As an end unit, Shorter's apartment is unique in that it does not share a stairway or exterior door with any other apartment units—a fact known by at least some of the police—and no other tenants had keys to Shorter's exterior door even before Shorter changed the locks. Consequently, the list of individuals with access to the Stairway is no different than the list of those who would have access to the interior of any given apartment unit: the tenant, the landlord, and maintenance workers. Unlike Mendoza, here there was only one unit number on Shorter's exterior door, and the two mailboxes for the building are between Shorter's exterior door (marked "6") and the adjacent door to the downstairs apartment (marked "5"), indicating that each door leads to a single apartment unit. (See CW Ex. 1.) The facts in this case therefore are much more analogous to those in Fluker and Drummond, where just one or two tenants had access to the common area and where the area outside the common area is indicative of a restricted use.
Based on the totality of the circumstances, the Court finds that Shorter's expectation of privacy in the Stairway—a belief that she subjectively expressed through her actions—was objectively reasonable.
B. The police were not entitled to enter the Stairway as part of a protective sweep of Shorter's apartment.
The Commonwealth asserts that the police lawfully entered the Stairway and Shorter's apartment unit to conduct a protective sweep of the area following the arrest of Stallings in the parking lot outside the Apartment. "A 'protective sweep' is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers and others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Maryland v. Buie, 494 U.S. 325, 327 (1990). The Fourth Amendment requires that for an officer to conduct a warrantless protective sweep he must possess "a reasonable belief based on 'specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted' the officer in believing that the area swept harbored an individual posing a danger to the officer or others." Id. (internal quotation marks omitted) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968); Michigan v. Long, 463 U.S. 1032, 1049-50 (1983)).
Shorter asserts that in order for a protective sweep of a home to be permissible, "there must be an in-home arrest." This assertion is inconsistent with Virginia law, however. Interpreting the rule in Buie, the Virginia Supreme Court has held as follows:
The Fourth Amendment permits the police to conduct a limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief, based on specific and articulable facts, that the area to be swept harbors an individual posing a danger to those on the arrest scene.Commonwealth v. Robertson, 275 Va. 559, 564 (2008). Finding the protective sweep at issue impermissible, the Robertson court distinguished the facts before it from those in Buie, noting that the defendant "was arrested outside of his home" and "the officers entered [the defendant's] home after [he] had been apprehended." Id. at 564-65. Also noteworthy in Robertson, however, was that "there was no one else in the home" and "the officers' observations during their extensive surveillance of the premises for an extended period of time[ ] indicated that there was no one present in the home after [the defendant's] arrest." Id. at 565. The lack of an in-home arrest, however, was not determinative to the Robertson court. As discussed infra, other Virginia courts have held that an arrest need not occur inside the home in order to justify a protective sweep of the home.
In Gonzales v. Commonwealth, the defendant was arrested on the front porch of his home immediately after exiting the house and shutting the door. No. 0950-15-1, 2016 Va. App. LEXIS 105, at *3 (Apr. 5, 2016). There, the court held that "the officers did not hold any reasonable articulable suspicion that an armed individual was in the house at the time they entered," as the defendant stated that no one was present in the home and the officer testified he neither saw nor heard anyone else in the home. Id. at *15-17. The court also found that the testifying officer was unable to articulate "any specific factual basis for his concern of the officers' safety." Id. at *16.
See supra note 2.
In Williams v. Commonwealth, the defendant surrendered to police outside of his apartment after a lengthy standoff and "several hours of negotiation." 49 Va. App. 439, 445, 642 S.E.2d 295, 298 (2007). Prior to the defendant's arrest, the police had information that the defendant was "heavily armed." Id. "Immediately following the surrender," police entered the apartment to conduct a "protective sweep and [to] attempt to locate a handgun" believed to be inside. Id. The Williams court upheld the protective sweep, noting that "a warrantless search into a defendant's home may be reasonable even when the arrest occurs outside the dwelling." Id. at 449, 642 S.E.2d 299.
This Court concurs with the Williams court, as well as other out-of-jurisdiction courts, that "a protective sweep may be conducted following an arrest that takes place just outside the home, if sufficient facts exist that would warrant a reasonably prudent officer to fear that the area in question could harbor an individual posing a threat to those at the scene." United States v. Lawlor, 406 F.3d 37, 41 (1st Cir. 2005) (cited approvingly by the Virginia Court of Appeals in Williams, 49 Va. App. at 449, 642 S.E.2d at 299); accord United States v. Cavely, 318 F.3d 987, 995-96 (10th Cir. 2003); United States v. Wilson, 306 F.3d 231, 238 (5th Cir. 2002); United States v. Colbert, 76 F.3d 773, 776-77 (6th Cir. 1996); United States v. Henry, 48 F.3d 1282, 1284 (D.C. Cir. 1995); United States v. Steele, 788 F. Supp. 278, 281-82 (N.D.W. Va. 1992); Nelson v. State, 271 Ga. App. 658, 610 S.E. 2d 627 (Ga. Ct. App. 2005); People v. Cartwright, 454 Mich. 550, 559-60, 563 N.W.2d 208, 213 (Mich. 1997); see also United States v. Hoyos, 892 F.2d 1387, 1397 (9th Cir. 1989), overruled on other grounds by United States v. Ruiz, 257 F.3d 1030, 1031 (2001) ("Whether the arrest occurred inside or outside the residence does not affect the reasonableness of the officer's conduct. A bullet fired at an arresting officer standing outside a window is as deadly as one that is projected from one room to another.").
Here, as in Williams, "the [alleged] protective sweep took place immediately after the [subject] had been placed into custody just outside the apartment's front door." 49 Va. App. at 449, 642 S.E.2d at 299. The Court therefore must determine whether, in this case, '"reasonably articulable facts' exist to show that the area searched 'could harbor an individual posing a threat to those on the scene.'" Id. at 450, 642 S.E.2d at 300 (quoting Lawlor, 406 F.3d at 41). The reasonableness of the protective sweep must be determined from the perspective of the police at the time of the entry. Id. Unlike in Gonzales and Robertson, the police in the instant case had actual knowledge that an individual, other than the one in custody, was inside the Apartment. In contrast to Williams, however, police lacked any information suggesting Shorter was armed or dangerous or that there were any weapons in the Apartment. Shorter was not the subject of any arrest warrants at the time of the alleged protective sweep, and police did not know Shorter's identity or have any indication that she had a propensity for violence or criminal activity.
Although the alleged protective sweep of Shorter's apartment was not invalid because Stallings's arrest occurred outside of the Apartment, as Shorter argues, the evidence presented at the Hearing did not sufficiently prove that the officers possessed a "reasonable belief, based on specific and articulable facts, that the area to be swept harbor[ed] an individual posing a danger to those on the arrest scene." Robertson, 275 Va. at 564. Moreover, even though the police knew someone was inside the Apartment, they failed to articulate facts establishing a credible belief that she was armed or dangerous at the time of the sweep, and the events of that day—that Shorter was in her home, that she looked outside her window, and that she was slow to answer her door—do not support the conclusion that Shorter represented a danger to law enforcement. The officers' actions also are not consistent with the urgency normally associated with a belief that the building being swept harbors an individual posing a danger to the officers; the officers spent several minutes knocking on the exterior door after Stallings was in custody, remained on the downstairs landing upon entering the Stairway, and waited another five minutes yelling up the stairs to Shorter. Based on the totality of the circumstances, the Court finds that the Commonwealth has failed to satisfy its burden of proving that the officers possessed a reasonable belief, based on specific and articulable facts, that Shorter posed a danger to the officers at the scene of Stallings's arrest.
In summary, the Commonwealth has not satisfied its burden of proving that law enforcement was entitled to conduct a protective sweep in light of the following: (1) Stallings was outside the Apartment and in custody at the time; (2) there was no evidence that Shorter or Stallings was armed or dangerous or that there were any weapons in the Apartment; (3) having surveilled the Apartment for more than an hour and a half, there was no evidence that anyone other than Shorter was in the Apartment; (4) although Shorter looked out of a window in her home after Stallings was arrested, nothing she did supported the conclusion that she posed a safety concern or was engaged in the destruction of evidence; (5) and the actions of law enforcement did not demonstrate the sense of urgency normally associated with a protective sweep.
Stallings's prior charges were not weapons-related.
C. Shorter did not provide valid consent for law enforcement to conduct a protective sweep of her apartment.
As an initial matter, it is undisputed that Shorter voluntarily gave consent for the police to conduct a protective sweep of her apartment. Valid consent requires more than just voluntariness, however; to be lawful, consent also cannot be "the product of a manipulative 'exploitation' by the police of an earlier unconstitutional search and seizure." Kyer v. Commonwealth, 45 Va. App. 473, 482, 612 S.E.2d 213, 218 (2005).
Courts have considered the following factors when determining whether there was a manipulative exploitation by law enforcement in obtaining consent: (1) the "temporal proximity" between the unlawful invasion and the consent, (2) any intervening circumstances, (3) the purpose and flagrancy of the misconduct, and (4) the defendant's knowledge of her right to refuse consent. Walls v. Commonwealth, 2 Va. App.639, 653, 347 S.E.2d 175, 183 (1986). Regarding intervening circumstances, an argument for valid consent is particularly unpersuasive if (1) evidence was discovered before consent was given, (2) the consenter was illegally detained at the time of consent, or (3) the illegal entry was made "for the 'very purpose' of obtaining consent." Kyer, 45 Va. App. at 484, 612 S.E.2d at 219. Where consent is requested—and a search takes place—immediately after an illegal entry, often "it is clear that the very purpose of the entry was to obtain consent." Douglas v. Commonwealth, No. 2470-95-2, 1997 Va. App. LEXIS 532, at *16 (Aug. 5, 1997).
See supra note 2.
With respect to the "temporal proximity" between the unlawful invasion and the consent, Sergeant Peele asked for Shorter's consent to conduct a protective sweep almost immediately after illegally entering the Stairway. He yelled up toward Shorter's apartment unit for approximately five minutes; asked Shorter to descend the stairs once she answered the door; went up the stairs after Shorter asked him to, presumably because Shorter was not fully dressed; asked Shorter whether anyone else was inside her apartment unit; and finally asked Shorter for consent to conduct a protective sweep, apparently without advising her that she could deny his request. Immediately after asking for consent, Peele and several other officers swept the apartment. Under these circumstances, the temporal proximity between entry and consent was too close to break the causal connection and dissipate the taint: as noted, only about five minutes passed between when the exterior door was opened and when Shorter gave consent. See Goode v. Commonwealth, No. 1022-07-2, 2008 Va. App. LEXIS 217, at *16 (May 6, 2008) (holding a five-minute delay in opening a door for police insufficient to break the causal connection); Douglas, 1997 Va. App. LEXIS 532, at *15-16 (finding "the passage of up to an hour between the unlawful entry and the alleged consent . . . insufficient to dissipate the taint"). The only delay was Shorter's failure to immediately open the door, the brief conversation between Sergeant Peele and Shorter, and the officers' ascent, which the Court collectively finds to be insignificant.
The Court finds unpersuasive the Commonwealth's argument that Shorter understood that she could deny the request for a protective sweep because she subsequently denied the request to search her apartment unit. Rather, in light of Shorter's denial of the request to search the apartment unit after being informed of her right to deny, the Court finds that Shorter very well may have denied the request for a protective sweep had she been informed of her right to do so.
Intervening circumstances here include that law enforcement obtained evidence after the illegal entry and prior to the consent, that Shorter effectively was seized at the time she gave consent, and that the police may have made the illegal entry for the very purpose of gaining consent to search Shorter's apartment unit.
At the time the police requested Shorter's consent to search her apartment unit, they had already obtained evidence against her as a result of the unlawful entry into the Stairway. It was only after Shorter's exterior door was illegally opened that officers smelled the odor of marijuana. This collection of evidence prior to obtaining consent—via the smell of burning marijuana—leads the Court to believe that the police exploited the findings of their illegal entry to compel Shorter to consent to a protective sweep. Of note, Shorter subsequently volunteered to the officers that she had been smoking marijuana prior to the illegal entry and pointed to the "blunt," suggesting that she had a reasonable belief that evidence might be collected against her to support marijuana-related charges.
Shorter was charged with misdemeanor possession of marijuana in connection with these events, but the charges since were nolle prossed.
It appears that Shorter was detained at the time she provided consent, which weighs against the validity of her consent. Once she opened the interior door to her apartment unit and was requested to descend the stairs, Shorter asked if she could go back inside to get dressed. Sergeant Peele told her that she could not, effectively restraining her freedom of movement. See United States v. Mendenhall, 446 U.S. 544, 553 (1980). At least three law enforcement officers entered the Apartment and confronted Shorter, each of whom presumably was armed with a weapon that, if not drawn, was in plain view. See Harris v. Commonwealth, 266 Va. 28, 32, 581 S.E.2d 206, 209 (2003). Having looked outside her window earlier, Shorter likely was aware that there were many police officers in the immediate vicinity of the Apartment. Although there was no physical contact between law enforcement and Shorter, and a request to search is not itself a seizure, the Court finds that the circumstances surrounding the entry and Sergeant Peele's yelling to Shorter—coupled with his order for Shorter not to go back inside her apartment unit—would lead a reasonable person to believe she was not free to move about. See Dorsey v. Commonwealth, No. 0309-06-2, 2007 Va. App. LEXIS 176, at *17-18 (May 1, 2008). Shorter further could reasonably infer that because the police entered the building without her consent, they would also enter her apartment unit even if she refused consent. Cf. Allah v. Commonwealth, 1997 Va. App. LEXIS 17, at *9 (1997) (implying that the defendant consented to a search "just to free himself of police interference" after refusing consent to a previous search led to a "lengthy detention"). Lastly, because Shorter asked to go back inside and complied when Sergeant Peele refused, she submitted to his show of authority, implying that she did not, in fact, feel free to disregard Sergeant Peele's order. See Florida v. Bostick, 501 U.S. 429, 434 (1991). Shorter therefore effectively was seized when she gave consent to search her apartment, and this seizure was illegal as it resulted directly from the illegal entry and was not based on any independent probable cause.
See supra note 2.
Whether the illegal entry into the Stairway was made for the very purpose of obtaining consent also is relevant. It is undisputed that at least some of the police officers knew someone was inside the Apartment before they entered. Their purported intent upon opening Shorter's exterior door was to perform a protective sweep of the Apartment in order to ensure the safety of the arresting officers and to prevent the destruction of evidence. As discussed supra, however, the Commonwealth failed to demonstrate that law enforcement had a reasonable, articulable suspicion that an armed individual was in the Apartment at the time; the legitimacy of the stated purpose therefore is suspect. In fact, testimony at the Hearing revealed that the police did not seek a warrant to search Shorter's home at the time they obtained the Stallings arrest warrants because they did not think they had probable cause to do so. The Court also notes that the actions of law enforcement here were inconsistent with the urgency normally associated with a protective sweep. Relatedly, the notion of consent is incompatible with a protective sweep, as there is no requirement for police to knock and announce when, inter alia, there is a threat of physical violence or there is reason to believe evidence would likely be destroyed if advance notice were given. See Richards v. Wisconsin, 520 U.S. 385, 391 (1997); Heaton v. Commonwealth, 215 Va. 137, 138, 207 S.E.2d 829, 830 (1974). In evaluating the totality of the circumstances, it appears to the Court that the officers' de facto purpose in illegally breaching the exterior door very well may have been to obtain consent from Shorter to conduct a search of her apartment unit.
The Court also considers the purpose and flagrancy of the intrusion. As stated supra, the objective facts surrounding the entry and request for consent arguably support the conclusion that the police officers intended to enter the Apartment to gain Shorter's consent to conduct a search of her residence, despite any purported concerns about officer safety and destruction of evidence. Such a purpose clearly does not break the causal connection between the illegal entry and the subsequent consent. Of note, the law enforcement entry into the Stairway was not flagrant; the door apparently was unlocked and cracked open, so the police did not forcibly enter through the exterior door, and they did not ignore any requests that they leave. The police nevertheless lacked a legitimate purpose to enter the building in which Shorter had a reasonable expectation of privacy and consequently should have known that they needed a warrant to enter. The purpose and flagrancy also must be weighed against the nature of the intrusion. Walls, 2 Va. App. at 655, 347 S.E.2d at 184. In this case, the illegal entry into Shorter's home was "the chief evil against which the wording of the Fourth Amendment is directed." Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) (internal quotation marks omitted).
Shorter likely was not aware of her right to refuse consent to search her apartment. Although not a requirement, see Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973), nothing in the record states that any of the officers advised Shorter of such right before she consented to the protective sweep. By contrast, she did refuse consent to the request for a second, more invasive search after Investigator Sterling informed her of her right to do so, implying that had she known of her right to refuse consent, she would have refused consent for the protective sweep as well. Additionally, knowledge of the right to refuse does not need to be established "as the sine qua non of an effective consent." Id.
Considering the totality of the circumstances, even if Shorter's consent to the protective sweep were voluntary, it was not sufficiently an act of free will to purge the taint of the initial illegal entry. See Wong Sun v. United States, 371 U.S. 471, 486 (1963). The causal connection between the entry and the consent must have been broken such that the consent did not depend upon the illegal entry. See, e.g., Walls, 2 Va. App. at 653, 347 S.E.2d at 183. Such was not the case here.
It is not necessary to consider the illegal detention of Shorter further, as it was a direct result of the illegal entry.
In summary, the Commonwealth has not satisfied its burden of proving that Shorter validly consented to a protective sweep in light of the following: (1) the alleged consent was given immediately after the illegal entry into the Stairway; (2) evidence was obtained against Shorter prior to requesting her consent; (3) Shorter was seized when she gave the alleged consent; (4) there was no reasonable, articulable suspicion to support a protective sweep, and the notion of consent is inconsistent with the urgency usually associated with such a sweep, supporting a conclusion that the police may have intended to search Shorter's apartment unit from the outset; (5) the purpose and nature of the intrusion were improper; and (6) Shorter apparently was unaware that she could deny the request to conduct a protective sweep. Based on the totality of the circumstances, the Court finds that the Commonwealth has not satisfied its burden of proving that Shorter validly consented to a protective sweep of her apartment.
Conclusion
The Court finds—based on the facts and circumstances present in this case—that Shorter had a privacy interest in the stairway between the exterior and interior doors of her apartment, that a protective sweep of Shorter's apartment was not justified, and that any consent given by Shorter to search her apartment unit was tainted by the prior illegal entry through the exterior door to her apartment.
For the foregoing reasons, the Court GRANTS the Motion to Suppress. The Clerk's Office will prepare an Order consistent with this ruling and forward it to the parties. Counsel shall notify the Court of any objections within fourteen days.
Sincerely,
/s/
David W. Lannetti
Circuit Court Judge DWL/bih/bes