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Unlawful Search of Virginia Backyard Deck Leads to Dismissal of Marijuana Prosecution

These Law Chambers achieved a significant outcome for a Goochland, Virginia man on trial for possession of marijuana found by a police officer whose presence there exceeded the owner's implied invitation to be upon his property.

In September 2010, the home of the defendant's next door neighbor (who lived several hundred yard away) was the site of a police investigation of a burglary. The burglars had entered the home by breaking in through the rear of the house. The police were unsure when the burglary occurred, but it could have been between noon and 3:45 in the afternoon when the neighbor was absent.

A Goochland sheriff's deputy drove to the defendant's home next door to the burglary site to inquire if he had noticed anyone suspicious in the vicinity. Despite the presence of several "Posted" (i.e., "no trespassing") signs placed at the entrance to the defendant's property, the officer proceeded up the driveway to the defendant's residence. After confirming that the lone vehicle in the driveway was registered to the address, the deputy went to the front door and rang the bell and knocked. He got no response.

The deputy then walked around to the rear of the house. He explained in testimony he gave at a suppression hearing that he first wanted to see if the owner was in the rear of the house, and secondly, to see if there was evidence of a break-in similar to the home next door. He admitted he had observed or heard nothing since arriving on the defendant's property to indicate anything was amiss.

When he got to the attached rear deck he observed a planter box containing three marijuana plants. He knocked on the rear door and getting no response, he departed. Thirty minutes later he returned and encountered the owner, and wrote him a summons for possession of marijuana. The deputy did not attempt to obtain a search warrant based upon what he earlier observed on the deck.

Over defendant's objections that the marijuana should be suppressed because it was seized in violation of the defendant's Fourth Amendment rights, the general district court convicted him. An appeal of that decision was immediately made to the circuit court.

A pre-trial suppression hearing was conducted by the circuit court. The judge rejected both of the Commonwealth's arguments: 1) that the search was reasonable under the circumstances, and therefore not violative of the defendant's Fourth Amendment rights; and 2) that even if the search was not reasonable, the "community caretaker" exception to the search warrant requirement applied because the officer was checking on the welfare of the occupant.

The circuit court ruled that the search was not reasonable, and that while the officer may have been acting within the law when he went to the defendant's front door, the "no trespassing" signs negated any implied consent by the owner to come onto his land, regardless of whether it was a police officer, or any other person who was not invited upon the property by the owner.

The circuit court also decided that the "community caretaker" exception did not apply because there was no exigent circumstance involed (i.e., a reason to believe that anyone in the defendant's home was in immediate danger or distress), and that there were no facts to suggest that the criminal activity that had occurred might be on-going there some 4 hours after the burglary of the neighbor's house.

After ruling that the seized marijuana plants could not be admitted into evidence, the Commonwealth's Attorney asked for a nolle prosequi (dismissal) of the charge, which the court granted.

If you, a loved one, or a friend is facing criminal charges in Virginia, please call to schedule a free consultation. Perhaps we can help.

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Mr. Stelly regularly appears in the courts of the City of Richmond, Henrico County, Chesterfield County, Goochland County, and Hanover County.

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