VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Friday, the 15th day of
January, 2010.
Michael Dwayne Vaughn, Appellant,
against Record No. 090856
Court of Appeals No. 2564-07-3
Commonwealth of Virginia, Appellee.
Upon an appeal from a judgment rendered by the Court of
Appeals of Virginia.
Upon consideration of the record, briefs, and argument of
counsel, the Court affirms the judgment of the Court of Appeals but
vacates its opinion in part.
The defendant, Michael Dwayne Vaughn, was convicted and
sentenced in the Circuit Court of Henry County for grand larceny in
violation of Code § 18.2-95. The Court of Appeals affirmed the
circuit court's judgment. Vaughn v. Commonwealth, 53 Va. App. 643,
653-54, 674 S.E.2d 558, 563 (2009). Vaughn asserts that the Court
of Appeals erred by upholding the circuit court's denial of his
motion to suppress the evidence seized during a warrantless search
of the curtilage of his dwelling, specifically the backyard, and
also any evidence derived from that search. Vaughn argues that the
law enforcement officer who conducted the search was not lawfully
in Vaughn's backyard because the officer proceeded beyond that area
of the curtilage for which he had "implied consent" to enter. See
Robinson v. Commonwealth, 273 Va. 26, 34-35, 639 S.E.2d 217, 222
(2007).
In an assignment of cross-error, the Commonwealth contends that
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." The Commonwealth is correct.
In Vaughn’s motion to suppress filed in the circuit court, he
argued, inter alia, that the search of the property violated the
Fourth Amendment because "[t]here were insufficient underlying facts
and circumstances presented to the officers for there to have been
probable cause to believe that there was evidence located at the
property that was subject to seizure[, c]onfiscation of the
allegedly stolen items cannot be justified under any 'plain view'
doctrine where the discovery was anticipated[, and t]here were no
exigent circumstances to justify the warrantless search of the
property." While Vaughn did argue that the Fourth Amendment
requirements for a warrantless search of a dwelling's curtilage,
i.e., probable cause and exigent circumstances, see Robinson, 273
Va. at 34, 639 S.E.2d at 221, were not met, Vaughn did not contest
the lawfulness of the officer’s presence in his backyard where the
stolen items were plainly in view, or cite any cases that dealt with
the doctrine of implied consent.
Thus, the Court of Appeals erred by addressing the implied
consent doctrine and deciding whether the officer lawfully entered
Vaughn's backyard. See Rule 5A:18 ("No ruling of the trial court
. . . will be considered as a basis for reversal unless the
objection was stated together with the grounds therefor at the time
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of the ruling."); see also Rule 5:25.
The Court therefore vacates that portion of the Court of
Appeals' opinion deciding whether the officer lawfully entered
Vaughn's backyard under the implied consent doctrine. The Court,
however, affirms the Court of Appeals' judgment upholding Vaughn's
conviction for grand larceny.
This order shall be published in the Virginia Reports and shall
be certified to the Court of Appeals of Virginia and the Circuit
Court of Henry County.
A Copy,
Teste:
Patricia L. Harrington, Clerk
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