Robinson v. Com.

Present: All the Justices

ELISA K. ROBINSON

v. Record No. 060417

COMMONWEALTH OF VIRGINIA
OPINION BY JUSTICE ELIZABETH B. LACY
January 12, 2007
GEORGE F. ROBINSON

v. Record No. 060426

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In these consolidated appeals, we consider whether a

warrantless search and seizure within the curtilage of a

private residence violated the Fourth Amendment either because

the investigating officer (1) did not act within the scope of

the implied consent for uninvited individuals, including law

enforcement, to enter the curtilage of the residence in order

to contact the occupants, or (2) did not have probable cause

and exigent circumstances under the facts presented.

FACTS

Our recitation of the facts is based both on a Joint

Stipulation (Stipulation) executed by the attorney for the

Commonwealth, Elisa K. Robinson (Elisa) and George F. Robinson

(George), and on the testimony of Corporal Scott Cox of the

Albemarle County Police Department (Officer Cox). On

appellate review, we are bound by the familiar principle that
"we must consider the evidence and all reasonable inferences

fairly deducible therefrom in the light most favorable to the

Commonwealth, the prevailing party below." Rose v.

Commonwealth, 270 Va. 3, 6, 613 S.E.2d 454, 455 (2005).

According to the Stipulation, on August 16, 2002, Elisa

and George hosted a party for Elisa's son Ryan to celebrate

his sixteenth birthday. Elisa purchased food and beverages

for the party in the amount of $1,013.97, including $350.48

for alcoholic beverages. She also purchased "five [large]

trashcans for the purpose of icing down" the beverages.

Prior to the party, George and Elisa spoke with the

parents of some of the invited juveniles. Elisa told these

parents that she intended to collect the juveniles' car keys

and that she would "move [her] sports utility vehicle across

the driveway once all the guests had arrived to prevent the

juveniles from leaving" the party. Elisa did not tell any of

the parents she intended to serve alcoholic beverages.

Further, during the party, one juvenile overheard George

stating to someone on the telephone "that there was no alcohol

at the party."

Approximately thirty juveniles attended the party. The

trash cans containing the alcoholic beverages were placed in

the backyard behind the fence "so that they would not be

visible to any parent who brought their children to the

2
party." Elisa and George neither encouraged the juveniles to

consume alcoholic beverages nor discouraged them from doing

so. George, however, instructed several of the juveniles not

to drink near the pool "because he did not want [any] broken

glass in [the] pool."

Officer Cox testified that on the night of the party, the

Albemarle County Police Department received three telephone

calls reporting the possibility of juveniles consuming

alcoholic beverages at a party at the Robinsons' home. In

response to these calls, Officer Cox drove to the Robinson

home at around 11:00 p.m. in a marked police vehicle.

As Officer Cox approached the property, he observed

approximately 10 to 20 vehicles parked along the adjacent

public road. He also saw "two or three" vehicles parked on

the left side of the driveway. Based on these observations,

Officer Cox contacted other Albemarle County police officers

waiting in the vicinity and instructed them to "start heading

this way" because it "appears that there's a party."

When Officer Cox turned his vehicle into the driveway, he

could see the house, the front door and porch, and the front

yard, but he could not see the end of the driveway, the garage

area, or the backyard. As Cox proceeded up the driveway, he

observed several additional vehicles parked near the right

side of the driveway. He was also able to see, in front of

3
the house, a "small circular portion of the driveway" that

encircled a stand of trees. Instead of parking in the

circular portion of the driveway, Officer Cox drove his

vehicle along the main portion of the driveway, which

continued past the trees and led to the garage area on the

right side of the house. A path leading to the front door

intersected the driveway beyond the stand of trees but a few

feet before the garage area. A large bush was located

adjacent to the driveway immediately in front of this path.

Before Officer Cox reached the point where the path

intersected the driveway, he saw two individuals holding clear

beer bottles. Both were standing approximately seven to ten

yards "into the back yard" and appeared to be younger than 21

years of age. When the individuals saw Officer Cox's vehicle

they yelled "cops," dropped their beer bottles, and ran along

a fence line toward the woods behind the house.

Officer Cox then pulled his vehicle into the garage area

and parked on the concrete pad. From there, Officer Cox saw a

patio table covered with beer bottles as well as "[b]eer

bottles spread throughout the [back]yard." Officer Cox

stepped out of his vehicle, "yelled for [people] to stop

[running]," and "got on the radio, and . . . told everybody

that was arriving on the scene that the kids were running

4
east, past the house, into the woods." He then went into the

backyard to locate "the juvenile hosting the party."

Officer Cox testified that he wanted to locate the host

to "find out what was going on [and] find out who the people

were that were running away." He was "worried for their

safety" and "wanted to find out who they were, so [the police]

could contact parents." In the backyard, Officer Cox spoke

with one of the juveniles and, "based on that conversation,"

approached the back of the house. Through the sliding glass

door at the back of the house, Officer Cox saw George and

Elisa sitting at a kitchen table.

According to the Stipulation, when the other police

officers arrived at the Robinsons' home, they found four trash

cans in the backyard filled with alcoholic beverages, empty

alcoholic beverage bottles in the yard, and half-empty bottles

on the table and on the rear deck. Despite the Robinsons'

professed intentions to collect the car keys of all the party

guests and have them remain overnight, the Robinsons had only

collected five or six sets of keys. They also had not blocked

the driveway in order to prevent guests from leaving. While

the police were conducting their investigation on the

premises, Elisa told several of the juveniles to "swallow

vinegar in order to fool the Alcosensor." Elisa also

instructed one girl to "tell her parents that a boy had

5
spilled alcohol on her" to explain why she "tested positive"

on the Alcosensor. Nine of the juveniles at the Robinsons'

residence had "measurable levels" of alcohol in their systems

when the police arrived.

The Robinsons were arrested and each was charged with 16

counts of contributing to the delinquency of a minor under

Code § 18.2-371. Both Elisa and George filed motions to

suppress the evidence obtained from Officer Cox's entry onto

their property, arguing that Officer Cox's conduct violated

the Fourth Amendment because he was not in a place that he was

legally entitled to be when he witnessed the illegal activity.

In a letter opinion, the trial court denied the

Robinsons' motions to suppress, finding as matters of fact

that Officer Cox "planned to enter the property to investigate

the allegations of underage consumption of alcohol," and that

he saw the juveniles with beer "[b]efore he reached the point

where the front walkway to the front door intersected with the

driveway." After finding that the driveway was not part of

the curtilage of the Robinsons' home, and therefore did not

implicate the Fourth Amendment, the trial court determined

that Officer Cox's presence on the driveway was lawful because

he had the right to approach a home and knock on the front

door to speak to an occupant. The trial court also found that

Officer Cox's warrantless entry into the backyard was

6
permissible because he "had the requisite probable cause,

which requires that an officer's knowledge of the facts and

circumstances are sufficient to justify a reasonable person to

think an offense is being committed." The trial court denied

the Robinsons' joint motion for reconsideration.

The trial court later granted the Commonwealth's motion

to terminate by nolle prosequi seven of the charges against

each of the Robinsons. Although the Robinsons stipulated that

the evidence was sufficient to sustain convictions on the nine

remaining charges against each of them, they pleaded not

guilty to the charges, thereby preserving their position that

the evidence was illegally obtained and should have been

suppressed. The trial court found both the Robinsons guilty

and sentenced each of them to consecutive terms of six months'

imprisonment, with three months suspended, on each charge.

The Robinsons appealed their convictions to the Court of

Appeals, which consolidated the appeals and affirmed the

convictions in a decision by a three-judge panel. Robinson v.

Commonwealth, 45 Va. App. 592, 622, 612 S.E.2d 751, 765

(2005). The Robinsons later sought and were granted a

rehearing en banc. Robinson v. Commonwealth, 46 Va. App. 23,

24, 614 S.E.2d 667, 667 (2005).

Sitting en banc, the Court of Appeals held that the

Robinsons had impliedly consented to have the public,

7
including police officers, "enter the driveway and front

sidewalk" of their property, and that Officer Cox did not

exceed the scope of this consent either at the point he

observed the juveniles holding beer bottles or when he drove

his car onto the cement pad by the garage.1 Robinson v.

Commonwealth, 47 Va. App. 533, 549-53, 557, 625 S.E.2d 651,

658-59 (2006). The Court of Appeals further held that Officer

Cox's subjective intent was "irrelevant under the

circumstances of this case." Id. at 555, 625 S.E.2d at 661.

The Court of Appeals rejected an argument made by George

that when Officer Cox saw the juveniles with beer bottles, he

should have "left the property or otherwise secured the

premises and then obtained a search warrant." Id. at 543, 625

S.E.2d at 656. The Court of Appeals concluded that there were

exigent circumstances, including possible destruction of

evidence and fleeing suspects, and that Officer Cox did not

manufacture these circumstances, because "the development of

probable cause and the creation of the exigencies were

virtually contemporaneous." Id. at 561-62, 625 S.E.2d at 665.

The Court of Appeals affirmed the Robinsons' convictions. Id.

at 562, 625 S.E.2d at 665.

1
Upon rehearing en banc, the Commonwealth conceded that
the driveway was within the curtilage of the Robinsons' home
and this question was, therefore, not before the entire Court
of Appeals. Robinson, 47 Va. App. at 542, 625 S.E.2d at 655.
8
 The Robinsons filed separate petitions for appeal. We

awarded both appeals and consolidated the cases for our

consideration.

DISCUSSION

We begin by reviewing principles established by the

United States Supreme Court regarding the Fourth Amendment

protection afforded residents and occupants of a dwelling

against unreasonable searches and seizures. The "Fourth

Amendment protects the curtilage of a house and . . . the

extent of the curtilage is determined by factors that bear

upon whether an individual reasonably may expect that the area

in question should be treated as the home itself." United

States v. Dunn, 480 U.S. 294, 300 (1987). When government

agents conduct a search or seizure within protected areas of a

dwelling without a warrant such actions are presumptively

unreasonable, Payton v. New York, 445 U.S. 573, 586-87 (1980),

and unlawful unless they are supported by both probable cause

and exigent circumstances. Kirk v. Louisiana, 536 U.S. 635,

638 (2002).

The Supreme Court has not addressed what expectation of

privacy a resident of a dwelling has in those areas of the

curtilage, such as driveways and sidewalks, that are generally

used by the public to contact the resident. However, a number

of federal and state courts have held that a resident of a

9
dwelling impliedly consents to a police officer entering the

curtilage to contact the dwelling's residents. This implied

consent has the effect of deeming such an entry into the

curtilage a reasonable intrusion into an area otherwise

protected by an expectation of privacy under the Fourth

Amendment. See, e.g., United States v. Taylor, 458 F.3d 1201,

1204 (11th Cir. 2006); United States v. Taylor, 90 F.3d 903,

909 (4th Cir. 1996); Davis v. United States, 327 F.2d 301, 303

(9th Cir. 1964); State v. Christensen, 953 P.2d 583, 587

(Idaho 1998); City of Eugene v. Silva, 108 P.3d 23, 27 (Or.

Ct. App. 2005). Implied consent can be negated by obvious

indicia of restricted access, such as posted "no trespassing"

signs, gates, or other means that deny access to uninvited

persons. See, e.g., Christensen, 953 P.2d at 587-88.

We now turn to the specific issues raised by the

Robinsons in their appeals.

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.

10
 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

11
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");

12
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").2

The Supreme Court recently reiterated this position in a

case decided four months after the Court of Appeals issued its

opinion in the present case. In Brigham City v. Stuart, ___

U.S. ___, 126 S.Ct. 1943 (2006), the Court was asked to

consider the constitutionality of a search conducted after

police officers went to a private residence in response to a

report of a loud party. When the officers arrived at the

residence, they heard shouting coming from inside the house,

2
The exception to this rule involves searches "undertaken
pursuant to a general scheme without individualized
suspicion," in which the Court has examined the "programmatic
purposes" of the action. See, e.g., City of Indianapolis v.
Edmond, 531 U.S. 32, 45-46 (2000). In the present case, Elisa
argues that the police action at her home constituted a
"programmatic" search, thereby making Officer Cox's subjective
intent relevant. Because Elisa did not raise this argument to
trial court or the Court of Appeals, we do not address it
here. Rule 5:25.
13
proceeded down the driveway to investigate, and entered the

backyard after observing juveniles drinking alcoholic

beverages there. Once in the backyard, the officers observed,

through a screen door and a window, an altercation occurring

inside the house. Acting without a warrant, the officers

entered the residence in an attempt to halt the altercation.

The officers later arrested the individuals inside the house

for various offenses, including disorderly conduct and

contributing to the delinquency of a minor. ___ U.S. at ___,

126 S.Ct. at 1946.

The defendants moved to suppress all evidence obtained

after the officers entered the home, arguing that the

officers' warrantless entry violated the Fourth Amendment.

The defendants asserted that the "emergency aid" exception to

the warrant requirement was inapplicable because the officers

did not intend to assist injured individuals in the home, and

"were more interested in making arrests than quelling

violence." ___ U.S. at ___, 126 S.Ct. at 1948.

The Supreme Court unanimously rejected this argument,

stating that, "[a]n action is 'reasonable' under the Fourth

Amendment, regardless of the individual officer's state of

mind, 'as long as the circumstances, viewed objectively,

justify [the] action.' . . . The officer's subjective

motivation is irrelevant." ___ U.S. at ___, 126 S.Ct. at 1948

14
(quoting Scott, 436 U.S. at 138). Focusing solely on the

objective facts presented, the Court concluded:

It therefore does not matter here – even if their
subjective motives could be so neatly unraveled –
whether the officers entered the kitchen to arrest
respondents and gather evidence against them or to
assist the injured and prevent further violence.

Stuart, ___ U.S. at ___, 126 S.Ct. at 1948.

Although the holding in Stuart was based on the

"emergency aid" exception to the warrant requirement, the

Court's rejection of a subjective intent analysis did not rely

exclusively on cases applying that particular exception. The

Court also relied on cases involving an officer's physical

examination of a bus passenger's "carry-on luggage," Bond v.

United States, 529 U.S. 334, 338 n.2 (2000), a traffic "stop"

and resulting seizure of drugs, Whren v. United States, 517

U.S. 806, 813 (1996), claims of excessive force, Graham v.

Connor, 490 U.S. 386, 397 (1989), and government wiretapping

and telephone surveillance, Scott, 436 U.S. at 138. See

Stuart, ___ U.S. ___, 126 S.Ct. at 1948. And, as indicated

above, in several other cases the Court likewise has rejected

consideration of an officer's subjective intent. Thus, we do

not read the holding in Stuart as limited to application of

the emergency aid exception.

We conclude that the holdings in the above cases, when

considered collectively, counsel against consideration of a

15
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.

Our conclusion is not changed by other cases cited by the

Robinsons involving the implied consent doctrine: Rogers v.

Pendleton, 249 F.3d 279 (4th Cir. 2001); Alvarez v. Montgomery

Cty., 147 F.3d 354 (4th Cir. 1998); United States v. Taylor,

90 F.3d 903 (4th Cir. 1996); United States v. Bradshaw, 490

F.2d 1097 (4th Cir. 1974); and Estate of Smith v. Marasco, 318

F.3d 497 (3d Cir. 2003). Although these cases state that an

officer does not violate the Fourth Amendment by entering onto

private property for the limited purpose of contacting,

interviewing, or speaking with an occupant of the property,

the cases do not address the converse proposition advanced by

the Robinsons: that if an officer subjectively intends to do

something other than make these kinds of contacts, the

officer's entry onto private property constitutes a violation

of the Fourth Amendment. The subjective intent of the

officers when entering the premises was not at issue in any of

16
these cases. Moreover, the conclusion urged by the Robinsons

would conflict with the several decisions of the Supreme Court

that we have already noted.

We also observe that in the present case, the trial court

concluded that the officer's purpose in entering the

Robinsons' property was to investigate a report of juveniles

consuming alcoholic beverages. Because the Robinsons did not

assign error to this factual finding, we accept the trial

court's conclusion that Officer Cox's purpose was

investigatory in nature. An investigation may include, as

George's counsel agreed at the suppression hearing, contacting

the occupants of a residence and asking them questions. In

this case, before Officer Cox could contact the Robinsons,

intervening circumstances caused him to pursue a different

course of action.

Accordingly, we reject the Robinsons' suggestion that we

adopt a bright line rule holding that the implied consent

given by a resident of a dwelling is limited in all cases to

entry onto the premises to "knock and talk" to the resident,

and that any deviation from this purpose precludes application

of the implied consent doctrine. As the United States Court

of Appeals for the Fourth Circuit stated in Alverez when

rejecting the same bright line rule advocated by the

defendants in that case:

17
 The textual "touchstone of the Fourth Amendment is
reasonableness." When applying this basic
principle, the Supreme Court has "consistently
eschewed bright-line rules, instead emphasizing the
fact-specific nature of the reasonableness
inquiry."

147 F.3d at 358 (citations omitted).

PROBABLE CAUSE AND EXIGENT CIRCUMSTANCES

We next address an argument made by both Elisa and George

that when Officer Cox reached the path leading from the

driveway to the front door, he lacked probable cause and there

were no exigent circumstances to justify a search of the

backyard or the seizure of any evidence or person in that

location without a warrant. According to the Robinsons,

evidence thus obtained by Officer Cox after entering the

backyard or garage area was the result of an unconstitutional

search and should have been suppressed.3

On review, we will not disturb the factual findings of

the trial court unless plainly wrong or unsupported by the

evidence. Mercer v. Commonwealth, 259 Va. 235, 243, 523

3
Elisa assigns error to the Court of Appeals' finding
that the plain view doctrine justified Cox's actions. George
assigns error to the trial court's holding on the "'plain view
doctrine,' as interpreted by the trial court." Our review of
the trial court's letter opinion, however, indicates that
although the trial court characterized its analysis as a
"plain view" inquiry, the court focused on the existence of
probable cause and exigent circumstances. Accordingly, while
we address the existence of probable cause and exigent
circumstances, we do not consider application of the plain
view doctrine.
18
S.E.2d 213, 217 (2000). The issue of whether an officer acted

with probable cause and under exigent circumstances, however,

is a mixed question of fact and law that we review de novo.

See Brown v. Commonwealth, 270 Va. 414, 419, 620 S.E.2d 760,

762 (2005).

We conclude that the record supports the trial court's

factual finding that Officer Cox had not passed the path

leading to the front door when he saw juveniles in the

backyard holding beer bottles. We also hold that Officer Cox

acted with probable cause and under exigent circumstances when

he proceeded past the path and into the garage area and

backyard without a warrant.

1. Probable Cause

At the hearing on the Robinsons' motions to suppress, the

Commonwealth presented as exhibits photographs showing the

Robinsons' property from various vantage points along the

driveway. On direct examination, Officer Cox identified on

one of the exhibits a bush located immediately before the path

leading to the front door. He testified that when he was

"about at th[at] point" and still in his vehicle, he saw what

appeared to be juveniles holding beer bottles in the vicinity

of a pine tree in the backyard. On cross examination, Officer

Cox testified that although he was able to see people standing

by the pine tree before he reached the path to the front door,

19
he was unable to determine that they were juveniles holding

beer bottles until he actually reached the path. In response

to questions posed by the trial court, Officer Cox testified

that he was "at the bush" when he saw the two juveniles

holding beer bottles.

Because there is evidence in the record to support the

trial court's finding that Officer Cox had not passed the path

when he saw the juveniles holding beer bottles, we cannot say

the trial court's factual conclusion was plainly wrong.

Taking the finding as true, we therefore conclude that Officer

Cox had probable cause to enter the backyard, after having

observed a crime in progress, before he reached the path to

the front door. See Taylor v. Commonwealth, 222 Va. 816, 820,

284 S.E.2d 833, 836 (1981)("[P]robable cause exists when the

facts and circumstances within the officer's knowledge, and of

which he has reasonably trustworthy information, alone are

sufficient to warrant a person of reasonable caution to

believe that an offense has been or is being committed.").

In order to proceed further without obtaining a warrant,

however, exigent circumstances were also required. Horton v.

California, 496 U.S. 128, 137 n.7 (1990)("[N]o amount of

probable cause can justify a warrantless search or seizure

absent 'exigent circumstances.' ")(quoting Coolidge v. New

Hampshire, 403 U.S. 443, 468 (1971)); see also, Payton, 445

20
U.S. at 587-88 ("[A]bsent exigent circumstances, a warrantless

entry to search for weapons or contraband is

unconstitutional."). Therefore, we consider the arguments

advanced by the Robinsons that exigent circumstances were not

present when Officer Cox entered the backyard.

2. Exigent Circumstances

On brief, both George and Elisa argue that Officer Cox

entered the backyard unlawfully because, even if he had

probable cause, there were no exigent circumstances. George

and Elisa further contend that, even if exigent circumstances

did exist, such circumstances were manufactured by Officer Cox

and thus did not justify his entry into the backyard.4 George

claims that at the moment when Officer Cox passed the path to

the front door and entered the garage area, he could not have

reasonably concluded that exigent circumstances were present

because the suspects had not yet seen him approaching. George

asserts Officer Cox entered the garage area for the express

purpose of causing a panicked reaction among the juveniles, a

4
Although Elisa presents this argument to this Court, the
Court of Appeals' en banc opinion notes that during oral
argument she conceded that "if Officer Cox was legitimately
present on the driveway, his subsequent entry into the
backyard would be permissible because the officer had both
probable cause and exigent circumstances." Robinson, 47 Va.
App. at 556 n.10, 625 S.E.2d at 662 n.10. However, because
George also claims that Officer Cox manufactured the exigency
in this case, we must consider this issue on appeal regardless
of any concession by Elisa.
21
reaction Officer Cox himself described as "the effect when you

flick on a light in a dark kitchen, and the cockroaches

scatter." George states this provocative conduct caused the

juveniles to panic and run and thereby created the exigent

circumstances Officer Cox used to justify his warrantless

entry.

A determination of whether exigent circumstances justify

a warrantless entry is not based on an analysis of the

circumstances considered in hindsight, but is focused on

review of the "circumstances as they reasonably appeared to

trained law enforcement officers to exist when the decision to

enter was made." Verez v. Commonwealth, 230 Va. 405, 411, 337

S.E.2d 749, 753 (1985) (quoting Keeter v. Commonwealth, 222

Va. 134, 141, 278 S.E.2d 841, 846 (1981)). The test for

whether exigent circumstances were present is "fact-specific,"

Minnesota v. Olson, 495 U.S. 91, 100 (1990), and we have not

previously attempted to delineate a "final and comprehensive

list of all exigent circumstances which might justify a

warrantless entry." Verez, 230 Va. at 410, 337 S.E.2d at 753.

We have, however, recognized that the following factors have

been considered relevant by other courts:

(1) the degree of urgency involved and the time
required to get a warrant; (2) the officers'
reasonable belief that contraband is about to be
removed or destroyed; (3) the possibility of danger
to others, including police officers left to guard

22
 the site; (4) information that the possessors of the
contraband are aware that the police may be on their
trail; (5) whether the offense is serious, or
involves violence; (6) whether officers
reasonably believe the suspects are armed; (7)
whether there is, at the time of entry, a clear
showing of probable cause; (8) whether the officers
have strong reason to believe the suspects are
actually present in the premises; (9) the likelihood
of escape if the suspects are not swiftly
apprehended; and (10) the suspects' recent entry
into the premises after hot pursuit.

Id. at 410-11, 337 S.E.2d at 753 (citations omitted).

Officer Cox testified that after the juveniles observed

him in his vehicle, they yelled "cops," dropped their beer

bottles, and began running toward the woods behind the house.

When Officer Cox pulled his car into the garage area, he could

still see "kids running towards the woods." He could also see

patio furniture covered with beer bottles, "[b]eer bottles

spread throughout the yard, and kids running away."

Officer Cox stepped out of his vehicle and "yelled for

everybody to stop," but "[n]obody did." He then entered the

backyard to locate the juvenile hosting the party. Officer

Cox indicated that his intent was to "find out what was going

on," and that he was concerned about the juveniles' safety and

"wanted to find out who they were, so [the police] could

contact parents."

Based on this testimony, we conclude that exigent

circumstances justified Officer Cox's entry into the garage

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area and the backyard. At that time, he had already observed

the juveniles consuming alcoholic beverages at the party. Had

Officer Cox left the property to obtain a warrant after the

juveniles began to run from the yard, there is a high

probability that evidence of the crimes would have been

destroyed by the time he returned. Moreover, given the number

of cars parked on the street and in the driveway, Officer Cox

could reasonably have believed that a number of juveniles in

attendance may have been inebriated and could have injured

themselves or others, either by running into the woods at

night or by attempting to drive away from the residence.

These factors constituted exigent circumstances and justified

Officer Cox's warrantless entry into the backyard.5

We find no merit in the argument that Officer Cox

manufactured the exigency. As discussed earlier, Officer

Cox's testimony establishes that he first identified juveniles

5
Other courts have determined that exigent circumstances
may be created by unsupervised juveniles who are under the
influence of alcohol. See, e.g., Radloff v. City of Oelwein,
380 F.3d 344, 348 (8th Cir. 2004) ("Exigent circumstances
existed both because of the loud noise created by the party
and because of the threat to public safety if the juveniles
left the house in cars while under the influence of
alcohol."); Huset v. City of Roseville, No. 05-295, 2006 US
Dist. LEXIS 60165, *12 (D. Minn. 2006) (finding that exigent
circumstances existed when officers found juveniles drinking
at a party, and noting " 'it would have been unreasonable
. . . to quarantine the juveniles' cars during the period of
time [it] would have taken to obtain a warrant' ") (quoting
Radloff, 380 F.3d at 348).
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holding beer bottles when he was in his vehicle at a point

before the driveway intersected the path to the front door,

and that the juveniles observed him and began to run away when

he was still "approximately in [that] location."

Although there is no direct testimony regarding the

period of time that elapsed between Officer Cox's sighting of

the juveniles and the time that they, in turn, observed him

and began to run, Officer Cox's testimony suggests that any

intervening time period was negligible. As the Court of

Appeals stated, the "development of probable cause and the

creation of exigencies were virtually contemporaneous."

Robinson, 47 Va. App. at 561-62, 625 S.E.2d at 665. Given

that there was no significant period of time between the

moment Officer Cox first saw illicit activity and the

occurrence of the ensuing exigencies, we agree with the Court

of Appeals' holding that Officer Cox did not have a meaningful

opportunity to leave the Robinsons' property to obtain a

warrant before proceeding further.

As other courts have recognized, the lack of such

opportunity to secure a search warrant strongly counsels

against a conclusion that the police manufactured exigent

circumstances. See, e.g., United States v. Rico, 51 F.3d 495,

502-03 (5th Cir. 1995) (rejecting manufactured exigency

argument because officers "clearly lacked sufficient time

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between the point at which the circumstances that the agents

claim motivated them to enter [one] residence and the point at

which probable cause to enter [a second] residence

developed"); United States v. Webster, 750 F.2d 307, 327 (5th

Cir. 1984) ("Our first concern in analyzing a claim of

manufactured exigency is whether agents could have obtained a

search warrant prior to the development of the exigent

circumstances upon which they relied."). To suggest that an

officer under the present circumstances was required to leave

the property to obtain a warrant or to approach the front door

to question the occupants ignores the reality of the

situation, namely, that the evidence of juveniles consuming

alcohol on the premises would have been destroyed or otherwise

compromised, and that the juveniles and possibly other

motorists could have been injured, in the absence of immediate

and direct action. Accordingly, we reject the Robinsons'

arguments that Officer Cox's warrantless search was undertaken

in the absence of probable cause and exigent circumstances.

CONCLUSION

For the reasons expressed, we will affirm the judgment of

the Court of Appeals.

Record No. 060417 Affirmed.
Record No. 060426 Affirmed.

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