COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Frank and Kelsey
JAMES GREGORY LOGAN
OPINION BY
v. Record No. 0468-06-3 JUDGE D. ARTHUR KELSEY
MARCH 10, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
David A. Melesco, Judge
S. Jane Chittom, Appellate Defender (Public Defender
Commission, on briefs), for appellant.
Donald E. Jeffrey, III, Assistant Attorney General
(Robert F. McDonnell, Attorney General, on brief), for
appellee.
This case returns to us on remand from the Virginia Supreme Court “for a review of
Logan’s challenge to the trial court’s determination that the police officer’s actions did not
constitute bad faith.” Logan v. Commonwealth, 276 Va. 533, 536, 666 S.E.2d 346, 348 (2008).
Having now reviewed that challenge, we find it meritless.
I.
In 2002, the trial court convicted Logan of selling cocaine. A year later, while on
probation, Logan was arrested for possession of cocaine. At trial on the 2003 possession charge,
Logan claimed the exclusionary rule barred the admission of the cocaine because the arresting
officer entered a common area of Logan’s rooming house without a warrant. It was in this
common area, a stairway landing, that the officer observed Logan possess cocaine. The trial
court denied the motion to suppress, holding Logan had no reasonable expectation of privacy in
the common areas of the rooming house.
On appeal, two of three judges of a panel of this Court disagreed with the trial court.
Citing State v. Titus, 707 So. 2d 706, 708 (Fla. 1998), the panel majority held “rooming house
residents have an actual expectation of privacy in the common areas of the rooming house”
unless the house is open to the general public. Logan v. Commonwealth, 46 Va. App. 213, 221,
616 S.E.2d 744, 747 (2005). The panel majority rejected as “unpersuasive” the contrary holding
of United States v. Anderson, 533 F.2d 1210 (D.C. Cir. 1976), which held:
When the police officers entered the rooming house they did not
enter appellant’s private dwelling; instead they merely entered the
common corridors of the building, which were available to
residents of the rooming house, their guests, people making
deliveries, and others who had a legitimate reason to be on the
premises. Consequently, insofar as appellant maintains that he had
a constitutionally protected reasonable expectation of privacy in
the corridors of the rooming house, we disagree; appellant’s
constitutionally protected privacy interest began at the door to
room eight rather than at the door to the entire rooming house.
Logan, 46 Va. App. at 223, 616 S.E.2d at 749 (quoting Anderson, 533 F.2d at 1214).
In contrast, the panel dissent found Anderson persuasive and agreed with the trial judge
that Logan had no reasonable expectation of privacy in a common area of a multi-tenant rooming
house. The Anderson approach, the dissent noted, parallels the view taken by a “majority of
federal courts” addressing the analogous context of common areas (and in particular hallways) of
apartment buildings. Id. at 232, 616 S.E.2d at 753 (Haley, J., dissenting) (citations omitted).
Upon reviewing the case en banc, we focused on a purely factual concession made by the
Commonwealth on appeal that the rooming house “was not open to the general public.” Logan
v. Commonwealth, 47 Va. App. 168, 170, 622 S.E.2d 771, 772 (2005) (en banc) (emphasis
added). On this narrow ground, we reversed the trial court. In our ruling, however, we refused
to resolve the split in precedents between the “broad view of the privacy interests associated with
rooming houses” (illustrated by Titus) and the “more narrow approach” (best described in
Anderson), which refused to find a privacy interest in the common areas of boarding houses. Id.
at 171, 622 S.E.2d at 773. “For purposes of this appeal,” the en banc Court made clear, “we
need not endorse or reject either view.” Id. “To go further than the Commonwealth’s
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concession,” we explained, “would conflict with two principles of judicial self-restraint: our
reluctance to issue what amounts to an ‘advisory opinion’ on an inessential subject and our
corresponding desire to decide the case ‘on the best and narrowest ground available.’” Id. at 171
n.3, 622 S.E.2d at 773 n.3 (citations omitted). The case ended there. The Commonwealth did
not seek further review by the Virginia Supreme Court.
Back in the trial court, the earlier 2002 conviction returned to the docket to determine
whether Logan violated his probation by possessing cocaine. Logan argued the exclusionary rule
prohibited the cocaine from being admissible in his probation revocation proceeding for the same
reason it was excluded from his criminal trial. The trial court disagreed, as did we. Central to
our analysis was the United States Supreme Court’s unqualified admonition that it had
“repeatedly declined to extend the exclusionary rule to proceedings other than criminal trials.”
Penn. Bd. of Probation & Parole v. Scott, 524 U.S. 357, 363 (1998).
The particular “other” non-criminal-trial proceeding in Scott was a state parole
revocation hearing. Given the ratio decidendi of Scott, 1 we found “no relevant distinction
between the Supreme Court’s application of the exclusionary rule to parole revocation hearings
and our application of the rule to probation violation hearings.” Logan v. Commonwealth, 50
Va. App. 518, 524, 651 S.E.2d 403, 406 (2007); see generally Gagnon v. Scarpelli, 411 U.S. 778,
782 & n.3 (1973) (recognizing the “undoubted minor differences between probation and parole,”
but noting “revocation of probation where sentence has been imposed previously is
constitutionally indistinguishable from the revocation of parole”) (cited in Scott). 2
1
See generally Congdon v. Congdon, 40 Va. App. 255, 265, 578 S.E.2d 833, 838 (2003)
(observing that stare decisis “applies not merely to the literal holding of the case, but also to its
ratio decidendi — the essential rationale in the case that determines the judgment”).
2
See also United States v. Armstrong, 187 F.3d 392, 394 (4th Cir. 1999) (holding that
“the reasoning of Scott applies equally to supervised release revocation proceedings as to parole
revocation proceedings”); United States v. Hebert, 201 F.3d 1103, 1104 (9th Cir. 2000) (“Scott
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The Virginia Supreme Court disagreed, however, and read Scott narrowly to apply only
to parole revocation — but not probation revocation — proceedings. Logan, 276 Va. at 536, 666
S.E.2d at 347-48. This interpretation of Scott left standing a pre-Scott ruling in Anderson v.
Commonwealth, 251 Va. 437, 440, 470 S.E.2d 862, 863 (1996), which held the exclusionary rule
applies to probation violation proceedings if the defendant proves “bad faith on the part of the
police.” The case was remanded to us “for a review of Logan’s challenge to the trial court’s
determination that the police officer’s actions did not constitute bad faith.” Logan, 276 Va. at
536, 666 S.E.2d at 348.
II.
Since the remand of this case to us, the United States Supreme Court decided Herring v.
United States, 129 S. Ct. 695 (2009). Clarifying the scope of the exclusionary rule, Herring held
the “fact that a Fourth Amendment violation occurred — i.e., that a search or arrest was
unreasonable — does not necessarily mean that the exclusionary rule applies.” Id. at 700.
Because “the exclusionary rule is not an individual right,” prior precedent had “repeatedly
rejected the argument that exclusion is a necessary consequence of a Fourth Amendment
violation.” Id.
“To trigger the exclusionary rule,” Herring held, the challenged “police conduct must be
sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that
such deterrence is worth the price paid by the justice system.” Id. at 702. This case-specific,
applies equally to suppression of evidence in federal supervised release proceedings”); State v.
Martin, 595 N.W.2d 214, 216 (Minn. Ct. App. 1999) (applying Scott to probation revocation
proceeding because there is “no material distinction between the probation and parole systems”);
Commonwealth v. Lehman, 851 A.2d 941, 943 (Pa. Super. Ct. 2004) (finding Scott applicable to
probation violation because “the constitutional rights of a parolee are indistinguishable from
those of a probationer”); State v. Jarman, 987 P.2d 1284, 1287 (Utah Ct. App. 1999) (concluding
“we are bound by Scott” and holding the exclusionary rule “does not apply in the context of
probation revocation proceedings”); State v. Wheat, 647 N.W.2d 441, 447 (Wis. Ct. App. 2002)
(noting Scott and finding “little reason to distinguish between illegally obtained evidence leading
to a parole revocation proceeding and illegally obtained evidence leading to a probation search”).
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two-pronged test — requiring both deliberateness and culpability — serves as a prerequisite for
the application of the exclusionary rule.
Herring also deemphasized any subjectivity from the deliberateness-and-culpability test.
“The pertinent analysis of deterrence and culpability is objective, not an ‘inquiry into the
subjective awareness of arresting officers.’” Id. at 703 (citation omitted). That is, the “good-
faith inquiry is confined to the objectively ascertainable question whether a reasonably well
trained officer would have known that the search was illegal” in light of “all of the
circumstances.” Id. (citation omitted). 3 “These circumstances frequently include a particular
officer’s knowledge and experience, but that does not make the test any more subjective than the
one for probable cause, which looks to an officer’s knowledge and experience, but not his
subjective intent.” Id. (citation omitted). 4
The circumstances of Logan’s case fall far short of the Herring standard. Logan does not
contest that he possessed cocaine in a common area (a stairway landing) of his rooming house.
Rather, his complaint is that a police officer was there to see it. Recognizing that this was a
matter of first impression in Virginia, a splintered panel of our Court could not address the
subject with either unanimity or finality. Relying on a Florida decision, Titus, the panel majority
agreed with Logan. Relying on a decision of the United States Court of Appeals of the District
of Columbia, Anderson, as well as a battery of cases addressing the analogous context of
apartment buildings, the panel dissent disagreed with Logan. Sitting en banc, we endorsed
3
The Commonwealth correctly frames the issue before us in just these terms: “[T]he
sole issue before this Court is whether an objectively reasonable officer in [the arresting
officer’s] position could have believed that the defendant had no reasonable expectation of
privacy in the hallway where [the officer] observed the illegal activity.” Appellee’s Br. at 9
(emphasis omitted).
4
The objective standard parallels the general approach applied to Fourth Amendment
issues. For purposes of assessing the objective legality of an officer’s actions, his “subjective
motivation is irrelevant.” Robinson v. Commonwealth, 273 Va. 26, 37, 639 S.E.2d 217, 223
(2007) (quoting Brigham City v. Stuart, 547 U.S. 398, 404 (2006)).
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neither the narrow nor the broad view, finding instead that the Commonwealth’s factual
concession on appeal had mooted the legal debate.
The very presence of a principled disagreement among our colleagues on this issue
strongly militates against the conclusion that a “reasonably well trained officer,” Herring, 129
S. Ct. at 703, would have known that Logan had a reasonable expectation of privacy in a stairway
within a common area of a multi-tenant rooming house. To be sure, in cases where experienced
jurists disagree among themselves as to the legality of the police conduct, we can hardly expect
law enforcement officers to predict which contesting juristic view will ultimately prevail and
become binding precedent. In such situations, it would be hyperbolic to accuse police officers of
bad faith when they merely guess wrong. See United States v. Leon, 468 U.S. 897, 926 (1984)
(noting that because the legal question created “disagreement among thoughtful and competent
judges,” the judicial application of the “extreme sanction of exclusion is inappropriate”).
We similarly reject Logan’s assertion that our en banc opinion requires a finding of bad
faith and, therefore, application of the exclusionary rule. We limited our holding to the
Commonwealth’s factual concession, made on appeal, that the rooming house (including its
common area stairways) was not open to the public — thus establishing Logan’s reasonable
expectation of privacy. But we never held the police officer knew or should have known of that
newly conceded fact. To the contrary, the officer testified he had previously been “inside the
rooming house” and did not see any signs suggesting it was not open to the public. Logan, 46
Va. App. at 218, 616 S.E.2d at 746 (superseded panel opinion). 5 That he was mistaken,
however, does not mean he acted in bad faith.
5
We likewise reject Logan’s argument on brief that the Commonwealth waived any right
to argue good faith by abandoning the argument on appeal that the officer reasonably mistook
Logan for another man wanted on a warrant. Appellant’s Br. at 10-12. Neither the
Commonwealth’s argument, see Appellee’s Br. at 8, nor our holding turns on the strength or
accuracy of the officer’s identification of Logan.
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III.
In sum, the remand mandate instructed us to review “Logan’s challenge to the trial
court’s determination that the police officer’s actions did not constitute bad faith.” Logan, 276
Va. at 536, 666 S.E.2d at 348. Considering Logan’s challenge in light of Herring, we affirm
the trial court’s finding that the officer’s actions did not warrant excluding the cocaine
evidence offered during Logan’s probation violation hearing.
Affirmed.
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