COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Millette
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 2594-07-2 JUDGE LARRY G. ELDER
MARCH 11, 2008
DAVID KURNARD HACKETT
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
J. Peyton Farmer, Judge Designate
Craig W. Stallard, Assistant Attorney General (Robert F. McDonnell,
Attorney General, on briefs), for appellant.
Patricia Kelly (Woodbridge, Ventura & Kelly, P.C., on brief), for
appellee.
David Kurnard Hackett (defendant) stands indicted for possession of a controlled
substance with intent to distribute. Pursuant to Code § 19.2-398, the Commonwealth appeals a
pretrial ruling granting defendant’s motion to suppress the evidence upon which he was indicted
for possessing a controlled substance, which police obtained after viewing what they believed
was an illegal drug transaction that occurred on defendant’s property. This appeal raises two
issues: the first, raised sua sponte by this Court, is whether the Commonwealth’s failure to
comply with the certification requirement of Code § 19.2-400 represented a jurisdictional defect
requiring dismissal of the appeal; and the second, raised by the Commonwealth, concerns
whether the trial court’s ruling suppressing the evidence was erroneous. We hold the failure to
make the certification required by the statute is not a jurisdictional defect and that the trial
court’s ruling suppressing the evidence was not error. Thus, we affirm the granting of the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
motion and remand for additional proceedings consistent with this opinion if the Commonwealth
be so advised.
I.
A.
STATUTORY CERTIFICATION REQUIREMENT
FOR AN APPEAL BY THE COMMONWEALTH
Two different statutory provisions reference the requirement of a certification by the
Commonwealth in the context of pre-trial appeals. Code § 19.2-398 provides:
A. In a felony case a pretrial appeal from a circuit court
may be taken by the Commonwealth from:
* * * * * * *
2. An order of a circuit court prohibiting the use of certain
evidence at trial on the grounds such evidence was obtained in
violation of the provisions of the Fourth, Fifth or Sixth
Amendments to the Constitution of the United States or Article I,
Section 8, 10 or 11 of the Constitution of Virginia prohibiting
illegal searches and seizures and protecting rights against
self-incrimination, provided the Commonwealth certifies that the
appeal is not taken for purpose of delay and that the evidence is
substantial proof of a fact material in the proceeding.
(Emphasis added). Code § 19.2-400 contains similar certification language, providing:
No appeal shall be allowed the Commonwealth pursuant to
subsection A of § 19.2-398 unless within seven days after entry of
the order of the circuit court from which the appeal is taken, and
before a jury is impaneled and sworn if there is to be trial by jury
or, in cases to be tried without a jury, before the court begins to
hear or receive evidence or the first witness is sworn, whichever
occurs first, the Commonwealth files a notice of appeal with the
clerk of the trial court. If the appeal relates to suppressed
evidence, the attorney for the Commonwealth shall certify in the
notice of appeal that the appeal is not taken for the purpose of
delay and that the evidence is substantial proof of a fact material
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to the proceeding. All other requirements related to the notice of
appeal shall be governed by Part Five A of the Rules of the
Supreme Court.
(Emphasis added).
We have previously held that, because Code § 19.2-398 “‘is in derogation of the general
constitutional prohibition against appeals by the Commonwealth[,] . . . [i]t “must be strictly
construed against the state and limited in application to cases clearly falling within the language
of the statute.”’” Commonwealth v. Thomas, 23 Va. App. 598, 607, 478 S.E.2d 715, 719 (1996)
(quoting Commonwealth v. Hawkins, 10 Va. App. 41, 44, 390 S.E.2d 3, 5 (1990) (citations
omitted)). Nevertheless, we have concluded Code § 19.2-398 does not permit us to review for
accuracy the certification required therein and to dismiss for want of jurisdiction any
Commonwealth appeal for which we conclude the evidence suppressed is not “essential to the
prosecution.” Id. at 608-09, 478 S.E.2d at 719-20 (decided under a prior version of Code
§ 19.2-398, which included the language, “provided the Commonwealth certifies the evidence is
essential to the prosecution”). Instead, we have held the prosecutor’s certification pursuant to
Code § 19.2-398 “is not reviewable on appeal.” Id. at 609, 478 S.E.2d at 720. Similarly, here,
we hold that the absence of that certification is not fatal to our acquisition of jurisdiction.
The Supreme Court “[has] repeatedly held,” in both the civil and criminal context, “‘that
the use of “shall,” in a statute requiring action by a public official, is directory and not mandatory
unless the statute manifests a contrary intent.’” Butler v. Commonwealth, 264 Va. 614, 619, 570
S.E.2d 813, 816 (2002) (quoting Jamborsky v. Baskins, 247 Va. 506, 511, 442 S.E.2d 636, 638
(1994)); see also Nelms v. Vaughan, 84 Va. 696, 699-700, 5 S.E. 704, 705-06 (1888). “‘[A]
statute may be mandatory in some respects, and directory in others.’” Ladd v. Lamb, 195 Va.
1031, 1035, 81 S.E.2d 756, 759 (1954) (quoting 82 C.J.S. Statutes § 374, at 868 (1953)).
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Code § 19.2-400 contains both language that is mandatory and language that is directory.
The statute contains mandatory language that “[n]o appeal shall be allowed . . . pursuant to . . .
[§ 19.2-398(A)] unless within seven days after entry of the order . . . , the Commonwealth files a
notice of appeal with the clerk of the trial court.” Code § 19.2-400 (emphasis added); cf.
Johnson v. Commonwealth, 1 Va. App. 510, 511-12, 339 S.E.2d 919, 920 (1986) (holding
language in Rule 5A:6 providing, inter alia, that “No appeal shall be allowed unless, within 30
days after entry of final judgment . . . counsel files with the clerk of the trial court a notice of
appeal,” sets out a time limit that is jurisdictional); Riner v. Commonwealth, 40 Va. App. 440,
454, 579 S.E.2d 671, 678 (2003) (holding timely filing of petition for appeal and timely filing of
notice of appeal under Rule 5A:3 are jurisdictional), aff’d on other grounds, 268 Va. 296, 601
S.E.2d 555 (2004). However, we hold the language in Code § 19.2-400 stating what the notice
of appeal “shall” contain, along with almost identical language in § 19.2-398, is directory only.
See Riner, 40 Va. App. at 454, 579 S.E.2d at 678 (holding that although timely filing of a
petition for appeal under Rule 5A:3 is jurisdictional, “the provisions of Rule 5A:12(c) stating
what the petition ‘shall contain’ . . . are not jurisdictional” and that the Court may consider
“assignments of error added to the petition, with leave of court, at a later date”). Thus, the
Commonwealth’s failure to file the certification described in Code §§ 19.2-398 and -400 is not
jurisdictional. 1
1
We conclude only that the timely filing of the certification is not jurisdictional. We
need not decide whether the Commonwealth’s failure to correct this deficiency after receiving
notice of such failure might provide a non-jurisdictional basis for dismissal of an appeal because
defendant has not moved for a dismissal on these grounds. Cf. Riner, 40 Va. App. at 454, 579
S.E.2d at 678 (in context of holding that Rule 5A:12’s requirements for contents of petition for
appeal are not jurisdictional, concluding that “‘we do not minimize the necessity of adherence to
the . . . Rule[s] by members of the bar’” and that “[a] petitioner who fails to include one or more
issues in his petition for appeal and subsequently asks the Court for leave to enlarge the petition
acts at his peril because the Court is not compelled to grant such leave” (quoting Johnson, 1
Va. App. at 513, 339 S.E.2d at 921)); United States v. Hatfield, 365 F.3d 332, 337-38 (4th Cir.
2004) (under federal statute containing similar certification language, holding that in the case of
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Persuasive authority supports this result. In holding in Thomas, 23 Va. App. at 608-09,
478 S.E.2d at 720, that the Court was not permitted under an earlier version of Code § 19.2-398
to review the certification for accuracy, we concluded that in order to interpret the certification
language, we may look to federal case law interpreting a similar federal statute. The
corresponding federal statute, 18 U.S.C. § 3731, contains certification language very similar to
that in Virginia’s statutes, expressly authorizing an appeal “‘of a district court order suppressing
or excluding evidence . . . if the United States attorney certifies to the district court that the
appeal is not taken for purposes of delay and that the evidence is a substantial proof of a fact
material to the proceeding.’” United States v. Hatfield, 365 F.3d 332, 337 (4th Cir. 2004). The
United States Circuit Courts of Appeals, including our own Fourth Circuit, agree “that the
certification requirement [in the federal statute] is not jurisdictional.” Id.; see also In re Grand
Jury Subpoena, 175 F.3d 332, 337 (4th Cir. 1999).
Accordingly, we proceed to address the merits of the appeal.
B.
MOTION TO SUPPRESS ON FOURTH AMENDMENT GROUNDS
In reviewing the trial court’s ruling on a motion to suppress, “‘“[w]e are bound by the
trial court’s findings of historical fact unless ‘plainly wrong’ or without evidence to support
them,” [and] we review de novo the trial court’s application of legal standards . . . to the
particular facts of the case.’” Robinson v. Commonwealth, 47 Va. App. 533, 544, 625 S.E.2d
651, 656 (2006) (en banc) (quoting McCracken v. Commonwealth, 39 Va. App. 254, 258, 572
S.E.2d 493, 495 (2002) (en banc) (quoting McGee v. Commonwealth, 25 Va. App. 193, 198, 487
S.E.2d 259, 261 (1997) (en banc))), aff’d, 273 Va. 26, 44, 639 S.E.2d 217, 227 (2007); see
the delayed filing of a certificate, “an appellate court may, within its discretion, hear the case
despite the irregularity” and setting out factors to be assessed in determining whether to grant the
defendant’s motion to dismiss the appeal based on the late filing).
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Logan v. Commonwealth, 46 Va. App. 213, 219, 616 S.E.2d 744, 747 (2005) (holding ultimate
conclusion regarding whether reasonable expectation of privacy exists is reviewed de novo).
At a hearing on a defendant’s motion to suppress evidence allegedly obtained in violation
of the Fourth Amendment, the defendant has the burden of proving he had a reasonable
expectation of privacy in the place searched, Barnes v. Commonwealth, 234 Va. 130, 135, 360
S.E.2d 196, 200 (1987) (citing Rakas v. Illinois, 439 U.S. 128, 131 n.1, 99 S. Ct. 421, 424 n.1, 58
L.Ed.2d 387, 393 n.1 (1978)), and the Commonwealth has the burden of proving that the relevant
search or seizure did not violate the defendant’s Fourth Amendment rights, Simmons v.
Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989); Alexander v. Commonwealth,
19 Va. App. 671, 674, 454 S.E.2d 39, 41 (1995). “Absent clear evidence to the contrary in the
record, the judgment of a trial court comes to us on appeal with a presumption that the law was
correctly applied to the facts,” Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d
286, 291 (1977), and the appellant bears the burden of showing that the trial court’s ruling
“‘constituted reversible error,’” McGee, 25 Va. App. at 197, 487 S.E.2d at 261 (quoting Fore v.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)).
“The United States Supreme Court long has held that ‘the curtilage area immediately
surrounding a private house’ is ‘a place where the occupants have a reasonable and legitimate
expectation of privacy that society is prepared to accept.’” Johnson v. Commonwealth, 26
Va. App. 674, 684, 496 S.E.2d 143, 148 (1998) (quoting Dow Chem. Co. v. United States, 476
U.S. 227, 235, 106 S. Ct. 1819, 1825, 90 L. Ed. 2d 226, 235 (1986)).
“[T]he 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.” When government
agents conduct a search or seizure within protected areas of a
dwelling without a warrant such actions are presumptively
unreasonable and unlawful unless they are supported by both
probable cause and exigent circumstances.
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Robinson, 273 Va. at 34, 639 S.E.2d at 221 (quoting United States v. Dunn, 480 U.S. 294, 300,
107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326, 334 (1987)). Because it is undisputed Detective Reed
lacked probable cause to enter onto defendant’s property prior to observing the hand-to-hand
transaction, we must determine whether the evidence supported the trial court’s ruling that the
area Detective Reed entered was constitutionally protected as part of the home’s curtilage.
The United States Supreme Court has held that contemporary
curtilage questions should be resolved with particular reference to
four factors: the proximity of the area claimed to be curtilage to
the home, whether the area is included within an enclosure
surrounding the home, the nature of the uses to which the area is
put, and the steps taken by the resident to protect the area from
observation by people passing by.
Dunn, 480 U.S. at 301, 107 S. Ct. at 1139, 94 L. Ed. 2d at 334-35; see also Wellford v.
Commonwealth, 227 Va. 297, 302-03, 315 S.E.2d 235, 238 (1984) (recognizing that “‘the
curtilage includes the cluster of buildings constituting the habitation or dwelling place, whether
enclosed with an inner fence or not’” (quoting Bare v. Commonwealth, 122 Va. 783, 794, 94
S.E. 168, 172 (1917))). We have recognized that “‘[p]eople commonly have different
expectations . . . for the access areas of their premises than they do for more secluded areas.
Thus, we do not place things of a private nature on our front porches that we may very well
entrust to the seclusion of a backyard, patio or deck.’” Shaver v. Commonwealth, 30 Va. App.
789, 796, 520 S.E.2d 389, 397 (1999) (quoting State v. Corbett, 516 P.2d 487, 490 (Or. 1973)).
“[W]hether [the individual] ‘could reasonably assert control or supervision over, or exclude
others from access to, the place’” is also a relevant factor, Johnson, 26 Va. App. at 685, 496
S.E.2d at 148 (quoting United States v. Nuesca, 945 F.2d 254, 259 (9th Cir. 1991)), but the
presence or absence of a property interest is not dispositive, Oliver v. United States, 466 U.S.
170, 183, 104 S. Ct. 1735, 1743-44, 80 L. Ed. 2d 214, 227 (1984); see Minnesota v. Carter, 525
U.S. 83, 89, 119 S. Ct. 469, 473, 142 L. Ed. 2d 373, 379-80 (1998) (recognizing overnight
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houseguest may have legitimate expectation of privacy in the home of another). The relevant
decisions do “not suggest that combining these factors produces a finely tuned formula” but
rather that “these factors are useful analytical tools” for analyzing “the centrally relevant
consideration—whether the area in question is so intimately tied to the home itself that it should
be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Dunn, 480 U.S. at
301, 107 S. Ct. at 1139-40, 94 L. Ed. 2d at 335.
Here, the evidence supported the conclusions that the portions of defendant’s backyard at
issue were areas within the curtilage of the home in which he had a reasonable expectation of
privacy at the time of the events at issue. The evidence also supported the conclusion that
Detective Reed was able to see the hand-to-hand transaction within the curtilage only because he
himself intruded into the curtilage by climbing the fence and that the Commonwealth failed to
prove Detective Reed’s presence there did not violate defendant’s Fourth Amendment rights.
Defendant’s home was located at the end of a dead-end street. Although the home was
adjacent to the fairgrounds, an industrial park, and a church, it was separated from each of those
properties by a fence. The presence of the fence separating defendant’s property from the
property of the fairgrounds provided defendant with the reasonable expectation that the fence,
whether or not it belonged to him, would exclude anyone on fairgrounds property from coming
closer to his home than the fence would allow. Further, although Detective Reed testified he did
not know precisely where the property line lay between defendant’s home and the adjacent
fairgrounds, he also testified that the fence he climbed “runs . . . right down the edge of the
Mayfield subdivision” and that, after he climbed the fence and walked along the fence line for an
undisclosed distance, he was “within six or seven feet of [defendant’s] house,” between the fence
and the house. (Emphases added). It was from that location, six or seven feet from defendant’s
house, that Detective Reed was able to see defendant and the informant engage in the
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hand-to-hand transaction “across the yard” “on the opposite side,” about twenty-five feet away
from Reed.
The evidence, viewed in the light most favorable to defendant, also supported the
inference that the hand-to-hand transaction that occurred behind defendant’s residence after
5:45 p.m. on February 8, 2007, was not visible from either the fairgrounds property at the side
rear of the residence or the public street in front of the residence. No evidence established what
type of fencing surrounded the fairgrounds or whether the area was lighted on the evening in
question, and the trial court was entitled to draw the reasonable inference that if Detective Reed
had been able to see defendant’s backyard clearly from the fairgrounds property, he would not
have needed to scale the fence and walk along the fence line for an undisclosed distance in order
to conduct his surveillance. Also, although the evidence established two other detectives were
involved in the surveillance and that all three proceeded to defendant’s house when the informant
did, no one other than Detective Reed testified that he or she was able to view the location in
defendant’s yard where the transaction took place from a vantage point other than the one
Detective Reed occupied inside the curtilage.
Thus, the evidence, viewed in the light most favorable to defendant, supported the trial
court’s conclusion that the hand-to-hand transaction occurred within the curtilage of defendant’s
home and that Detective Reed, also inside the curtilage, was not in a place from which he could
legitimately view that transaction for purposes of the Fourth Amendment. Compare Jefferson v.
Commonwealth, 27 Va. App. 1, 17, 497 S.E.2d 474, 482 (1998) (concluding appellant had
reasonable expectation of privacy in the place of his arrest because “the proximity of the place
where [the officer] arrested appellant was extremely close to appellant’s house and could not be
viewed by pedestrians and drivers passing in front of the house”), with Robinson, 47 Va. App. at
549-53, 625 S.E.2d at 658-59 (holding appellants lacked reasonable expectation of privacy in
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activity observed by police officers legitimately in their driveway and on their front walk
because they had impliedly consented to having members of the public in these areas), and
Shaver, 30 Va. App. at 793, 797, 520 S.E.2d at 395, 397 (holding appellant lacked an expectation
of privacy in the stolen ATV located in a driveway that was wholly visible from the road and that
the presence of officers in this publicly accessible part of the curtilage to view the stolen ATV
more closely did not implicate the Fourth Amendment). Accordingly, the trial court’s decision
to grant the motion to suppress was not error.
II.
For these reasons, we hold the failure to make the certification required by the statute is
not a jurisdictional defect and that the trial court’s ruling suppressing the evidence was not error.
Thus, we affirm the granting of the motion and remand for additional proceedings consistent
with this opinion if the Commonwealth be so advised.
Affirmed and remanded.
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