Ernest L. Douglas, s/k/a v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Overton
Argued at Richmond, Virginia

ERNEST L. DOUGLAS, S/K/A
ERNEST LEE DOUGLAS
MEMORANDUM OPINION * BY
v. Record No. 2470-95-2 JUDGE JAMES W. BENTON, JR.
AUGUST 5, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge

Andrea C. Long (David E. Boone; Boone, Beale,
Carpenter & Cosby, on brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General; Daniel J. Munroe, Assistant Attorney
General, on brief), for appellee.

Ernest L. Douglas was charged with possession of marijuana

and possession of a firearm after being convicted of a felony.

At the conclusion of the bench trial, the trial judge found

Douglas guilty of both charges. Douglas contends that the trial

judge erred in denying his motion to suppress evidence and his

motion to strike the evidence on the firearm charge. Because we

hold that the police made an unlawful, warrantless search, we

conclude that the evidence should have been suppressed and we

reverse the convictions.

I.

The evidence proved that on October 5, 1994, Officer Crowder

of the Henrico County Police received a "Crime Stoppers tip" from

*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
his supervisor. The tip informed Crowder that Douglas was a

convicted felon, that Douglas resided at 1400 Mountain Road, and

that a recreational vehicle ("RV") was at that address. The tip

also stated that Douglas had another person buy him two rifles at

a gun show, that Douglas had been test-firing the weapons at the

1400 Mountain Road address, and that Douglas had approximately

240 rounds of ammunition. Officer Crowder verified that Douglas

was a convicted felon.
Officers Crowder and Parker went to 1400 Mountain Road at

4:30 that afternoon. The officers drove through an open gate of

a fence surrounding the property and parked outside a warehouse.

Officer Crowder searched on the ground outside the warehouse and

found cartridges that had been fired from a rifle. Through an

open door to the warehouse, Officer Crowder saw an RV parked

inside the warehouse. After he obtained the license plate number

on the RV and used the information to verify that Douglas owned

the RV, Officer Crowder called for additional officers to assist

him.

Sergeant Bishop and two other officers arrived to assist

Officers Crowder and Parker. Sergeant Bishop, who arrived as

darkness was approaching, entered the property without his

headlights on. All of the officers were in uniform, drove

separately in individual police cars, and concealed their

presence on the property. When they were all assembled, two

officers went to the rear of the warehouse and two others joined

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Officer Crowder at the front of the warehouse. Officer Crowder

and the two officers with him entered the warehouse. The

warehouse was dark inside, but as the officers approached the RV,

a motion detector light came on. After the light revealed their

presence, the officers announced that they were Henrico police

officers and told Douglas to step outside the vehicle. Officers

Crowder and Parker had their guns drawn. When Douglas exited the

RV, the officers handcuffed him and frisked him. Officer Crowder

testified that he told Douglas that he was not under arrest and

that he was being secured to protect the safety of the officers.
Officer Crowder then asked Douglas where the weapons were

stored. Douglas responded that weapons were in the warehouse but

that he did not know their exact location. He said that the guns

were possibly next to the office or in the office. After Officer

Crowder looked for the guns and failed to find them, he read

Miranda warnings to Douglas and again asked Douglas where the

guns were. Douglas repeated that if they were anywhere, they

would be in the office.

Douglas told the officers that his son, Earl Douglas, owned

the business. Douglas also told Officer Crowder that he owned

the RV and a pickup truck that was on the premises. Officer

Crowder testified that he asked Douglas "if he had any problem if

[Officer Crowder] searched the recreational vehicle, along with

this pickup truck." He also told Douglas "Look, I'm looking for

guns, I don't care about a little reefer." Officer Crowder

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testified that after he disclaimed interest in the marijuana,

Douglas told him that marijuana was inside the RV and indicated

that he "did not have a problem with" the officers searching the

RV. When Crowder searched the RV, he found a green plant-like

material, which he seized. He later charged Douglas for

possession of the marijuana.

The officers found no guns in the RV. They also searched

the pickup truck but did not find the weapons. After the

officers completed their search of the vehicles, the officers

removed the handcuffs.
Officer Crowder testified that Douglas was handcuffed for a

period of five to seven minutes. Douglas testified, however,

that he was handcuffed for at least an hour and a half. Douglas

also testified that when the officer told him it would take

several hours to get a search warrant, he consented to the search

of the vehicles because he was handcuffed in a position that

caused pain to his recently broken collar bone. Sergeant Bishop

testified that Douglas was handcuffed for five to ten minutes and

that Douglas was no longer in handcuffs when Douglas' son

arrived.

At Douglas' suggestion, the officers contacted his son.

Officer Crowder testified that the police called Douglas' son

fifteen minutes after they first arrived on the premises. Thirty

minutes to an hour after the officers initially arrived, Douglas'

son arrived. Douglas' son testified that when he arrived,

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Douglas was still in handcuffs. Douglas' son also testified that

when he arrived, Officer Crowder approached him outside the

warehouse and asked, "Where are the guns?" In response, Douglas'

son pointed toward the back of the warehouse and stated that the

guns were on a cart under a blanket. The officers went into the

warehouse to the cart, which was located ten or more feet away

from Douglas' RV, and seized the guns. Douglas' son testified

that the officers never asked for his permission to enter the

warehouse or to search for the guns and that he never gave them

permission to enter the warehouse.
The officers arrested Douglas for possession of the

firearms. On the way to the Public Safety Building, Officer

Crowder asked Douglas "about the guns, if he didn't know anything

about them, why they were there, why he was there, the close

proximity of [the guns] to the Winnebago." He testified that

Douglas responded, "I had my son purchase the weapons for me for

protection in the future when there will be no police and there

will only be one way to protect yourself and family."

The trial judge found that the expectation of privacy

Douglas had in his RV did not extend to the warehouse and that

the officers did not conduct an illegal search of the warehouse.

In addition, the trial judge found that because the tip

concerned weapons, the handcuffing and detention of Douglas was

"appropriate and not illegal." The trial judge thus denied the

motion to suppress.

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 At trial, Douglas' son testified that he, not Douglas, owned

the guns and that his friend, Ron Rosel, purchased the guns for

him. The trial judge convicted Douglas of possession of

marijuana and possession of a firearm after being convicted of a

felony.

II.

CARTRIDGES

Douglas argues that the police violated his Fourth Amendment

rights by entering onto the fenced-in land at 1400 Mountain Road

without a search warrant. Douglas, who worked for his son and

lived on the property in his RV, further argues that because the

land was "private," he had a reasonable expectation of privacy in

the entire property. Therefore, he contends that the rifle

cartridges found outside the warehouse should have been

suppressed. We agree.
The Fourth Amendment recognizes reasonable expectations of

privacy in private commercial property. See Marshall v.
Barlow's, Inc., 436 U.S. 307, 311 (1977). The rule that

"warrantless searches are generally unreasonable . . . applies to

commercial premises as well as homes." Id. at 312. "'[T]he

businessman, like the occupant of a residence, has a

constitutional right to go about his business free from

unreasonable official entries upon his private commercial

property.'" Dow Chemical Co. v. United States, 476 U.S. 227, 237

(1986) (citation omitted).
It is true that the Supreme Court has

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 recognized that a business, by its nature,
may open itself to intrusions that would not
be permissible in a purely private context.
The Court has stated: "A government agent,
in the same manner as a private person, may
accept an invitation to do business and may
enter the premises for the very purposes
contemplated by the occupant."

On the other hand, the Court has limited
the scope of this business-premises doctrine.
The Court . . . [has] said: "Of course, this
does not mean that, whenever entry is
obtained by invitation and the locus is
characterized as a place of business, an
agent is authorized to conduct a general
search for incriminating materials . . . ."
The Court has also held that a warrant is
necessary for a search of the portions of
commercial premises which are not open to the
public and government agents cannot attempt
to justify a warrantless search on a claim of
a reduced expectation of privacy on business
premises when the agents do not see the items
as a customer would ordinarily see them.

United States v. Swart, 679 F.2d 698, 701 (7th Cir. 1982)

(citations omitted). Thus, when appropriate indicia manifesting

an expectation of privacy exist, a limited area of "the curtilage

of the business buildings" is subject to Fourth Amendment

protection. Id. at 702.

The evidence proved that the property located at 1400

Mountain Road was leased to Douglas' son, who operated a

warehouse for his business, and to Keith Boyer, who operated a

commercial lawn care business. Both Douglas' son and Boyer

testified that the property was not open to the public for

business and that neither business had customers who came to that

location. The land where the warehouse was located had a fence

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around it. In addition, several "no trespassing" signs were

posted at various locations on the property, including one at the

gate entrance. The entrance gate was normally left open from

7:00 a.m. until 4:00 p.m., and it was locked at night.

The evidence proved that Douglas worked for his son and had

a key to the premises. Douglas resided on the property with his

son's knowledge and permission. In addition to keeping his

pickup truck and RV on the premises, Douglas stored other

personal belongings in the warehouse.
Given these circumstances, we hold that the evidence proved

that Douglas had the right to exclude others from the fenced-in

property. Therefore, he had a reasonable expectation of privacy

in the warehouse and its curtilage and could object to the

warrantless entry made by the police. See Commonwealth v. Ealy,

12 Va. App. 744, 751, 407 S.E.2d 681, 685-86 (1991).

"Once [Douglas] established he had a legitimate expectation

of privacy in the place searched, the Commonwealth had the burden

of proving that the search was legal. 'Generally, searches

conducted without a warrant are per se unreasonable and,
therefore, unlawful under the fourth amendment.'" Id. at 751,

407 S.E.2d at 686 (citation omitted).

When the police entered onto the property they searched the

grounds and found spent cartridges. No evidence proved exactly

where on the grounds they found the cartridges. No evidence

proved the precise distance between the fence and the warehouse.

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 Citing Parker v. McCoy, 212 Va. 808, 188 S.E.2d 222 (1972),

the Commonwealth argues that the police had a right to enter the

fenced-in area and search the property. We do not agree that

Parker sanctions the search in this case. Although in Parker the

Supreme Court stated that "[a] police officer has a law-given

right . . . in the line of his duty to enter a business

establishment to observe at least what is not hidden from view in

the establishment," id. at 811, 188 S.E.2d at 224-25, that ruling

was made on facts that proved the officer entered a poolroom with

a lunch counter that was open and serving the public. See id. at

809, 188 S.E.2d at 223.

The facts in this case proved, however, that the property at

1400 Mountain Road was not open to customers and the business did

not serve customers at that location. The evidence proved that

the property was used by the commercial enterprise for functions

that were unrelated to its customer services. Indeed, the owner

testified that no customers were served from that location and

that the warehouse was used for the non-customer operations of

the business. Moreover, the "no trespassing" signs and the fence

were reasonable indications that visitors were not welcome on the

land and manifested a reasonable expectation of privacy.

Furthermore, the evidence failed to prove that when the officers

entered the property the officers saw the cartridges in a place

that was not hidden from view. The record does not establish the

distance from the fence to the building or otherwise indicate the

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area the police searched. Thus, the evidence failed to prove

that the officers found the cartridges in an area outside the

curtilage of the warehouse.

"It is well settled that the burden is on the Commonwealth

to establish an exception to the warrant requirement." Walls v.

Commonwealth, 2 Va. App. 639, 645, 347 S.E.2d 175, 178 (1986);

see United States v. Jeffers, 342 U.S. 48, 51 (1951). The

evidence in this record failed to prove that the police were

lawfully in a place they were entitled to search when they

entered onto the property and found the cartridges. Thus, the

cartridges were unlawfully seized and the trial judge erred in

admitting them into the evidence.
III.

GUNS AND MARIJUANA

The Commonwealth also asserts that the warehouse was a

public business and that, therefore, the police were entitled to

enter the warehouse. We disagree. The United States Supreme

"Court has already held that warrantless searches are generally

unreasonable, and that this rule applies to commercial premises

as well as homes." Marshall, 436 U.S. at 312. The evidence at

trial proved that the warehouse was not open to the public and

customers did not come to the 1400 Mountain Road address. The

business operations conducted by employees of the business at the

1400 Mountain Road address were unrelated to customer service.

The evidence also proved that the business' administrative

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office, the place where customers' telephone calls were received,

was located at an entirely different location.

The Commonwealth has failed to prove that the officers had a

right to enter the warehouse without invitation. "The owner of a

business has not, by the necessary utilization of employees in

his operation, thrown open the areas where employees alone are

permitted to the warrantless scrutiny of Government agents." Id.

at 315.
That the police could see inside the warehouse when they

searched the grounds did not give them a right to enter the

warehouse. See Wilson v. Health & Hospital Corp., 620 F.2d 1201,

1212 (7th Cir. 1980) (citing Wattenburg v. United States, 388

F.2d 853, 857 (9th Cir. 1968)). A business is not required to

board its windows and doors in order to obtain an expectation of

privacy. See Wilson, 620 F.2d at 1212. Therefore, we hold that

the evidence failed to prove the officers' entry into the

warehouse was lawful.

The Commonwealth argues that Douglas' son consented to the

search that revealed the guns and that his consent was an

independent act of free will that purged the taint of the initial

illegal entry. We disagree. In Walls, the Commonwealth argued
that the defendant's girlfriend's consent purged the taint of the

unlawful entry. See 2 Va. App. at 652, 347 S.E.2d at 182. This

Court rejected that argument and ruled that because "the consent

was not obtained until after the illegal entry, the consent

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itself was a fruit of the poisonous tree unless the Commonwealth

can show that it was obtained through an independent act of free

will, rather than by means of the illegal entry." Id. at 652,

347 S.E.2d at 182-83. To determine whether the consent purged

the taint, we considered (1) the voluntariness of the consent,

(2) the temporal proximity of the illegal entry to the consent,

(3) the presence of intervening circumstances, (4) the purpose

and flagrancy of the police misconduct, and (5) the "declarant's"

knowledge of the right to withhold consent. See id. at 653, 347

S.E.2d at 183.

The evidence in this record proved that the officers never

asked Douglas' son for permission to search the warehouse. The

officers merely asked where the guns were. When Douglas' son

replied by stating that the guns were on a cart, the officers

went into the warehouse, the place they had unlawfully entered,

and seized the guns.

When the Commonwealth seeks to justify a search based on a

consent that is based upon implication, the Commonwealth has a

heavier burden of proof. See Ealy, 12 Va. App. at 752, 407

S.E.2d at 686. Moreover, the "burden [to prove consent] cannot

be discharged by showing no more than acquiescence to a claim of

lawful authority." Bumper v. North Carolina, 391 U.S. 543,

548-49 (1968). Douglas' son's act of answering the officers'

questions does not purge the taint of the prior illegality

because the Commonwealth has failed to prove that he freely

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consented to the search.

The passage of up to an hour between the unlawful entry and

the alleged consent is also insufficient to dissipate the taint.

See Brown v. Illinois, 422 U.S. 590, 604-05 (1975) (stating that

a two hour lapse between an unlawful arrest and a confession was

insufficient to purge the taint). Moreover, Douglas' son's

arrival at the warehouse was not an intervening circumstance that

could purge the taint. Because the officers' decision to call

Douglas' son "'was prompted by what they had [learned] during the

initial [unlawful] entry,'" Ealy, 12 Va. App. at 757, 407 S.E.2d
at 689 (citation omitted), his arrival and purported consent were

tainted by the unlawful entry.

In addition, it is clear that the very purpose of the entry

was to obtain consent to search the warehouse. Immediately after

the officers detained Douglas, they asked him where the guns were

and began searching the warehouse. See Walls, 2 Va. App. at 655,

347 S.E.2d at 184. "It cannot be said, therefore, that the

misconduct . . . was unrelated to the [alleged] consent." Id.

Finally, the record reveals that Douglas' son was never

informed of his right to withhold consent. Based on these

circumstances, we hold that the search of the warehouse was

tainted by the illegal entry of the warehouse. Therefore, the

guns the police found should have been suppressed.

In addition, we hold that the marijuana obtained after

Douglas consented to the search of the RV should have been

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suppressed. Douglas' consent to the search of his RV was tainted

by the unlawful entry into the warehouse. See Walls, 2 Va. App.

at 652-53, 347 S.E.2d at 182-83. First, the voluntariness of

Douglas' consent is questionable. The police officer testified

that before Douglas consented he told Douglas that the police

were not concerned about any marijuana that was present. Second,

the consent occurred during the illegal entry. Thus, the events

could not be more closely connected in time. Third, there were

no intervening circumstances or events that would break the chain

of causation. The consent and the illegal entry were part of the

same interaction between Douglas and the police. Fourth, the

police misconduct was directly related to Douglas' consent to the

search of the RV because the very reason for the entry into the

warehouse was to search the RV in addition to the warehouse.

Finally, no evidence proved that Douglas was aware of his right

to refuse to allow the officers to search the RV. Thus, under

the factors in Walls, the search of the RV was tainted by the
officers' unlawful entry into the warehouse. See id.

Accordingly, we hold that the trial judge erred in admitting the

marijuana into the evidence.

IV.

DOUGLAS' STATEMENTS

Douglas argues that when the officers handcuffed him inside

the warehouse, he was unlawfully arrested. Thus, Douglas argues,

his statements should have been suppressed. Douglas also argues

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that his statements should have been suppressed on the ground

that they were tainted by the illegal entry into the warehouse.

Because we agree that the statements were tainted by the unlawful

search, we need not discuss the detention and handcuffing of

Douglas.

"[T]he prosecution bears the burden of showing that the

confession was not obtained by exploitation of the illegal

[entry]." Hart v. Commonwealth, 221 Va. 283, 288, 269 S.E.2d

806, 809 (1980). We hold that the Commonwealth failed to meet

its burden. Although the statements Douglas made inside the

warehouse may arguably have been voluntary, they were made during

an unlawful search. Thus, as with the marijuana, the statements

were tainted by the unlawful search. No intervening

circumstances occurred that would break the chain of causation.

The fact that the officers gave Douglas his Miranda warnings does
not per se break the causal chain between the illegal entry and

the statement. See id. Thus, the statements Douglas made in the

warehouse should have been suppressed.

The statement Douglas made while in the police car was also

tainted. Although the illegal search had ended, the evidence

proved that the officers obtained the confession by questioning

Douglas about the evidence they had unlawfully obtained at the

warehouse. Thus, the "confession was . . . induced by the

exploitation of the unlawful search" of the warehouse, id. at

289, 269 S.E.2d at 810, and the statement should have been

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suppressed.

We therefore hold that the trial judge erred in admitting

into the evidence Douglas' statements and the items seized in the

unlawful searches. Accordingly, we reverse the suppression

rulings and remand the case to the trial court.

Reversed and remanded.

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Annunziata, J., concurring in part and dissenting in part.

On appeal, Douglas bears the burden of showing that the

trial court's denial of his motion to suppress was plainly wrong

or without evidence to support it. Fore v. Commonwealth, 220 Va.

1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017

(1980). The evidence must be reviewed in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom. Commonwealth v.
Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).

Douglas resided in an RV which he parked inside a warehouse.

The warehouse was used commercially, as part of the business

operation of Douglas' son. Douglas was an employee of his son's

business. A fence enclosed the compound on which the warehouse

was located. In addition to the business operation of Douglas'

son, the enclosed compound housed another, unrelated commercial

enterprise.

I concur in the opinion of the majority that Douglas

maintained a reasonable expectation of privacy in the warehouse

and that the record contains no evidence to support a finding

that the police were justified in entering it. Douglas'

expectation of privacy in the warehouse derived from his rather

unique relationship to it. Douglas both lived and worked inside

the warehouse, which was leased to his son, who was Douglas'

employer. The warehouse contained both personal property of

Douglas and employment-related equipment. Douglas had a key to

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the warehouse and was entitled to exclude others from it.

I disagree with the majority's conclusion, however, that

Douglas maintained a reasonable expectation of privacy in the

outer compound on which the warehouse was located. The compound

was not leased exclusively to Douglas' son. Instead, it was

shared by another commercial enterprise. Neither Douglas, nor

even his son, had the right to exclude others from the outer

compound. The compound itself was surrounded by a fence, but the

gate to the compound, through which the police officers had seen

a regular ingress and egress of traffic, was open during regular

business hours and at the time the officers entered the property

through it. While customers did not frequent the compound to

transact business with either Douglas' son or the other

commercial enterprise, that fact was a function of the nature of

the commercial enterprises themselves, and is not evidence of the

proprietors' intent to exclude the public from the compound.

Indeed, the evidence revealed that, although the compound was

posted with "No Trespassing" signs, the signs were intended to

ward off thieves and vandals, not to exclude the public at large.
Compare, e.g., United States v. Hall, 47 F.3d 1091 (11th Cir.),

cert. denied, 116 S. Ct. 71 (1995), with United States v. FMC

Corp., 428 F. Supp. 615 (W.D.N.Y. 1977); see also Air Pollution

Variance Board v. Western Alfalfa Corp., 416 U.S. 861 (1974); Dow

Chemical Company v. United States, 476 U.S. 227 (1986).

Based on these facts, I believe Douglas did not have a

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reasonable expectation of privacy in the outer compound.

Accordingly, since no "search" of the compound for purposes of

the Fourth Amendment occurred in the present case, the trial

court properly refused to suppress the evidence the police

obtained in plain view from within the compound, viz., the shell

casings and Douglas' license plate number.

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