Jefferson v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder and Overton
Argued at Richmond, Virginia

KENNETH O'NEAL JEFFERSON
OPINION BY
v. Record No. 0716-97-2 JUDGE LARRY G. ELDER
MARCH 31, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY
James E. Kulp, Judge
Steven D. Benjamin (Betty Layne DesPortes;
Benjamin & DesPortes, on briefs), for
appellant.

Marla Graff Decker, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.

Kenneth O'Neal Jefferson (appellant) appeals his conviction

of possession of cocaine in violation of Code § 18.2-250. He

contends the trial court erred when it denied his motion to

suppress (1) evidence obtained during a search of his person on

the night of his arrest and (2) an incriminating statement he

made to police shortly after his arrest. For the reasons that

follow, we reverse and remand.

I.

FACTS

At about 6:00 p.m. on July 25, 1996, Officer Jerome D. Hoyt

of the Henrico County Police Department received information from

a known informant that three people were selling cocaine "at the

corner of Second and Virginia" near 101 North Virginia Avenue.

The informant identified one of the three sellers as "Kenny 'Boo'
Jefferson" and described him as
a black male . . . about five ten or five
eleven inches tall, thin build, short cropped
hair, had big eyes, two gold teeth, wearing a
gr[a]y shirt, long blue jeans, and a gold
chain around his neck.

The informant told Officer Hoyt that he had seen "Kenny 'Boo'

Jefferson" exchange money for "actual crack cocaine" several

times. Officer Hoyt had known this informant for about a month

after arresting him for a misdemeanor charge, which was still

pending. The informant was seeking to help himself on the

misdemeanor charge by cooperating with the police.
After completing his phone call with the informant, Officer

Hoyt called a second known informant and asked him to "go by [101

North Virginia Avenue] to see what was going on." The second

informant called Officer Hoyt a little after 6:30 p.m. and told

him that he saw "Kenny 'Boo'" and two other individuals standing

on the corner of Second and Virginia in front of 101 North

Virginia Avenue. The second informant stated that these three

individuals had "cocaine on their person and for sale" and that

he witnessed "Kenny 'Boo'" complete at least one sale of crack

cocaine. The second informant's description of "Kenny 'Boo'"

matched the description of "Kenny 'Boo' Jefferson" given by the

first informant. Officer Hoyt had known the second informant for

"approximately three or four months." The second informant had a

pending traffic charge against him that was punishable by

incarceration and was cooperating with the police in several

2
matters in order to obtain leniency in the prosecution against

him. Officer Hoyt had worked with the second informant "maybe a

dozen times" and information provided by this informant had led

to several arrests but no actual convictions as of July 25.

Based on the information provided by the two informants,

Officer Hoyt's supervisor initiated an operation to locate the

three individuals who were purportedly selling cocaine in front

of 101 North Virginia Avenue. The police department assembled a

team that included both "strike force" officers and uniformed

officers. Prior to leaving the police department, Officer Hoyt

conveyed the information provided by the informants to the

officers involved in the operation, which included Officer L. D.

Harpster. The police did not obtain either arrest warrants for

the three individuals spotted at the corner of Second and

Virginia or a search warrant for the house at 101 North Virginia

Avenue.
Officer Harpster, Officer Hoyt, and the other officers

involved in the operation arrived at the corner of Second and

Virginia at 10:05 p.m. Officer Harpster testified that, by the

time he exited his vehicle, several officers had already

proceeded to the back of the house at 101 North Virginia Avenue.

Officer Harpster then heard some of these officers "yelling,"

and he walked to the back of the house to investigate this

"commotion."

When the officer arrived, appellant was inside the house at

3
101 North Virginia Avenue, which was his residence. Appellant

heard a "commotion" from outside and walked to his back door.

When appellant opened his back door, he saw "a whole bunch of

police outside [his] house . . . in [the] back yard."

At about this time, Officer Harpster saw appellant and

realized that he matched the description of "Kenny 'Boo'

Jefferson" given by Officer Hoyt. Appellant was standing outside

of the house "right in front" of the back door. Officer Harpster

approached appellant, "put him on the ground[,] . . . put

handcuffs on him and took him into custody." The record does not

indicate whether appellant had moved from his location by his

back door prior to being taken into custody by Officer Harpster.

Although he had "no reason" to suspect that appellant was armed,

Officer Harpster patted down appellant for weapons. The

pat-down, which the record established was not a "full" search of

appellant's person, yielded a "small bottle of liquor" but no

incriminating evidence. Appellant later testified that, at this

point, Officer Harpster told him he was under arrest. Officer

Harpster later testified that he made no such statement to

appellant.
Officer Hoyt approached appellant following the pat-down by

Officer Harpster. Officer Hoyt told appellant that the police

had received information that he was selling drugs and asked

appellant, "Do you mind if I search you for drugs?" Appellant

replied, "You might as well, because he's already done it."

4
Officer Hoyt searched appellant and retrieved .9 of a gram of

crack cocaine and $158 in cash from appellant's "watch pocket."

After seizing the cocaine and cash from appellant's person,

Officer Hoyt told appellant he was under arrest. Appellant was

placed in the custody of Officer Akita Brown, who transported

appellant to "Dabbs House." At about 11:05 p.m., Officer Hoyt

arrived at Dabbs House and informed appellant of his Miranda

rights. Appellant signed a "rights waiver form" and made an

incriminating statement to the police.
Appellant was charged with possessing cocaine with intent to

distribute in violation of Code § 18.2-248. Prior to his trial,

appellant moved the trial court to suppress the cocaine and cash

seized by Officer Hoyt as well as his incriminating statement.

Following a hearing, the trial court denied appellant's motion.

It reasoned:
The Court finds that the police had probable
cause to arrest [appellant], based on the
information from the two informants. . . .
In this case, the Court finds that
[appellant] was not in his house when he was
arrested, but he was outside in the yard and
that Harpster identified him as the person
who fit the description. So the Court finds
they had probable cause to arrest him and, of
course, the search was incident to the
arrest.

Appellant was subsequently convicted of possession of

cocaine in violation of Code § 18.2-250.

II.

WARRANTLESS SEARCH INCIDENT TO ARREST

5
 Appellant contends the trial court erred when it concluded

that Officer Hoyt's search of his person was conducted incident

to a lawful arrest. Appellant argues that Officer Harpster's

arrest of him was unlawful because (1) Officer Harpster lacked

probable cause to believe that appellant had committed a criminal

offense and (2) the arrest was executed within the "curtilage" of

his home without a warrant. Although we find that Officer

Harpster possessed probable cause to arrest appellant, we hold

that the warrantless arrest of appellant in the curtilage of his

home was unlawful.
Generally, evidence obtained by searches and seizures in

violation of a defendant's Fourth Amendment rights is

inadmissible at a criminal trial. See Mapp v. Ohio, 367 U.S.

643, 655, 81 S. Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961); Weeks v.

United States, 232 U.S. 383, 391-93, 34 S. Ct. 341, 344, 58 L.Ed.

652 (1914). 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 establishing standing by proving

that 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 (1978)), and the

Commonwealth has the burden of proving that the relevant searches

or seizures did not violate the defendant's Fourth Amendment

rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380

6
S.E.2d 656, 659 (1989); Alexander v. Commonwealth, 19 Va. App.

671, 674, 454 S.E.2d 39, 41 (1995). On appeal, we view the

evidence in the light most favorable to the prevailing party,

granting to it all reasonable inferences fairly deducible

therefrom. See Commonwealth v. Grimstead, 12 Va. App. 1066,

1067, 407 S.E.2d 47, 48 (1991). We review the trial court's

findings of historical fact only for "clear error," but we review

de novo the trial court's application of defined legal standards

to the particular facts of a case, including determinations of

probable cause. See Shears v. Commonwealth, 23 Va. App. 394,

398, 477 S.E.2d 309, 311 (1996); see also Ornelas v. United

States, 116 S. Ct. 1657, 1663, 134 L.Ed.2d 911 (1996).

In this case, Officer Hoyt recovered the cash and cocaine

from appellant's person during a warrantless search that followed

Officer Harpster's warrantless "arrest." 1 Although searches
1
The trial court characterized the initial encounter between
Officer Harpster and appellant as an "arrest." After reviewing
the evidence in the light most favorable to appellant, who
prevailed on this issue, we cannot say this legal conclusion was
erroneous. Although "[b]rief, complete deprivations of a
suspect's liberty, including handcuffing, 'do not convert a stop
and frisk into an arrest so long as the methods of restraint used
are reasonable to the circumstances,'" Thomas v. Commonwealth, 16
Va. App. 851, 857, 434 S.E.2d 319, 323 (1993), aff'd en banc, 18
Va. App. 454, 444 S.E.2d 275 (1994) (citation omitted),
appellant's testimony, if believed by the trial court, was
legally sufficient to establish that he was arrested by Officer
Harpster. Appellant testified that, after Officer Harpster took
him into custody and patted him down for weapons, he told
appellant, "You're under arrest." Although Officer Harpster
testified that he did not verbally indicate to appellant that he
was under arrest after handcuffing him on the ground, the trial
court, in its role as fact finder, was entitled to credit
appellant's testimony and discount Officer Harpster's testimony
on this issue. See Mills v. Commonwealth, 14 Va. App. 459, 469,

7
conducted without a judicially-issued warrant are per se

unreasonable under the Fourth Amendment, see Katz v. United

States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L.Ed.2d 576

(1967) (citations omitted), one of the established exceptions to

the warrant requirement of the Fourth Amendment is for a "search

incident to a lawful arrest." United States v. Robinson, 414

U.S. 218, 224, 94 S. Ct. 467, 471, 38 L.Ed.2d 427 (1973); see

also Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034,

2040, 23 L.Ed.2d 685 (1969). Thus, the constitutional validity

of Officer Hoyt's warrantless search of appellant is contingent

upon the constitutional validity of Officer Harpster's

warrantless arrest. See Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct.

223, 225, 13 L.Ed.2d 142 (1964).

A.

Appellant first contends he was illegally arrested because

Officer Harpster lacked probable cause to believe that appellant

had committed a criminal offense. Specifically, appellant argues

that the information provided by the two informants that he was

selling cocaine could not provide probable cause to arrest him

because the reliability of this information was not sufficiently

established. We disagree.

"Whether [a warrantless] arrest was constitutionally valid

depends . . . upon whether, at the moment the arrest was made,

the officers had probable cause to make it . . . ." Id. at 91,
418 S.E.2d 718, 723 (1992).

8
85 S. Ct. at 225.
Probable cause exists where "the facts and
circumstances within [the arresting
officers'] knowledge and of which they had
reasonably trustworthy information [are]
sufficient in themselves to warrant a man of
reasonable caution in the belief that" an
offense has been or is being committed.

Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302,

1310-11, 93 L.Ed. 1879 (1949) (quoting Carroll v. United States,

267 U.S. 132, 162, 45 S. Ct. 280, 288, 69 L.Ed. 543 (1925)). The

determination of probable cause by police officers depends upon

"practical considerations of everyday life on which reasonable

and prudent men, not legal technicians, act," Brinegar, 338 U.S.
at 175, 69 S. Ct. at 1310, and courts must view and weigh the

evidence supporting probable cause "'as understood by those

versed in the field of law enforcement.'" Illinois v. Gates, 462

U.S. 213, 231-32, 103 S. Ct. 2317, 2328-29, 76 L.Ed.2d 527 (1983)

(quoting United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct.

690, 695, 66 L.Ed.2d 621 (1981)).

When making a warrantless arrest, an officer "'may rely upon

information received through an informant, rather than upon his

direct observations,'" so long as the officer has reasonable

grounds to believe that the informant's statement is true. Id.

at 242, 103 S. Ct. at 2334 (citation omitted); see also Draper v.

United States, 358 U.S. 307, 312-14, 79 S. Ct. 329, 333, 3

L.Ed.2d 327 (1959). Because the value and reliability of

information provided by informants to the police varies greatly,

9
the veracity of an informant and the basis of his or her

knowledge regarding a particular tip are "relevant

considerations" in the totality-of-the-circumstances analysis

that guides the determination of probable cause. Gates, 462 U.S.

at 232-33, 103 S. Ct. at 2329 (quoting Adams v. Williams, 407

U.S. 143, 147, 92 S. Ct. 1921, 1924, 32 L.Ed.2d 612 (1972)); see

also Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416,

110 L.Ed.2d 301 (1990) (stating that both the content and

reliability of information possessed by the police are considered

when determining whether the totality of the circumstances

justified an officer's determination of probable cause). When

reviewing an officer's determination of probable cause based upon

information provided by an informant, a court should conduct a

"balanced assessment of the relative weights of all the various

indicia of reliability (and unreliability) attending [the]

informant's tip." Gates, 462 U.S. at 234, 103 S. Ct. at 2330;

see also White, 496 U.S. at 230, 110 S. Ct. at 2416.

We hold that, at the time of appellant's arrest, Officer

Harpster had probable cause to believe that appellant had

recently committed a drug offense. Prior to appellant's arrest,

Officer Hoyt told Officer Harpster that a thin African-American

male with gold teeth wearing blue jeans, a gray shirt, and a gold

chain was seen by two informants selling cocaine "in the area of

Second and Virginia" near 101 North Virginia Avenue. Officer

Harpster proceeded to the backyard of 101 North Virginia Avenue

10
and arrested appellant after verifying that he matched the

description provided by the two informants.

The record indicates that the information provided by the

two informants was sufficiently trustworthy to justify Officer

Harpster's belief that appellant had in fact recently sold

cocaine. The reliability of the informants' information was

established by their asserted first-hand knowledge, their

independent corroboration of each other's observations, and one

of the informant's history of providing accurate information to

the police. The first informant, whom Officer Hoyt had known for

about one month, gave a detailed description of appellant's

appearance and told Officer Hoyt that he personally saw appellant

selling cocaine. Officer Hoyt then called the second informant

and told him to "see what was going on" near 101 North Virginia

Avenue. The record does not indicate whether Officer Hoyt told

the second informant anything about the first informant's

observations. The second informant called back about twenty-five

minutes later and corroborated in detail the information provided

by the first informant, including his direct observation of
appellant engaging in transactions involving cocaine. The

veracity of the second informant was bolstered by his previous

work with Officer Hoyt during the preceding three or four months

that had led to several arrests. Based on the totality of these

circumstances, Officer Hoyt and all of the officers whom he

briefed prior to the operation, which included Officer Harpster,

11
had probable cause to arrest appellant.

B.

Appellant next contends that, even if Officer Harpster had

probable cause to believe that he was selling or had sold

cocaine, his arrest was still unlawful because it was executed

within the "curtilage" of his home without a warrant. We agree.

12
 1.

Although the Fourth Amendment permits law enforcement

officers to make warrantless arrests in public places upon

probable cause, see United States v. Watson, 423 U.S. 411,

423-24, 96 S. Ct. 820, 828, 46 L.Ed.2d 598 (1976), warrantless

entries into a suspect's home in order to arrest a suspect

violate the Fourth Amendment unless justified by exigent

circumstances or consent. See Payton v. New York, 445 U.S. 573,

575, 100 S. Ct. 1371, 1374-75, 63 L.Ed.2d 639 (1980). In support

of this "warrant requirement" for entries into the home, the

United States Supreme Court has stated:
In terms that apply equally to seizures of
property and to seizures of persons, the
Fourth Amendment has drawn a firm line at the
entrance to the house. Absent exigent
circumstances, that threshold may not
reasonably be crossed without a warrant.

Payton, 445 U.S. at 589-90, 100 S. Ct. at 1382.

Consistent with the common law understanding of the extent

of the "home," the Supreme Court has held that the Fourth

Amendment protections that apply to the house also apply to the

"curtilage" of the house. See Oliver v. United States, 466 U.S.

170, 180, 104 S. Ct. 1735, 1742, 80 L.Ed.2d 214 (1984) (stating

that the curtilage "has been considered part of the home itself

for Fourth Amendment purposes"); United States v. Dunn, 480 U.S.

294, 301, 107 S. Ct. 1134, 1140, 94 L.Ed.2d 326 (1987) (stating

that areas within the curtilage are "placed under the home's

'umbrella' of Fourth Amendment protection"); Dow Chemical Co. v.

13
United States, 476 U.S. 227, 235, 106 S. Ct. 1819, 1825, 90

L.Ed.2d 226 (1986) (stating that "the curtilage doctrine evolved

to protect much the same kind of privacy as that covering the

interior of a structure"); see also United States v. Van Dyke,

643 F.2d 992, 993 (4th Cir. 1981); State v. Walker, 154 Wis.2d

158, 182-83, 453 N.W.2d 127, 137 (1990); cf. Wellford v.

Commonwealth, 227 Va. 297, 302, 315 S.E.2d 235, 237-38 (1984)

(citing Oliver, 466 U.S. at 180, 104 S. Ct. at 1742). 2
The protection afforded the curtilage is
essentially a protection of families and
personal privacy in an area intimately linked
to the home, both physically and
psychologically, where privacy expectations
are most heightened.

California v. Ciraolo, 476 U.S. 207, 212-13, 106 S. Ct. 1809,

1812, 90 L.Ed.2d 210 (1986). Thus, absent (1) exigent

circumstances and probable cause or (2) consent, law enforcement

agents cannot enter the curtilage of a person's home either to

2
The concept that the legal protections afforded to a
dwelling house also extend to the curtilage originated at common
law. See Dunn, 480 U.S. at 300 & n.3, 107 S. Ct. at 1139 & n.3.
The United States Supreme Court has stated that "[t]he
[curtilage] concept plays a part . . . in interpreting the reach
of the Fourth Amendment" -- apparently because the common-law
understanding of the extent of the home sheds light on the
Framers' intended meaning of the word "houses" in the text of the
Fourth Amendment. See id. at 300, 107 S. Ct. at 1139 (citing
Hester v. United States, 265 U.S. 57, 59, 44 S. Ct. 445, 446, 68
L.Ed. 898 (1924)); Oliver, 466 U.S. at 178-80, 104 S. Ct. at
1741-42; cf. Payton, 445 U.S. at 591 n.33, 100 S. Ct. at 1382-83
n.33 (stating that "[a]n examination of the common-law
understanding of an officer's authority to arrest sheds light on
the obviously relevant, if not entirely dispositive,
consideration of what the Framers of the [Fourth] Amendment might
have thought to be reasonable").

14
search or seize without previously obtaining a warrant. See Van

Dyke, 643 F.2d at 993; Walker, 154 Wis.2d at 182-83, 453 N.W.2d

at 137 (holding that "Payton and Oliver require that police

obtain a warrant before entering either the home or its curtilage

to make an arrest" unless they have both probable cause and

exigent circumstances).

As a general proposition, the curtilage of the home

protected by the Fourth Amendment is the area immediately

surrounding the home "to which extends the intimate activity

associated with the 'sanctity of a man's home and the privacies

of life.'" Oliver, 466 U.S. at 180, 104 S. Ct. at 1742 (citation

omitted). Although the United States Supreme Court has set forth

a general standard defining the extent of the curtilage, whether

a particular place is within the curtilage of the home is

determined on a case-by-case basis. See Dunn, 480 U.S. at 301

n.4, 107 S. Ct. at 1139 n.4 (declining the invitation to adopt a

"bright-line rule" regarding the extent of the curtilage and

stating that a court is required to define the extent of the

curtilage by assessing the factors outlined in Dunn). "[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." Id. at 300, 107

S. Ct. at 1139; see Wellford, 227 Va. at 302, 315 S.E.2d at 238.
[C]urtilage 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

15
 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. Courts applying these

factors should bear in mind that they are intended as flexible,

analytical tools to structure an "extent-of-curtilage" analysis

and that the "centrally relevant consideration" is always

"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." Id. at 301, 107 S. Ct. at 1139-40.

2.

After analyzing the evidence in the record relevant to the

four Dunn factors, we conclude that Officer Harpster entered the

curtilage of appellant's home prior to arresting him. First, the

proximity of the place where Officer Harpster arrested appellant

was extremely close to appellant's house and could not be viewed

by pedestrians and drivers passing in front of the house. The

record established that the back door of appellant's house opened

"directly" into the backyard. The trial court found that

appellant was not in his house when Officer Harpster arrested

him, and this factual finding is supported by Officer Harpster's

testimony that appellant was standing "right in front" of this

door when Officer Harpster first saw him. The record does not

indicate whether appellant moved from this location before

Officer Harpster arrested him. 3 Officer Harpster's testimony
3
Although the trial court found that appellant was "outside

16
indicated that appellant's back door was not visible from the

street and that the officer was required to walk behind

appellant's house before the back door came into his view.

Regarding the "nature of the uses" of the location of appellant's

arrest, the area of a residential backyard immediately adjacent

to the home's back door is commonly understood as "an area . . .

to which the activity of home life extends." Oliver, 466 U.S. at

182 n.12, 104 S. Ct. at 1743 n.12 (stating that the concept of

the curtilage "is a familiar one easily understood from our daily

experience"). Based on this evidence, we conclude that the area

in which appellant was arrested was so intimately tied to the

home that appellant could reasonably expect it to be treated as

part of his home.
Because Officer Harpster's arrest of appellant was executed

after the officer entered the curtilage of appellant's home

without a warrant, we hold that the arrest violated the Fourth

Amendment. Although Officer Harpster had probable cause to

arrest appellant, nothing in the record indicates that his

intrusion into appellant's curtilage was justified by exigent

circumstances. In addition, the record does not prove that

appellant consented to the officer's entry into the curtilage.

in the yard" at the time of his arrest by Officer Harpster, this
factual finding is not supported by any evidence in the record
and is thus "clearly erroneous." Instead, the evidence, when
viewed in the light most favorable to the Commonwealth, indicates
that appellant was "right in front" of his back door at the time
of the arrest.

17
 We disagree with the Commonwealth's argument that this case

is controlled by United States v. Santana, 427 U.S. 38, 96 S. Ct.

2406, 49 L.Ed.2d 300 (1976). In Santana, the defendant was

spotted by the police "standing in the doorway of her house"

after they had probable cause to arrest her. Id. at 40, 96

S. Ct. at 2408. The doorway in question was positioned so that

it "exposed [the defendant] to public view, speech, hearing and

touch as if she had been standing completely outside her house."
Id. at 42, 96 S. Ct. at 2409. As the officers approached, the

defendant "retreated into the vestibule of her house" where the

officers arrested her. Id. at 40-41, 96 S. Ct. at 2408-09. The

United States Supreme Court held that the warrantless arrest

executed inside the defendant's home did not violate the Fourth

Amendment because it was justified by an exigent circumstance:

the arresting officer had "hotly pursued" the defendant into her

home after spotting her in a "public place." See id. at 42-43,

96 S. Ct. at 2409-10. The Supreme Court concluded that the

defendant's doorway was a "public place" because its proximity to

direct interaction with the public rendered it "not . . . an area

where [the defendant] had any expectation of privacy." Id. at

42, 96 S. Ct. at 2409. In an apparent reference to the curtilage

doctrine, the Court stated:
While it may be true that under the common
law of property the threshold of one's
dwelling is "private," as is the yard
surrounding the house, it is nonetheless
clear that under the cases interpreting the
Fourth Amendment [the defendant] was in a
"public" place.

18
Id.

This case is distinguishable from Santana because it did not

involve the hot pursuit of a fleeing felon from a "public place"

into an area protected by the Fourth Amendment's warrant

requirement. 4 Although appellant was standing just outside of

his back door, his door was not situated so that it exposed him

to "public view, speech, hearing, and touch." Id. The record

established that appellant's back door was behind his house and

not visible from the street. As previously discussed, appellant

was within the curtilage of his home when Officer Harpster first

saw him, and the extent of the curtilage is by definition the

area surrounding the home that "an individual reasonably may

expect . . . [to] be treated as the home itself." Id. at 300,

107 S. Ct. at 1139. Thus, unlike the defendant in Santana,

appellant did not retreat into his "home" following a knowing

exposure to the public. He was within his "home" for Fourth

Amendment purposes at all times prior to Officer Harpster's

physical intrusion into the curtilage. See Dunn, 480 U.S. at

4
After deciding Santana, the Supreme Court has consistently
stated that this case represents one of the exceptions to the
rule that warrantless entries into the home or curtilage violate
the Fourth Amendment. Specifically, the Court has stated that
Santana stands for the proposition that "hot pursuit of a fleeing
felon" from a public place is one of the "exigent circumstances"
justifying a warrantless arrest inside the home. See Segura v.
United States, 468 U.S. 796, 811-12, 104 S. Ct. 3380, 3389, 82
L.Ed.2d 599 (1984); Welsh v. Wisconsin, 466 U.S. 740, 750, 104
S. Ct. 2091, 2097, 80 L.Ed.2d 732 (1984); Steagald v. United
States, 451 U.S. 204, 221, 101 S. Ct. 1642, 1652, 68 L.Ed.2d 38
(1981).

19
301, 107 S. Ct. at 1140 (stating that areas within the curtilage

are "placed under the home's 'umbrella' of Fourth Amendment

protection").

Because Officer Harpster's arrest of appellant was unlawful,

the warrantless search incident to this arrest performed by

Officer Hoyt likewise violated the Fourth Amendment. As such,

the trial court erred when it refused to suppress the cocaine and

cash seized during this search. 5
We also hold that the trial court erred when it declined to

suppress appellant's incriminating statement because its

occurrence was not sufficiently attenuated from the unlawful

arrest and search to permit its use at trial. Although appellant

was given his Miranda warnings and signed a written waiver, it is

well established that such a waiver alone does not sever the

causal connection between a Fourth Amendment violation and an

otherwise voluntary confession. See Brown v. Illinois, 422 U.S.

590, 603-05, 95 S. Ct. 2254, 2261-62, 45 L.Ed.2d 416 (1975).

Based on the close proximity in time between the unlawful arrest

and the confession -- about one hour -- and the lack of

5
The Commonwealth argues in its brief that Officer Hoyt's
search was lawful because it was conducted pursuant to
appellant's consent. Assuming that appellant did consent to the
search, the cash and cocaine still should have been suppressed
because appellant's consent was "obtained by exploitation of the
illegality of his arrest." Brown v. Illinois, 422 U.S. 590, 600,
95 S. Ct. 2254, 2260, 45 L.Ed.2d 416 (1975); see Hall v.
Commonwealth, 22 Va. App. 226, 229, 468 S.E.2d 693, 695 (1996);
Commonwealth v. Ealy, 12 Va. App. 744, 757-58, 407 S.E.2d 681,
689-90 (1991).

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intervening circumstances, we conclude that appellant's

confession is rendered inadmissible by its relationship to the

initial illegalities. See Dunaway v. New York, 442 U.S. 200,

218-19, 99 S. Ct. 2248, 2259-60, 60 L.Ed.2d 824 (1979); Brown,

422 U.S. at 604-05, 95 S. Ct. at 2262; Hart v. Commonwealth, 221

Va. 283, 287-89, 269 S.E.2d 806, 809-10 (1980); Watson v.

Commonwealth, 19 Va. App. 659, 665-66, 454 S.E.2d 358, 362

(1995); Corey v. Commonwealth, 8 Va. App. 281, 286 n.1, 381

S.E.2d 19, 21 n.1 (1989).
For the foregoing reasons, we reverse the conviction of

possession of cocaine and remand for further proceedings

consistent with this opinion.

Reversed and remanded.

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