In Robinson v. Commonwealth, 47 Va. App. 533, 625 S.E.2d 651, 658 (Va. Ct. App. 2006), police responded to a home after receiving reports that an underage drinking party was underway. 625 S.E.2d at 654.
A police officer drove upon Robinson's property and parked his vehicle in the parking area near the garage. From that vantage point the officer observed persons who appeared to be underage holding beer bottles and then fleeing once police presence was observed.
The Court held that "on the night in question, Robinson impliedly consented to have members of the public -- including police officers -- enter the premises in an attempt to contact the residents of that property." Id. at 657.
The Court stated, that " it is generally recognized that, absent any affirmative attempts to discourage trespassers, owners or possessors of private property impliedly consent to have members of the general public intrude upon certain, limited areas of their property." Id.
The Robinson Court went on to say:
This invitation, where it exists, extends only to those areas of the property that would be used when approaching the residence in an ordinary attempt to speak with the occupants. Thus, areas of the curtilage that a visitor could reasonably be expected to cross when approaching the front door -- for example, the driveway, front sidewalk, and front porch -- are generally exempted from Fourth Amendment protection. As a result, if the property owner has impliedly consented to have members of the public use a particular "path" when attempting to access his home, he has waived any reasonable expectation of privacy in areas of the curtilage associated with that "path."
By extension, the same implied consent is extended to police officers who enter the curtilage and, while on the premises, restrict their conduct to those activities reasonably contemplated by the homeowner. Id.
The Robinson court listed a number of factors to determine whether the landowner intended to exclude the public from the premises, including:
"1) whether the homeowner has erected any physical barriers, such as gates or fences, across the entrance to the property, and (2) whether the homeowner has posted signs, such as 'no trespassing' or 'private property' signs, indicating a desire to exclude the public from the premises." Id. at 658.
The Robinson Court concluded that the officer had implied consent from the landowners to enter the premises and park. Id.
In Robinson, the Court then went on to consider whether the officer exceeded the scope of that consent when he discovered underage drinking on the premises. Resolution of this question was said to depend upon the facts and circumstances of each case. Id. at 659.
Relevant factors under that test included:
Whether the officer (1) spied into the house; (2) acted secretly; (3) approached the house in daylight; (4) used the normal, most direct route to the house; (5) attempted to talk with the resident; (6) created an artificial vantage point; and (7) made the discovery accidentally. Id. at 659 n. 7
The Robinson Court noted that uninvited visitors to a home are normally "expected to come to the residence's most direct, obvious, and prominent entryway," and are generally "expected to leave by the same route," unless the circumstances "indicate that the visitor 'could reasonably be expected to seek out residents through areas other than the front door.'" Id. at 659.
Further, the Court observed that entering the residence late at night, especially if accompanied by some subterfuge, may be outside the scope of implied consent:
Furtive intrusion late at night or in the predawn hours is not conduct that is expected from ordinary visitors. Indeed, if observed by a resident of the premises, it could be a cause for great alarm. As compared to open daytime approaches, surreptitious searches under the cover of darkness create a greater risk of armed response -- with potentially tragic results --from fearful residents who may mistake the police officers for criminal intruders. Id.
The Robinson Court ultimately concluded that the police officers did not exceed the scope of the implied consent extended to visitors on the night of the party. Id.
The Court stated:
"Considering the totality of the circumstances, we conclude that, on the night in question, the implied invitation to enter Robinson's premises was still open even at this late hour, and Officer Cox did not exceed the scope of this implied consent when he drove up Robinson's driveway and parked his car in the parking area by the garage." Id. at 660.