COURT OF APPEALS OF VIRGINIA 

Before: Chief Judge Fitzpatrick, Judges Benton, Elder, Bumgardner, Frank, Humphreys, 

 Clements, Felton, Kelsey, McClanahan and Haley 

Argued at Richmond, Virginia 

JAMES GREGORY LOGAN 

 OPINION BY 

v. Record No. 0852-04-3 JUDGE D. ARTHUR KELSEY 

 DECEMBER 13, 2005 

COMMONWEALTH OF VIRGINIA 

UPON REHEARING EN BANC 

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE 

Joseph W. Milam, Jr., Judge 

 S. Jane Chittom, Appellate Defender (Virginia Indigent Defense 

Commission, on brief), for appellant. 

 Donald E. Jeffrey, III, Assistant Attorney General (Judith Williams 

Jagdmann, Attorney General, on briefs), for appellee. 

Convicted of possession of cocaine, James Gregory Logan argues on appeal that the trial 

court erred by not suppressing evidence obtained during a warrantless entry into Logan’s 

rooming house. We agree with Logan and reverse his conviction. 

I. 

Looking for someone else, a police officer entered the rooming house where Logan 

resided. The rooming house was an old home converted to board fifteen residents. The officer 

had no arrest warrant for Logan or any search warrant for the rooming house. Once inside, the 

officer saw Logan walking up a flight of steps to his room on the third floor. Unaware that the 

officer was observing him, Logan handed a piece of crack cocaine to another person. The officer 

then arrested Logan for possession of cocaine. 
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The evidence at the suppression hearing was in conflict on the extent to which the 

rooming house was open to the general public. The officer suggested it was, but another resident 

testified that two no-trespassing signs were posted on or near the front door, suggesting only 

residents and invited guests could enter the rooming house. The trial court denied the motion to 

suppress, holding that the officer did not violate the Fourth Amendment by entering the rooming 

house without a warrant. 

On appeal, the Commonwealth conceded to a panel of this Court that the rooming house 

was not open to the general public. The panel relied on this concession and, coupled with 

additional reasoning, held that Logan possessed a reasonable expectation of privacy in the 

interior common areas of the rooming house. Logan v. Commonwealth, 46 Va. App. 213, 

222-23, 616 S.E.2d 744, 748 (2005) (observing that “at oral argument the government concedes 

the rooming house was not a place open to the general public”).1 At the Commonwealth’s 

request, we agreed to set aside our panel opinion and to reconsider the matter en banc. 

II. 

Though the ultimate question whether a reasonable expectation of privacy exists in a 

rooming house involves an issue of law, we address that question only after the relevant 

historical facts have been established. In this case, the Commonwealth conceded that Logan’s 

rooming house ⎯ a private home converted to board fifteen residents ⎯ was not open to the 

general public.2

 It naturally follows, as a matter of law, that residents of this rooming house 

 1

 The panel also rejected the Commonwealth’s alternative argument that the officer 

reasonably, but mistakenly, believed Logan was another man wanted by police on a pending 

arrest warrant. During our en banc hearing, the Commonwealth expressly withdrew this 

argument as a basis for affirming the trial court’s judgment. We thus express no opinion on this 

subject. 

2

 The defendant alone bears the “burden of proving” factual circumstances giving rise to 

a reasonable expectation of privacy. Sharpe v. Commonwealth, 44 Va. App. 448, 455, 605 

S.E.2d 346, 349 (2004); see also Bell v. Commonwealth, 264 Va. 172, 190, 563 S.E.2d 695, 708 
 - 3 - 

would have a reasonable expectation of privacy in the interior common areas that had been 

placed off-limits to the general public ⎯ areas thereby reserved for the private use of the 

rooming house residents and their invited guests. This conclusion remains true whether we take 

a broad view of the privacy interests associated with rooming houses, as Logan urges us to do, 

see, e.g., State v. Titus, 707 So. 2d 706, 709 (Fla. 1998) (holding that a resident of a rooming 

house has a privacy interest in common areas not “open to the general public”), or a more narrow 

approach, as the Commonwealth contends we should, see, e.g., United States v. Anderson, 533 

F.2d 1210, 1214 (D.C. Cir. 1976) (refusing to recognize a privacy interest in a rooming house 

open to anyone with a “legitimate reason to be on the premises”). For purposes of this appeal, 

we need not endorse or reject either view. 3 See generally 1 Wayne R. LaFave, Search & Seizure

§ 2.3(b), at 569-70 (4th ed. 2004). 

The Commonwealth argues we should not decide this case based upon the concession, 

but should instead make an independent judgment on this subject. Our duty of exercising de 

novo judgment, however, plays no role in determining the contested facts of a case. Those are 

for the litigants to develop and the factfinder to decide. We review de novo only the “ultimate 

question” whether the officer violated the Fourth Amendment. Kyer v. Commonwealth, 45 

 

(2002). This is not a mere burden of production, requiring only a going forward with the 

evidence; it is a “burden of persuasion,” United States v. Lewis, 40 F.3d 1325, 1333 (1st Cir. 

1994), requiring the defendant to prove to the satisfaction of the factfinder the existence of those 

facts upon which a legal conclusion can be drawn. 

3

 To go further than the Commonwealth’s concession, we believe, “would conflict with 

two principles of judicial self-restraint: our reluctance to issue what amounts to an ‘advisory 

opinion’ on an inessential subject, Craddock v. Commonwealth, 40 Va. App. 539, 551 n.1, 580 

S.E.2d 454, 461 n.1 (2003), and our corresponding desire to decide the case ‘on the best and 

narrowest ground available.’ Air Courier Conference v. Am. Postal Workers Union, 498 U.S. 

517, 531 (1991) (Stevens, J., concurring).” Johnson v. Commonwealth, 45 Va. App. 113, 117 

n.3, 609 S.E.2d 58, 60 n.3 (2005). 
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Va. App. 473, 479, 612 S.E.2d 213, 216-17 (2005) (en banc); Slayton v. Commonwealth, 41 

Va. App. 101, 105, 582 S.E.2d 448, 449-50 (2003). 

Our fidelity to the uniform application of law precludes us from accepting concessions of 

law made on appeal. Because the law applies to all alike, it cannot be subordinated to the private 

opinions of litigants.4

 An entirely different paradigm, however, applies to questions of fact 

unique to the litigants and specific to the circumstances of each particular case. Thus the maxim: 

“A party can concede the facts but cannot concede the law.” Cofield v. Nuckles, 239 Va. 186, 

194, 387 S.E.2d 493, 498 (1990); see also Tuggle v. Commonwealth, 230 Va. 99, 111 n.5, 334 

S.E.2d 838, 846 n.5 (1985). On purely factual questions, therefore, we can and do rely on the 

adversarial process to sort out the contested and the uncontested aspects of the case before we 

begin our responsibility of applying de novo the correct legal principles. 

III. 

By making a warrantless entry into Logan’s rooming house, the police officer violated 

the Fourth Amendment. Thus, the officer’s observations once inside the house cannot be used 

against Logan. There being no other inculpatory evidence supporting the charge, we reverse 

Logan’s conviction and dismiss the indictment for possession of cocaine. 

 Reversed and indictment dismissed.

 4

 For similar reasons, an “appellate court cannot vacate a criminal conviction that violates 

no recognizable legal principle simply on the ground that the prosecutor (or, for that matter, the 

trial judge) did not articulate the proper legal basis for it.” Blackman v. Commonwealth, 45 

Va. App. 633, 642, 613 S.E.2d 460, 465 (2005). This principle must be distinguished, however, 

from an appellant’s concession of law that qualifies either as a waiver for purposes of Rule 

5A:18 or as an express withdrawal of an appellate challenge to a trial court judgment. In either 

scenario, we may accept the concession ⎯ not as a basis for deciding the contested issue of law, 

but as a basis for not deciding it. 
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Benton and Elder, JJ., concurring in the judgment reversing the conviction. 

For the reasons contained in the majority panel opinion, Logan v. Commonwealth, 46 

Va. App. 213, 616 S.E.2d 744 (2005), we would reverse the conviction and dismiss the 

indictment. We, therefore, concur in the judgment reversing the conviction and dismissing the 

indictment. 
VIRGINIA: C O R R E C T E D C O P Y

In the Court of Appeals of Virginia on Tuesday the 30th day of August, 2005. 

James Gregory Logan, Appellant, 

 against Record No. 0852-04-3 

 Circuit Court No. CR03-1637 

Commonwealth of Virginia, Appellee. 

Upon a Petition for Rehearing En Banc 

Before the Full Court 

 On August 16, 2005 came the appellee, by the Attorney General of Virginia, and filed a petition 

praying that the Court set aside the judgment rendered herein on August 2, 2005, and grant a rehearing 

en banc thereof. 

 On consideration whereof, the petition for rehearing en banc is granted, the mandate entered 

herein on August 2, 2005 is stayed pending the decision of the Court en banc, and the appeal is 

reinstated on the docket of this Court. 

 The parties shall file briefs in compliance with Rule 5A:35. The appellee shall attach as an 

addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the 

Court in this matter. It is further ordered that the appellee shall file with the clerk of this Court twelve 

additional copies of the appendix previously filed in this case. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 Deputy Clerk 
COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Haley 

Argued at Salem, Virginia 

JAMES GREGORY LOGAN 

 OPINION BY 

v. Record No. 0852-04-3 JUDGE JAMES W. BENTON, JR. 

 AUGUST 2, 2005 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE 

Joseph W. Milam, Jr., Judge 

 S. Jane Chittom, Appellate Defender (Virginia Indigent Defense 

Commission, on briefs), for appellant. 

 Margaret W. Reed, Assistant Attorney General (Jerry W. Kilgore, 

Attorney General, on brief), for appellee. 

 A police officer entered the rooming house where James Gregory Logan resided, saw Logan 

in possession of cocaine on the second floor, and arrested Logan. At a hearing on a motion to 

suppress the cocaine, the trial judge ruled that the officer’s warrantless entry into the rooming house 

did not violate Logan’s rights under the Fourth Amendment because Logan had no “reasonable 

expectation of privacy in the area in which the officer observed the [drug] transaction.” Logan 

contends on appeal that the trial judge erred in ruling that he had no reasonable expectation of 

privacy in the hallway of the rooming house where he resided. We agree with Logan and reverse 

his conviction. 

I. 

 At the hearing on the motion to suppress, the Commonwealth’s witness testified that James 

Logan resided in the rooming house on Jefferson Street in the City of Danville. It is a three story 

converted residence where approximately fifteen other people reside. The evidence proved the front 
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door to the rooming house opens to a central hallway, which has rooms to each side and stairs 

leading to the upper two floors. The witness, Marilyn Adams, who is a resident of the rooming 

house, testified that a sign is posted on the front door that reads to the effect of “ring the door” or 

“knock to come in.” Two other signs with the words “No trespassing” are on the front door and on 

a pole just before the stairs. Logan had lived there for two or three weeks prior to his arrest, and his 

bedroom was in the third floor attic. 

 One afternoon, Adams saw Logan walking on Jefferson Street toward the rooming house. 

Logan stopped and told her that he was looking for Joyce Searles because he had given her his 

bicycle and ten dollars to get him a “dime rock.” Logan then walked away, searching for Searles. 

Adams testified that Searles later arrived on the bicycle and that she told Searles Logan was looking 

for her. As Adams stood inside the doorway to the rooming house, Logan arrived. He and Searles 

then entered the hallway and conversed. Adams saw a police vehicle stop in front of the house, and 

she said to Logan and Searles, “here come the police.” Logan and Searles continued their 

conversation in the hallway and then went upstairs. 

 Adams testified that the police officer entered the rooming house without knocking or 

ringing the bell, said “good evening” to her, and went up the stairs. She said the officer later 

returned to the front door and asked if she knew “a James . . . [or] some other name he called.” She 

testified that she told the officer Logan was not that person. She recalled that the name the officer 

inquired about was James Chappell and said the officer did not make any inquiry about Chappell 

when he first entered the house. 

 Officer Pace testified that he saw Logan near Jefferson Street and thought Logan was James 

Chappell. He testified, however, that he did not know either Chappell or Logan. Officer Pace had 

never seen Chappell, but he had a physical description of Chappell and had information that 
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Chappell was “supposed to be hanging around” the neighborhood. He called the dispatcher to 

determine whether the warrant for Chappell was still outstanding and learned that it was. 

 Officer Pace testified he “was going to get out of his cruiser and approach [Logan] and find 

out if that was, in fact, [Chappell].” Before he could do so, Logan and Searles entered the rooming 

house. Less than five minutes after Logan and Searles went upstairs, Officer Pace entered the 

rooming house and said “good evening” to Adams, who was standing in the hallway inside the front 

doorway. Contradicting Adams, Officer Pace testified that when he first entered the house he asked 

Adams “who it was and she said it was James without giving a last name.” 

 Officer Pace testified that he entered the building without knocking or ringing the doorbell. 

He did not see Logan in the hallway and went upstairs. Officer Pace also testified that he had been 

inside the rooming house before this date. He testified he saw a sign on a lamppost that read 

“rooms,” but did not recall seeing any other signs. 

 While walking upstairs, Officer Pace heard a woman say “give me my piece.” He then saw 

Logan and Searles standing at the top of the steps on the second floor. Logan had “a large . . . off 

white rock in his . . . right hand,” which he dropped into Searles’ left hand. When Logan and 

Searles saw Officer Pace, the “rock” fell to the floor. Officer Pace retrieved it and another smaller 

“rock” from the floor and arrested both Logan and Searles. 

 The trial judge found that the transaction between Logan and Searles occurred “next to a 

landing on a stairway, outside the individual rooms” in the rooming house. He ruled that “Logan, a 

resident of one of the rooms in this structure, did not have a reasonable expectation of privacy in the 

area in which the officer observed the transaction.” The trial judge, therefore, denied Logan’s 

motion to suppress the evidence. At the conclusion of additional testimony from Officer Pace, the 

trial judge convicted Logan of possession of cocaine. 
 - 4 - 

II. 

 The sole issue on appeal is whether Logan “had a reasonable expectation of privacy in 

the stairs and hallway of the rooming house where he lived.” In our review, we are bound by the 

trial judge’s findings of historical fact unless plainly wrong or without evidence to support them. 

However, whether a person has an expectation of privacy within the meaning of the Fourth 

Amendment is a question we consider de novo on appeal. Minnesota v. Olsen, 495 U.S. 91 

(1990). See also United States v. Ramapuram, 632 F.2d 1149, 1155 (4th Cir. 1980); Sharpe v. 

Commonwealth, 44 Va. App. 448, 454, 605 S.E.2d 346, 349 (2004). 

 The Fourth Amendment protects against unreasonable searches and seizures: “The right 

of the people to be secure in their persons, houses, papers, and effects, against unreasonable 

searches and seizures, shall not be violated.” U.S. Const. amend. IV. “It is axiomatic that the 

‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment 

is directed.’” Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) (citation omitted). Thus, a 

warrantless entry into a person’s residence is per se unreasonable unless the government can 

demonstrate an exigency. Id. It follows, therefore, as “a ‘basic principle of Fourth Amendment 

law’ that searches and seizures inside a home without a warrant are presumptively 

unreasonable.” Payton v. New York, 445 U.S. 573, 587 (1980). “‘At the very core of the Fourth 

Amendment stands the right of a man to retreat into his own home and there be free from 

unreasonable governmental intrusion.’” Kyllo v. United States, 533 U.S. 27, 31 (2001) (citations 

omitted). This is so because “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 590. 

As Justice Harlan’s oft-quoted concurrence described it, a Fourth 

Amendment search occurs when the government violates a 

subjective expectation of privacy that society recognizes as 

reasonable. See Katz v. United States, 389 U.S. 347, 361 (1967). 
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[The Court has] subsequently applied this principle to hold that a 

Fourth Amendment search does not occur -- even when the 

explicitly protected location of a house is concerned -- unless “the 

individual manifested a subjective expectation of privacy in the 

object of the challenged search,” and “society [is] willing to 

recognize that expectation as reasonable.” [California v. Ciraolo, 

476 U.S. 207, 211 (1986)].” 

Kyllo, 533 U.S. at 33. 

 “The proponent of a motion to suppress has the burden of establishing that his own 

Fourth Amendment rights were violated by the challenged search or seizure.” Rakas v. Illinois, 

439 U.S. 128, 131 n.1 (1978). The Supreme Court long ago implicitly noted, however, that 

society would recognize a rooming house resident’s expectation of privacy in his room and in the 

hallways of his rooming house as an area deserving the highest Fourth Amendment protection. 

See McDonald v. United States, 335 U.S. 451, 456 (1948). In McDonald, the Supreme Court 

reversed a denial of a suppression motion where officers, without a warrant, climbed through the 

landlady’s window in a rooming house and went to a hallway where they saw the defendant in 

his room engaged in an unlawful activity. 335 U.S. at 452-53. As Justice Jackson emphasized in 

his concurring opinion, “each tenant of a building, while he has no right to exclude from the 

common hallways those who enter lawfully, does have a personal and constitutionally protected 

interest in the integrity and security of the entire building against unlawful breaking and entry.” 

Id. at 458 (Jackson, J., concurring). 

For residents of a rooming house, the dwelling is their home. “The mere fact that certain 

rooms traditionally associated with a home are shared by rooming house residents does not 

render the structure any less a home to those residents.” State v. Titus, 707 So. 2d 706, 708 (Fla. 

1998). Thus, while a rooming house is open to its residents, unless evidence proves otherwise, a 

rooming house is not by its essential function open to the general public. Id. at 709. It follows, 

therefore, “as a matter of law that (1) just like private homeowners, rooming house residents 
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have an actual expectation of privacy in the common areas of the rooming house and that (2) 

given the sanctity of the home society is prepared to recognize that expectation as reasonable.” 

Id. at 708. The concept of home is so sacrosanct that “[w]ith few exceptions, the question 

whether a warrantless search of a home is reasonable and hence constitutional must be answered 

no.” Kyllo, 533 U.S. at 31. Applying these principles, we hold that as a resident of the rooming 

house, Logan undoubtedly had a legitimate privacy interest in the premises. See also Bryant v. 

United States, 599 A.2d 1107, 1109-10 (D.C. App. 1991) (holding that residents of a rooming 

house have privacy interests in their rooms and the common areas of the rooming house); United 

States v. Booth, 455 A.2d 1351, 1353-54 (D.C. App. 1983) (rejecting the government’s 

contention that the tenant of a rooming house lacked a legitimate expectation of privacy in the 

front hallway of the rooming house that was open to use by all of the tenants). 

Without question, there are circumstances in which a rooming house could be deemed 

open to the general public. See City of Evanston v. Hopkins, 71 N.E.2d 209 (Ill. App. Ct. 1947) 

(where a “Public Telephone” sign was posted at the entrance and the entrance door was open). 

Logan argues that no similar circumstance existed here and further argues in the alternative that 

the hallway of the rooming house is similar to the curtilage surrounding the home, where the 

expectation of privacy is diminished though still exists. We need not reach this alternative issue 

because the evidence in this record is devoid of any suggestion that the rooming house was open 

to the general public or to persons other than its residents and invited guests. 

Structurally, 717 Jefferson Street was a former residence converted to a rooming house, 

which supports the view that these hallways were not open to the public. The hallways were 

interior and were shared traditional living areas within the residence. Thus, while the tenants and 

guests had a right to enter the common areas and hallway, the public did not. The two “No 

Trespassing” signs posted at the entrance declared as much, as did the sign that effectively 
 - 7 - 

advised visitors to ring the bell or knock to gain entry. “Merely because the residents lack total 

privacy within the dwelling to each have a private kitchen, and hallways within the dwelling are 

necessary to traverse between their bedroom and their kitchen, does not defeat the essential 

nature of the interior hallways or kitchen as part of their private dwelling.” Titus, 707 So. 2d at 

708. 

Here, the evidence proved the front entrance to the rooming house was a door and an 

outer storm door. The Commonwealth’s witness, a resident of the rooming house, was standing 

in the hallway inside the front door when the officer entered. She testified that the door to the 

rooming house contains a “No Trespassing” sign and that on the pole before the ascending steps 

is a similar sign. She also testified that a sign posted on the door advises to “ring” or “knock” to 

enter. The officer merely testified that he did not observe those signs but did see a sign 

advertising “Rooms.” These facts do not permit a conclusion that the rooming house was open 

to the general public. Indeed, at oral argument the government concedes the rooming house was 

not a place open to the general public. We hold, therefore, that the hallway of Logan’s rooming 

house was not open to the public and is to be accorded the same Fourth Amendment protection 

extended to the interiors of private homes. 

The Commonwealth cites United States v. Anderson, 533 F.2d 1210 (D.C. Cir. 1976), as 

authority that a dweller of a rooming house has no reasonable expectation of privacy in the 

hallways. In Anderson, the appellant contended no exigent circumstances justified the 

warrantless entry to his room. The court did not reach that issue but summarily held as follows: 

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 
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constitutionally protected privacy interest began at the door to 

room eight rather than at the door to the entire rooming house. 

Id. at 1214. 

We believe this reasoning is unpersuasive. It states, in conclusory fashion, that police 

“did not enter appellant’s private dwelling,” then fails to recognize that delivery persons and 

others with legitimate reason for being on the premises must have permission before entering and 

that their occasional presence does not defeat a resident’s expectation of privacy. 

The Commonwealth also argues by analogy that hallways in a rooming house are similar 

to apartment hallways, where some courts have held there is no reasonable expectation of 

privacy. See e.g. United States v. Nohara, 3 F.3d 1239, 1241 (7th Cir. 1993) (no reasonable 

expectation of privacy in common hallways of apartment building); United States v. Holland, 

755 F.2d 253, 255-56 (2d Cir. 1985) (same); United States v. Concepcion, 942 F.2d 1170, 1172 

(7th Cir. 1991) (same); United States v. Eisler, 567 F.2d 814, 816 (8th Cir. 1977) (same); but see

United States v. Carriger, 541 F.2d 545, 551 (6th Cir. 1976) (holding residents have reasonable 

expectations of privacy in apartment hallways). We find the reasoning in the Commonwealth’s 

arguments unpersuasive because a significant difference exists between hallways in an apartment 

building and those in rooming houses. 

[C]ommon hallways in unlocked apartment buildings, . . . 

generally serve only to connect separate, self-contained living units 

typically complete with all of the traditional living areas (i.e., 

bathrooms, dining rooms, living rooms, kitchens, etc.). Interior 

hallways in rooming houses are protected only by virtue of linking 

such traditional rooms within the house--they provide rooming 

house residents with the only means of access to these rooms, and 

are an inseparable feature of their “home.” In other words, it is not 

any inherent nature of a hallway that controls, but rather what the 

hallway links (i.e., individual self-contained living units versus 

shared traditional living areas). 

Titus, 707 So. 2d at 711. 
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It is not likely this issue would be seriously debated if the circumstances involved several 

families or individuals renting a vacation home and the issue was whether police officers could 

enter the shared kitchen, hallways, or bathrooms without invading the dweller’s privacy. 

 The privacy interests here sought to be vindicated might well be 

analogized to the common practice among middle income persons 

of renting a “group home” for the summer or winter, in which each 

person or couple occupies a bedroom, but shares kitchen and 

bathroom facilities. Although privacy in common areas is thereby 

relinquished to some extent with respect to the other residents, it 

could not be seriously contended that the police are thereby 

permitted to enter such premises without announcing their 

authority, and to roam freely therein with guns drawn, without a 

warrant or exigent circumstances, neither of which was established 

here. 

People v. Garriga, 596 N.Y.S.2d 25, 29 (N.Y. App. 1993). 

Logan’s residence was not a vacation home, but the regular dwelling for fifteen people. 

The rooming house “was not a hotel, restaurant, or public place where the public was invited or 

had the right to come and go at will.” Brown v. United States, 83 F.2d 383, 385 (3d Cir. 1936). 

The rooming house was Logan’s home “and so far as the unlawful entry and search affected him, 

it violated his constitutional rights.” Id. at 386. We hold that the common areas of the rooming 

house were part of Logan’s “home” within the meaning of the Fourth Amendment. 

III. 

 Citing Hill v. California, 401 U.S. 797, 804 (1971), and Shears v. Commonwealth, 23 

Va. App. 394, 399, 477 S.E.2d 309, 311 (1996), the Commonwealth contends that even if Logan 

had a reasonable expectation of privacy within those common areas, the officer was justified in 

entering the dwelling, because he reasonably but mistakenly relied on the authority of an existing 

warrant to arrest James Chappell, whom he suspected Logan to be. Logan contends the 

Commonwealth failed to prove the officer acted reasonably or in good faith. 
 - 10 - 

Logan averred in his brief in support of his motion to suppress that 717 Jefferson Street, 

the rooming house, was his home and that the officer made a warrantless entry into the home 

without a search warrant and without an arrest warrant for him. Indeed, the Commonwealth’s 

own evidence proved it was Logan’s residence and the officer did not have a warrant to arrest 

Logan. Fourth Amendment principles dictate that “an entry to arrest and an entry to search for 

and to seize property implicate the same interest in preserving the privacy and the sanctity of the 

home, and justify the same level of constitutional protection.” Payton, 445 U.S. at 588. Thus, 

warrantless entries and searches “‘are subject only to a few specifically established and 

well-delineated exceptions . . . [, which] are jealously and carefully drawn and [require a] 

showing by those who seek exemption that the exigencies of the situation made that course 

imperative.’” Florida v. White, 526 U.S. 559, 568 (1999) (quoting Coolidge v. New Hampshire, 

403 U.S. 443, 454-55 (1971)). 

 The police officer had neither an arrest warrant for Logan nor a search warrant for the 

residence. He testified that when he saw Logan on the street he “thought [Logan] was an 

individual by the name of James Chappell.” The officer testified, however, he had not 

previously met either Logan or Chappell. The only objective facts that he relates to support his 

belief are that Chappell “was approximately five foot, seven inches tall,” weighed about two 

hundred pounds, and was a black male. Yet, he learned after the arrest that Chappell “had a little 

more weight on him than Logan.” The officer also had information that Chappell “was supposed 

to be hanging around” the neighborhood. This general information would not lead a reasonable 

person to conclude that Logan was Chappell. Indeed, by Officer Pace’s own testimony, he had 

intended to ask Logan his identity when he saw him on the street. 

Adams testified the officer asked her if she knew James Chappell. She said she told him 

that Logan was not that person. The officer testified he “asked [Adams] who it was and she said 
 - 11 - 

it was James.” He did not testify that he used a surname when he made his inquiry or inquired 

further when Adams merely said the man was James. In either event, these circumstances 

demonstrate that the officer’s conclusion that Logan was Chappell was merely a hunch or 

suspicion. 

Assuming Officer Pace subjectively believed Logan was Chappell, the evidence did not 

prove his belief was objectively reasonable. The Supreme Court and this Court have held that a 

mistaken arrest was reasonable when the arrest was based on specific, detailed information as to 

the time and place where the arrestee would be found. Hill, 401 U.S. at 803; Shears, 23 Va. App. 

at 399-400, 477 S.E.2d at 311. In Hill, one of two arrested drug dealers implicated Hill in a 

robbery and told police officers he was “currently” sharing an apartment with Hill at 9311 

Sepulveda Boulevard in Los Angeles. 401 U.S. at 798. This information was timely and 

specifically named the place where police could locate Hill. The police officer then used official 

records to verify Hill’s “prior association with [the arrested drug dealer], his age and physical 

description, his address, and the make of his car. Id. at 799. All of this information 

“corresponded with the general description by the robbery victims and the statements made by 

[the arrested informants].” Id. When police went to Hill’s apartment, Hill’s name was on the 

mailbox and a man who closely matched Hill’s description answered the door. Id. These facts 

connected the two men both by description and location. Thus, the facts supported the 

conclusion “that the arresting officers had a reasonable, good faith belief that the arrestee Miller 

was in fact Hill.” Id. at 802 (noting that “‘[w]hen the police have probable cause to arrest one 

party, and when they reasonably mistake a second party for the first party, then the arrest of the 

second party is a valid arrest’”). 

The details of description and place that made the mistaken arrest reasonable in Shears

were similar. 
 - 12 - 

It is uncontroverted that the detectives were vested with the 

authority of the warrant for Boyce when defendant was arrested at 

the informant’s trailer. The informer was instructed to telephone 

Boyce, an individual known to police as a drug dealer reputed for 

quick response to solicitations. Within minutes after the informer 

advised the detectives that he had contacted Boyce as directed, 

defendant arrived and entered the trailer. The detectives had 

previously seen neither defendant nor Boyce, but defendant’s 

appearance was consistent with Boyce’s “general description,” and 

his comments were suggestive of an impending narcotics 

transaction. Under such circumstances, the police clearly acted 

both in good faith and reasonably in arresting defendant, as Boyce, 

albeit in error. 

Shears, 23 Va. App. at 399-400, 477 S.E.2d at 311. 

By Officer Pace’s own admission, he had never seen either Logan or Chappell and had 

only a general description of Chappell. Additionally, no information linked Chappell to the 

residence. When the officer asked the woman at the door who the man was that entered, he 

received no indication that it was Chappell. Even if the woman’s response could be deemed 

ambiguous, the officer made no further inquiry. Thus, the officer’s testimony raised doubt 

whether he even believed that he was following Chappell. The details and information that made 

the mistake reasonable in Hill and Shears were missing here. Officer Pace was acting on a 

two-month-old warrant and information that Chappell was “hanging out” in the neighborhood. 

The details as to a specific place were lacking, as was the accuracy of the description. The 

officer did not testify that Logan is about the same height as Chappell. He testified that Chappell 

weighed 200 pounds and was heavier than Logan. We cannot say under these facts that Officer 

Pace’s mistaking Logan for Chappell was objectively reasonable. 

For the aforementioned reasons, we reverse the trial judge’s denial of Logan’s motion to 

suppress. 

 Reversed.
 - 13 - 

Haley, J., dissenting. 

I. 

 I respectfully dissent. 

 It is fundamental that an individual may only assert a Fourth Amendment violation if he 

has “a reasonable expectation of privacy” in the place searched or location where he is arrested. 

Rakas v. Illinois, 439 U.S. 128, 130 (1978); Katz v. United States, 389 U.S. 347, 351 (1967); 

DeLong v. Commonwealth, 234 Va. 357, 363, 362 S.E.2d 669, 672 (1987), cert. denied, 485 

U.S. 929 (1988); Hardy v. Commonwealth, 17 Va. App. 677, 680, 440 S.E.2d 434, 436 (1994).5

 It is likewise established that in support of a motion to suppress, the defendant has the 

burden of proving he had a reasonable expectation of privacy in the place searched or the 

location where he is arrested. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); Barnes v. 

Commonwealth, 234 Va. 130, 135, 360 S.E.2d 196, 200 (1987); Sharpe v. Commonwealth, 44 

Va. App. 448, 455, 605 S.E.2d 346, 349 (2004). “[I]n order to claim the protection of the Fourth 

Amendment, a defendant must demonstrate that he personally has an expectation of privacy in

the place searched . . . .” Minnesota v. Carter, 525 U.S. 83, 88 (1998) (emphasis added). 

 Succinctly stated, the establishment of a reasonable expectation of privacy is a condition 

precedent to asserting the protection of the Fourth Amendment, and the defendant has the burden 

of production, the burden of presenting evidence supporting that expectation. 

II. 

 With respect to the motion to suppress in the instant case, only two witnesses testified, 

Marilyn Elizabeth Adams and Officer Jerry Pace. Ms. Adams was a resident in the rooming 

house, in room one on the first floor. She testified the rooming house had three floors, with 

 5

 In Fourth Amendment jurisprudence, for analytical purposes, the establishment of “a 

reasonable expectation of privacy” has replaced the classic concept of asserting “standing.” See

Minnesota v. Carter, 525 U.S. 83, 85 (1998); Rakas, 439 U.S. at 139-40. 
 - 14 - 

“about” fifteen tenants, was owned by a James Gunn, and appellant lived “all way upstairs in the 

attic.”6 Upon being asked how long appellant had lived in the rooming house, she replied: “I’m 

not sure . . . about two or three weeks.” She testified that there was a “No trespassing” sign and 

a sign which said either “knock” or “ring” for entry, both of which were posted on the glass in 

the front door. At the time appellant and a Joyce Searles entered the rooming house, and when 

Officer Pace followed less than “five minutes” later, Ms. Adams testified she was “standing in 

the [open front] doorway.” She knew that Joyce Searles was not a resident of the rooming house 

and had entered with appellant to consummate a drug transaction. She testified that Officer Pace 

passed by her in the open doorway, saying only “good evening,” and that she said nothing to 

him. 

 Officer Pace testified he thought appellant was one Chappell, for whom there were 

outstanding arrest warrants. He did not see either the “No trespassing” or “ring” (or knock) to 

enter signs, presumably because they were posted on the glass of the front door, which he 

testified, in accordance with Ms. Adams, was “standing open.” He did testify, however, that 

there was “a sign hanging on like a lamp post or something out front that says ‘Rooms.’” He 

testified he knew the building was a rooming house and had been inside before. After entering 

the front door, there was a central hallway, with rooms on each side, which led to a stairway. 

Officer Pace said he walked down the hallway, rounded a bend in the stairway leading to the 

second floor, and saw appellant and Searles standing above him on the second floor stairway 

 6

 Presumably, appellant did have a reasonable expectation of privacy “in the attic,” if that 

in fact was his personal residence. “[T]he occupant of a room in a boarding house . . . is entitled 

to constitutional protection against unreasonable searches and seizures.” Stoner v. California, 

376 U.S. 483, 490 (1964). This Court had likewise affirmed such an expectation with respect to 

motel rooms. See McCary v. Commonwealth, 36 Va. App. 27, 36, 548 S.E.2d 239, 243-44 

(2001); Jones v. Commonwealth, 16 Va. App. 725, 727, 432 S.E.2d 517, 518 (1993); Servis v. 

Commonwealth, 6 Va. App. 507, 514, 371 S.E.2d 156, 159 (1988). 
 - 15 - 

landing. It was at this location that Officer Pace saw the appellant holding, and then dropping, 

the “rock” of cocaine. 

 Thus, the issue in the motion to suppress was whether appellant had met his burden of 

production, of producing evidence to show he had “a reasonable expectation of privacy” on the 

second floor stairway landing. I submit he did not. 

III. 

The majority cites State v. Titus, 707 So. 2d 706 (Fla. 1998), for the proposition that a 

resident can have a reasonable expectation of privacy in a rooming house. That case was an 

appeal from a decision of the Court of Appeals of Florida, Fourth District, reported as Titus v. 

State, 696 So. 2d 1257 (1997). It is clear from that decision that the defendant produced 

evidence in his motion to suppress supporting a conclusion that he in fact had a reasonable 

expectation of privacy in a rooming house common kitchen. “The residents testified that the 

house is, effectually, private for the tenants and their guests, and that the kitchen is available for 

use only by the tenants. In fact, some of the tenants store personal belongings in the kitchen.” 

Id. at 1258. 

The majority also cites Bryant v. United States, 599 A.2d 1107 (D.C. App. 1991). Again, 

however, the court noted: 

The evidence shows that 4621 Georgia Avenue was not obviously 

a rooming house open to the public. . . . [T]he 4600 block of 

Georgia Avenue had private homes, not apartment buildings . . . . 

At the suppression hearing Sergeant McGuire explained that “once 

inside the house, it turned out to be a rooming house” . . . [and 

there was] . . . proof of appellant’s “authority to exclude others 

from the area entered and searched . . . .” Appellant testified that 

the tenants shared the use of the kitchen, and nothing in the record 

suggests that the residents had relinquished their authority to 

exclude uninvited persons from the kitchen and adjoining areas. 

599 A.2d at 1109-10. 
 - 16 - 

Likewise, in citing United States v. Booth, 455 A.2d 1351 (D.C. App. 1983), the majority 

does not address the evidence adduced by the defendant. 

[T]he rooming house . . . and thus its front hallway—was not open 

to the general public. Indeed, we note that Officer Terrell, upon 

his arrival, did not even perceive that 1620 Swann Street, N.W. 

was a rooming house. Thus, if a stranger appeared at the front 

door, appellees, as residents, had authority, and were in a position, 

to deny entry. 

455 A.2d at 1354. 

IV. 

Momentarily setting aside the question of the burden of production of evidence 

supportive of a reasonable expectation of privacy in the hallways or stairwells of an apartment or 

rooming house, it should be noted that a number of courts have held that as a matter of law, there 

can be no such expectation in such areas. 

In United States v. Anderson, 533 F.2d 1210, 1214 (D.C. Cir. 1976), the Federal Court of 

Appeals, as quoted by the majority, 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.” 

The majority of federal courts have reached that conclusion. See United States v. 

Nohara, 3 F.3d 1239, 1241 (9th Cir. 1993) (“we conclude that any expectation Nohara might 

have had [in an apartment hallway] is not one that society recognizes as reasonable”); United 

States v. Barros-Moriera, 872 F.2d 12, 14 (2d Cir. 1989), cert. denied, 493 U.S. 953 (1989) 

(“Here the police entry was into a common [apartment] hallway, an area where there is no 
 - 17 - 

legitimate expectation of privacy . . . even though the area was guarded by a locked door.”); 

United States v. Concepcion, 942 F.2d 1170, 1172 (7th Cir. 1991) (apartment common areas); 

United States v. Eisler, 567 F.2d 814, 816 (8th Cir. 1977) (apartment hallway); United States v. 

Cruz Pagan, 537 F.2d 554, 558 (1st Cir. 1976) (apartment garage). 

V. 

In McCoy v. Commonwealth, 2 Va. App. 309, 312, 343 S.E.2d 383, 385 (1986), this 

Court held that the defendant visiting in an apartment did not therein have such a reasonable 

expectation of privacy, noting, inter alia, that “the evidence . . . failed to show . . . [that appellant 

possessed] . . . a right to exclude others from the premises . . . .” (Emphasis added). The Court 

recognized that it was the defendant’s burden to produce evidence supportive of his claim of a 

reasonable expectation of privacy. 

In the instant case, as summarized above, the uncontradicted evidence shows that (1) the 

door to the rooming house was open, thereby presumably hiding a view of any signs posted upon 

it, and concomitantly permitting entry by anyone; (2) a sign posted outside the front of the 

rooming house read “Rooms”; any reasonable inference from that sign must include the 

proposition that it was an invitation to enter and inquire as to the availability of a room to let, and 

an invitation open to the public; (3) Ms. Adams claimed no ownership or managerial or 

residential authority to exclude, or not exclude, anyone from the rooming house, and said 

nothing to Officer Pace as he entered; and (4) Officer Pace knew the building was a rooming 

house when he entered, having previously been to the location. That being said, there is no 

evidence whatsoever as to any rules or agreements or practices, from any source, such as the 

owner or manager or residents, with respect to whom, or under what conditions, one could enter, 

or not enter, the rooming house and its common areas. Finally, the appellant offered no evidence 
 - 18 - 

“that he personally [had] an expectation of privacy” in the second story stairwell landing. 

Carter, 525 U.S. at 88 (emphasis added). 

VI. 

In Sharpe, 44 Va. App. at 454, 605 S.E.2d at 349, this Court stated: 

On appeal of a ruling on a motion to suppress, we view the 

evidence in the light most favorable to the prevailing party, here 

the Commonwealth, granting to the evidence all reasonable 

inferences deducible therefrom. Commonwealth v. Grimstead, 12 

Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). “[W]e are bound 

by the trial court’s findings of historical fact unless ‘plainly wrong’ 

or without evidence to support them,” McGee v. Commonwealth, 

25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc), but 

we review de novo the trial court’s application of defined legal 

standards such as whether a defendant had a reasonable 

expectation of privacy sufficient to permit him to raise a Fourth 

Amendment challenge to a search, United States v. Gordon, 168 

F.3d 1222, 1225 (10th Cir. 1999). 

Applying that standard, I would hold the appellant failed to produce evidence sufficient 

to prove that he had a reasonable expectation of privacy in the second floor stairwell landing of 

the rooming house. I would affirm the ruling of the trial court denying the motion to suppress 

and, accordingly, the conviction of the appellant.