COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Elder, Frank, Humphreys, Clements, Felton, McClanahan, Haley and Re tired Judge Bumgardner ∗ Argued at Richmond, Virginia

ELISA KENTY ROBINSON

v. Record No. 2474-03-2

COMMONWEALTH OF VIRGINIA OPINION BY JUDGE ROBERT J. HUMPHREYS GEORGE FISHER ROBI NSON JANUARY 31, 2006

v. Record No. 2539-03-2

COMMONWEALTH OF VIRGINIA

UPON REHEARING EN BANC

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY Paul M. Peatross, Jr., Judge Francis McQ. Lawrence (Rhond a Quagliana; St. John, Bowling & Lawrence, LLP, on briefs), for appellant Elisa Kenty Robinson. Robert E. Byrne, Jr. (Jonathan T. Wren; Martin & Raynor, P.C., on briefs), for appellant George Fisher Robinson. Donald E. Jeffrey III, Assistan t Attorney General (Judith Williams Jagdmann, Attorney General; Karri B. Atwood, Assistant Attorney General, on briefs), for appellee.

Appellants George F. Robinson and Elisa K. Robinson (collectively, “the Robinsons”) appeal their multiple convictions for contributin g to the delinquency of a minor, a violation of Code § 18.2-371. Elisa Robinson contends that th e trial court erred in denying her motion to suppress, reasoning that, because the investigating police officer was located in the curtilage of

∗ Judge Bumgardner participated in the heari ng and decision of this case prior to the effective date of his retirement on December 31, 2005.- 2 - their home when he witnessed the illicit activity , the resulting search violated her Fourth Amendment right to be free from unreasonable se arches and seizures. George Robinson, in contrast, argues that, although the police officer did not violate the Fourth Amendment when he initially entered the premises, the officer lackedthe exigent circumstances necessary to permit his further intrusion onto the property. For the following reasons, we disagree with both appellants’ arguments and, theref ore, affirm their convictions.

I. BACKGROUND

In accord with our usual standard of review , on the appeal of a denial of a motion to suppress, we view the evidence and all reasonable inferences fl owing from the evidence in a light most favorable to th e Commonwealth, the party pr evailing below. Garcia v.

Commonwealth , 40 Va. App. 184, 189, 578 S.E.2d 97, 99 (2003); Sabo v. Commonwealth , 38 Va. App. 63, 69, 561 S.E.2d 761, 764 (2002). So viewe d, the evidence in this case establishes the following. On August 16, 2002, the Albemarle County Police Department received three separate telephone calls reporting an allege d underage drinking party at the Robinsons’ home. Corporal Scott Cox was dispatched to investigate these al legations, and he arrived at the Robinsons’ home at approximately 11:00 p.m. Fr om the state road in front of the house, Officer Cox saw between ten and twenty cars parked on the state road, a nd he also saw two or three cars parked on the left-hand side of the driveway. From that pos ition, Officer Cox could also see the house, the front porch, the front door, and th e front yard, although he could notsee the backyard or the end of the driveway. The floodlights above the fr ont door were turned on, and the lights along the sidewalk leading to the frontdoor were also illuminated. Officer Cox, who was driving a marked polic e car with its headlights on, “got on the

radio” and told the other officers in the area to “s tart heading this way” be cause “[i]t appears that- 3 - there’s a party.” Officer Cox then turned into the driveway and started to drive towards the house. Almost immediately after pulling into th e driveway, Officer Cox saw several additional parked vehicles near the right side of the drivew ay, as well as “several parked vehicles near the side of the house.” Officer Cox continued up th e driveway in his police car. From his position inside the police car, he began to see some “activity” in the bac kyard. Before reaching the point where the walkway to the front door intersects with the Robinsons’ driveway, Officer Cox saw two individuals holding clear beer bottles. The individuals, bo th of whom appeared to be underage, were standing by a pine tree about se ven or eight yards away from Officer Cox’s police car. The two juveniles “l ooked at [Officer Cox], looked at the house, yelled ‘cops,’ dropped the beer bottles, and ran down a fence line toward the woods.” Officer Cox then pulled his police vehicle behind a car parked by the garage , and he looked to his left. From that vantage point, “[h]e saw juveniles running toward the w oods.” Also, “[h]e could see a patio table

covered with beer bottles and noticed beer bottles strewn about the backyard.” Officer Cox got out of his car, “yelled for people to stop running, and radioed other officers who were waiting off the property that kids were running east into the woods.” After radioing the other officers, Officer C ox proceeded into the backyard “to look for the juvenile host.” According to Officer Cox, he went into the b ackyard because he “[w]anted to find out what was going on, [and] find out who the people were that were running away,” because he “was worried for their safety.” After speaking with one of the party attendees, Officer Cox then “walk[ed] up to the back door of [the] house” and knocked on a clear glass sliding door. From outside the residence, he could see “two adults sitting at the kitchen table.” The Robinsons were arrested, and each was ch arged with nineteen counts of contributing to the delinquency of a minor. Both parties f iled a motion to suppress, contending that Officer Cox was unlawfully present on their propert y when he viewed the illicit activity.- 4 - During the suppression hearing, Officer Cox tes tified that his police car was next to a bush planted by the front sidewalk when he “clearly” saw “two male juveniles standing on the other side of the tree holding beer bottles.” To clarify the position in the driveway from which the officer observed the juveniles, the trial court asked Officer Cox, “So you were at the bush when you saw the two individuals?” Of ficer Cox responded, “That’s right.” By letter opinion dated August 4, 2003, the trial court held that Officer Cox “planned to enter the property to investigat e the allegations of underage cons umption of alcohol.” The trial court also observed that, “[a]s Cox went down the driveway, he could not s ee the backyard or the garage,” but that “[h]e could s ee the house, the front yard, and the front porch.” Additionally,

the trial court found that “[t]here were no signs posted”—su ch as a “no trespassing” sign—at the entrance to the driveway. Based on this evidence, the trial court found th at the Robinsons’ driveway was not part of the curtilage of the house and, therefore, c oncluded that “Cox’s presence there [did] not implicate the Fourth Amendment.” The court ad ditionally held that Officer Cox’s presence in the Robinsons’ driveway was justified by the offi cer’s right to conduct a “knock and talk,” that is, to approach a home and knock on the front door to speak with an occupant. Under either of the preceding rationales, the trial court concl uded that “Cox was in a lawful place in the driveway” when he observed the two juvenile s drinking beer, and hi s observations were therefore admissible pursuant to the plain view exception to the warrant requirement. Finally, the trial court concluded that Officer Cox’s entry into the backyard was ju stified because he had both probable cause to believe that a crime was being committed and exigent circumstances “given the likelihood of evidence being destroye d and juveniles running away.” Accordingly,

the trial court denied the Robi nsons’ motions to suppress.- 5 - The trial court convicted each appellant of ni ne counts of contributing to the delinquency of a minor. Both parties appealed their convictions to this Court.

II. PROCEDURAL HISTORY On appeal, a three-judge panel, with one judge dissenting, affirmed the Robinsons’

convictions. See Robinson v. Commonwealth , 45 Va. App. 592, 612 S.E.2d 751 (2005). The panel majority reasoned that, although the driveway was part of the curtilage of the home, Officer Cox’s presence did not viol ate any reasonable expectation of privacy, and, therefore, his conduct did not implicate the Fourth Amendment. See id. By orders dated June 21, 2005, this Court granted the Robinsons ’ petitions for rehearing en banc and stayed the mandates of the panel opinion. See Elisa Robinson v. Commonwealth , 46 Va. App. 24, 614 S.E.2d 667 (2005); George Robinson v. Commonwealth , 46 Va. App. 23, 614 S.E.2d 667 (2005). During the en banc oral arguments, the Commonwealth conceded that Officer Cox was located on the curtilage of the Robinsons’ hom e when he observed th e unlawful activity. Accordingly, this question—which was in di spute before the three-judge panel, see Robinson , 45 Va. App. at 604-07, 612 S.E.2d at 757-58—is no longe r at issue on appeal. However, the Commonwealth maintains that, although Officer Cox intruded upon the curtilage, he did not violate the Fourth Amendment because, for the reas ons stated in the majority panel opinion, the

Robinsons lacked a reasonable e xpectation of privacy in the ar ea from which he viewed the illegal activity. 1 Also during the en banc oral arguments, George Robins on conceded that he lacked a reasonable expectation of privacy in their driveway on the nightin question. He argues,

1 Upon rehearing en banc , the Commonwealth has apparently abandoned its argument that the Robinsons lacked a reasonable expectatio n of privacy in their driveway because portions of the driveway were viewable from the state road. Cf. Robinson , 45 Va. App. at 608-09, 612 S.E.2d at 759.- 6 - however, that the officer’s further intrusion onto the property was unc onstitutional, reasoning that the officer—once his suspicio ns of underage dri nking had been valida ted—should have left the property or otherwise secured the premises and then obtained a search warrant. This argument was not previously raised before the th ree-judge panel and, thus , was not addressed in the panel opinion. 2 Elisa Robinson, in contrast, continues to maintain that she possessed a reasonable expectation of privacy in the dr iveway and, thus, argues that Of ficer Cox violated the Fourth Amendment when he entered the property without a warrant. However, Elisa Robinson concedes that, if the officer was legitimately present on the premises when he witnessed the illegal activity, the officer’s further intrusion on to the property was justified because the officer possessed the requisite exigent circumstances. 3

III. ANALYSIS Although “‘[w]e are bound by the trial court’s find ings of historical fact unless ‘plainly wrong’ or without evidence to s upport them,’ . . . we review de novo the trial court’s application of legal standards . . . to the particular facts of the case.” McCracken v. Commonwealth , 39

2 George Robinson’s new argument—that the officer lacked the exigent circumstances necessary to permit his entry into the backyard —was not argued before the three-judge panel either on brief or during oral arguments. Indeed, it is questi onable whether Robinson properly assigned error to the trial court’s clear ruling that the officer’s entry was constitutional because he possessed both probable cause and exigent circ umstances. Specifically, the third assignment of error in Robinson’s “Questions Presented,” as enunciated in his petition for appeal, merely questions “Whether the ‘plain view’ doctrine authorized Sergeant Cox’s entry into the Robinsons’ backyard to seize evidence there.” No tably absent from this assignment of error is any mention of exigent circumstances or probabl e cause. However, because the assignment of error does question whether the officer’s “entry into the Robinsons’ backyard” was constitutionally permissible, we will assume fo r purposes of this opinion that Robinson’s third “Question Presented” is sufficient to enco mpass the trial court’s ruling that exigent circumstances justified the office r’s entry into the backyard.

3 Of the three parties, then, Elisa Robinson is the only litigant w ho maintains a position consistent with that taken be fore the three-judge panel.- 7 - Va. App. 254, 258, 572 S.E.2d 493, 495 (2002) ( en banc ) (quoting McGee v. Commonwealth , 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) ( en banc )) (citing Ornelas v. United States , 517 U.S. 690, 699 (1996)). Further, “[ i]n reviewing a trial court’s de nial of a motion to suppress, ‘the burden is upon [the appellant] to show that the ruling . . . constituted reversible error.’”

McGee , 25 Va. App. at 197, 487 S.E.2d at 261 (quoting Fore v. Commonwealth , 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)). For the reasons that follow, we hold that, co ntrary to Elisa Robinson’s position, Officer

Cox did not violate the Fourth Amendment when he drove up the driveway of the Robinsons’ home. We further hold that, contrary to Ge orge Robinson’s position, on ce the officer observed the teenagers fleeing from the backyard, his furt her intrusion onto the property was permissible pursuant to the exigent circumstances exception to the warrant requirement. Accordingly, we affirm both parties’ convictions. A. Elisa Robinson: Implied Consent Upon rehearing en banc , Elisa Robinson 4 maintains that Officer Cox violated the Fourth Amendment when he entered the driveway of the property without first obtaining a search warrant. Initially, we agree th at, “absent (1) exigent circumstances and probable cause or (2) consent, law enforcement agents cannot ente r the curtilage of a person’s home either to search or seize without previously obta ining a warrant.” Jefferson v. Commonwealth , 27 Va. App. 1, 16, 497 S.E.2d 474, 481 (1998). Although Officer Cox possessed neither probable cause nor exigent circumstances which would just ify a search when he initially entered the property, we hold that, on the night in questi on, Robinson impliedly consented to have members of the public—including police officers—enter th e premises in an attempt to contact the

4 For purposes of this subsection, Elisa R obinson will be referred to simply as “Robinson.”- 8 - residents of that property. Because Officer C ox had not exceeded the scope of this implied

consent when he viewed the illicit activity, we affirm her convictions.

1. It is generally recognized that, absent any a ffirmative attempts to discourage trespassers, owners or possessors of private property imp liedly consent to have members of the general public intrude upon certain, limited areas of their property. As we have noted, “People commonly have differe nt expectations, whether considered or not, for the access areas of their premises than they do for more secluded areas. Thus, we do not place things of a private nature on our front porches that we may very well entrust to the seclusion of a backyard, pa tio or deck. In the course of urban life, we have come to expect various members of the public to enter upon such a driveway, e.g., brush salesmen, newspaper boys, postmen, Girl Scout cookie se llers, distressed motorists, neighbors, friends. Any one of th em may be reasonably expected to report observations of crimin al activity to the police.” Shaver v. Commonwealth , 30 Va. App. 789, 796, 520 S.E.2d 393, 397 (1999) (quoting State v.

Corbett , 516 P.2d 487, 490 (Or. Ct. App. 1973)). This invitation, where it exists, extends only to those areas of the pr operty that would be used when approaching the residence in an ordina ry attempt to speak with the occupants. See id. Thus, areas of the curtilage th at 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. See, e.g. , State v. Clark , 859 P.2d 344, 349 (Idaho Ct. App. 1993) (“There is an implied invi tation for the public to use access routes to the house, such as parking areas, driveways, side walks, or pathways to the entry, and there can be no reasonable expectation of privacy as to observations which can be made from such areas.”). 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 ar eas of the curtilage associat ed with that “path.” See id.- 9 - 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. See Shaver , 30 Va. App. at 796, 520 S.E.2d at 397 (“‘If one has a reasonable expectation th at various members of society may enter the property in their personal or business pursuits, he should find it equally likely that the police will do so.’” (quoting Corbett , 516 P.2d at 490)); see also State v. Cada , 923 P.2d 469, 477 (Idaho Ct. App. 1996) (“[T]he direct access routes to the house, including parking areas, driveways and pathways to the entry, are areas to which the public is im pliedly invited, and [] po lice officers restricting their activity to such areas are permitted the same intrusion and the same level of observation as would be expected from a ‘reasonably re spectful citizen.’”); State v. Gabbard , 877 P.2d 1217, 1221 (Or. Ct. App. 1994) (“An officer’s right to go to the front door of a house is based on implied consent to allow visitors to take reasonable steps to make contactwith the occupant.”). 5 Accordingly, “[w]hen police enter on to private property . . . and rest rict their entry to places that other visitors would be expected to go, such as walkways, driveways, or porches, any observation made from these areas is permissi ble under the Fourth Amendment.” Trimble v.

State , 816 N.E.2d 83, 88 (Ind. Ct. App. 2004); see also State v. Maxfield , 886 P.2d 123, 134 (Wash. 1994) (“If a law enforcement officer or agent does not go beyond the area of the residence that is impliedly open to the public, such as the driv eway, the walkway, or an access route leading to the residence, no pr ivacy interest is invaded.”). The landowner’s implied consent is generally presumed to exist absent evidence of an affirmative intent to exclude the public from the premises. See, e.g. , People v. Kozlowski , 505 N.E.2d 611, 612 (N.Y. 1987) (“Absent ev idence of intent to exclude th e public, the en tryway to a

5 See generally 1 Wayne R. LaFave, Search and Seizure § 2.3(f), at 600-03 (4th ed. 2004).- 10 - person’s house offers implied permission to ap proach and knock on the front door.”); State v.

Somfleth , 8 P.3d 221, 227 (Or. Ct. App. 2000) (“A homeow ner can abrogate the presumption of implied consent to approach the front door by undertaking sufficient steps to exclude casual visitors from the front yard.”). Here, then, we must consider whether, under the totality of the circumstances, Robinson affirmatively intended to excl ude members of the public from her premises. See generally State v. Wyatt , 961 P.2d 653, 656 (Idaho Ct. App. 1998) (“The determination whether a particular citizen had a legitimate expectation of privacy depends upon the unique facts of each case. We therefore ex amine the citizen’s efforts to protect his own privacy from observation by the general public, ta king into account norms of social conduct and the nature of the premises.”). 6 Factors that may be particularly rele vant to this determination include, inter alia : (1) whether the homeowner has erected any physical barriers, such as gate s or fences, across the entrance to the property, and (2) whether the homeowner has posted signs, such as “no trespassing” or “private propert y” signs, indicating a desire to exclude the public from the premises. See, e.g. , State v. Christensen , 953 P.2d 583 (Idaho 1998) (no implied invitation to enter where the entrance to the driveway was obs tructed by a closed gate posted with a “no

6 We note that the issue of whether a propert y owner gave law enforcement officers free and voluntary consent to search the premis es is a question of fact. See, e.g. , Hargraves v. Commonwealth , 37 Va. App. 299, 307, 557 S.E.2d 737, 741 (2002) (“The presence of consent is, however, a factual question.”). Here, howev er, we are not questioning whether Robinson extended her consent to search the property, but rather, whethe r, under the tota lity of the circumstances, she had rescinded her implied consent to enter that property. Because the existence of this implied consent is presumed to exist absent evidence of an affirmative intent to exclude the public from the premises, see Somfleth , 8 P.3d at 227, the implied invitation to enter arises by operation of law. Accordingly, th e issue of whether, unde r the totality of the circumstances, Robinson impliedly consented to have members of the public enter her property is a mixed question of law and fact that is properly reviewable on appeal. See id. at 225 (where the relevant facts were undisput ed, classifying the issue of wh ether property owner extended his implied consent for members of the public to en ter his backyard as “purely legal”).- 11 - trespassing” sign); State v. Pacheo , 101 S.W.3d 913, 919 (Mo. Ct. App. 2003); State v. McIntyre , 860 P.2d 299, 301 (Or. Ct. App. 1993) (“[C] ourts must consider all surrounding circumstances, including the existence of a fence, to determine the residents’ intent.”); State v. Ridgway , 790 P.2d 1263, 1265 (Wash. Ct. App. 1990) (holding that marijuana recovered from doorstep should have been suppressed because police observed the marijuana after walking around a closed gate and evading guard dogs while approaching the house). Here, Robinson did not erect a ny physical barriers barring entry onto her property. There were no gates, fences, wires, highway cones, or other obstacles indicating that members of the public were not welcome to use th e driveway and front sidewalk in an effort to speak with the occupants of the premises. Nor did she post any signs indicating that the public in general—or police officers in particular—w ere not welcome to enter the pr operty and approach the front door. Considering the totality of the circumstances, we conclude that, on the night in question, Robinson impliedly consented to have memb ers of the general public—including law enforcement officers—enter the driveway and front sidewalk of her premises.

2. Although we hold that Robinson extended an implied invitation to the public to enter her property and approach the front door, we must also consider wh ether Officer Cox’s conduct on the night of the party exceeded the scope of that implied consent. Ultimately, whether the officer exceeded the scope of the implied consent “canno t be determined by a fixed formula,” but must instead “be based on the facts and circumstances of each case.” People v. Thompson , 270 Cal. Rptr. 863, 874 (Cal. Ct. App. 1990). 7

7 Relevant factors that have b een identified include “whether the officer (1) spied into the house; (2) acted secretly; (3) appr oached the house in daylight; (4) used the normal, most direct route to the house; (5) attempted to talk with the resident; (6) cr eated an artificial vantage point; and (7) made the discovery accidentally.” State v. Ross , 959 P.2d 1188, 1190 (Wash. Ct. App. 1998).- 12 - “[U]nder normal circumstances, un invited visitors coming to a residence to speak with an owner or resident are expected to come to th e residence’s most direct, obvious, and prominent entryway, which in most cases is the front door.” Trimble , 816 N.E.2d at 88. These visitors “are also expected to leave by the same route after knocking on the front door and receiving no response,” unless the “nature of the circumstances surrounding the visit” in dicate that the visitor “could reasonably be expected to seek out reside nts through areas other than the front door.” Id. Generally, “a substantial and unreasonable departure from the normal access route will exceed the scope of the implied invitati on and intrude upon a cons titutionally protected privacy interest.”

Clark , 859 P.2d at 350. Similarly, entering the property late at night, especially if accompanied by the use of subterfuge, may exceed the scope of the im plied invitation. As noted by one court, Furtive intrusion late at night or in the predaw n hours is not conduct that is expected from or dinary visitors. Indeed, if observed by a resident of the premis es, it could be a cause for great alarm. As compared to open da ytime approaches, surreptitious searches under the cover of darkness create a greater risk of armed response—with potentia lly tragic results—fro m fearful residents who may mistake the police offi cers for criminal intruders. Cada , 923 P.2d at 478; see also Brown v. State , 392 So. 2d 280, 284 (Fla. Dist. Ct. App. 1980) (finding that police violated defendant’s reasona ble expectation of privacy when they entered defendant’s driveway without a warrant at 1:45 a.m. and a rrested him); State v. Cloutier , 544 A.2d 1277, 1280 (Me. 1998) (noting that “the imp lied invitation extends only to recognized

access routes . . . and to reasonable times of day ” (emphasis added)); State v. Myers , 815 P.2d 761, 769 (Wash. 1991) (noting that whether a police o fficer enters a premises during the daylight hours is relevant in determining whether the scop e of the implied consent has been exceeded). Also, although law enforcement officers who “enter areas of the curtilage which are impliedly open” to the public are “free to keep their eyes ope n,” State v. Seagull , 632 P.2d 44, 47- 13 - (Wash. 1981), an officer who implements an overly intrusive means of inve stigation, such as the use of binoculars or other sensory-enhancing devices, may exceed the scope of the implied

consent. See Cada , 923 P.2d at 477 (“The scope of the imp lied invitation to enter areas of the curtilage that provide direct access to the house . . . may be exceeded where officers employ a particularly intrusive met hod of viewing.”); Cloutier , 544 A.2d at 1280 (holding that the defendant had no reasonable expectation of privacy in a marijuana plant where, inter alia , the officer “detected the contraband by m eans of his natural senses”). But cf. State v. Lee , 633 P.2d 48, 51 (Utah 1981) (“[T]he use of a fl ashlight to assist the natural vision at night does not make an ‘observation’ a ‘search.’”). Here, considering the totality of the circumstances, we conclude that Officer Cox did not exceed the scope of Robinson’s implied consent to enter the premises and approach the front

door of her home. Officer Cox entered the drivew ay, began to drive toward the residence, and, before he reached the area of the dr iveway where the front walk intersects with the driveway, he saw the minors drinking in the backyard. At thatpoint, Officer Cox had gone no further than any member of the public would have gone in an atte mpt to contact the owners of the property. He did not stray from the “path” lead ing directly from the road to th e front door (i.e., the driveway and the front sidewalk), nor did he attempt to conduct a general search of the premises through use of an overly intrusive m eans of investigation. Moreover, although Officer Cox parked his polic e car in the parking area by the garage, those portions of the curtilage im pliedly open to the public encomp ass areas “that other visitors would be expected to go,” Trimble , 816 N.E.2d at 88, including “parking areas” in which a visitor might reasonably be e xpected to leave his vehicle wh en attempting to contact the residents of the property. See Cada , 923 P.2d at 477 (“[T]he direct access routes to the house, including parking areas , driveways and pathways to the entry, are areas to which the public is- 14 - impliedly invited . . . .” (emphasis added)); Clark , 859 P.2d at 349 (“There is an implied invitation for the public to use access routes to the house, such as parking areas , driveways, sidewalks, or pathways to the entry . . . .” (e mphasis added)). Because the parking area by the garage is at the end of the driveway and direc tly adjacent to the front sidewalk, Robinson could reasonably expect a visitor to park his vehicl e in that area when attempting to contact the residents of the home. Accordingly, Officer C ox did not exceed the scope of the implied consent when he pulled his car into the parking area by the garage. Also, although Officer Cox entered the curtila ge of Robinson’s home at 11:00 p.m., a late hour of the evening, this entry did not necessari ly exceed the scope of the implied consent. “Under some circumstances, the mere fact that th e intrusion was made late at night may be a factor suggesting th at the police conduc t was unduly intrusiv e.” State v. Morris , 961 P.2d 653, 657 n.3 (Idaho Ct. App. 1998). Here, however, the lights along Robinson’s front sidewalk and the lights on the front porch were still illuminated. Also, multiple cars were parked along the driveway and on the public road in front of the house. These f actors give rise to a reasonable

inference that the landowner’s im plied consent to approach the front door of the residence had not yet been rescinded for the night. 8 Also, we note that Officer Cox drove up the driveway with his headlights turned on—the same way that any member of the general public would presumably have approached the house—rather than using subterfuge or the “cover of darkness” in an attempt to disguise his approach. Compare Cada , 923 P.2d at 478 (officers exceeded scope of implied consent where they engaged in a “cland estine intrusion . . . under cover of darkness in the dead of night”), with Clark , 859 P.2d at 346 (officers did not ex ceed scope of implied consent

where the officers went to the front door of the residence at 10:00 p.m. to investigate a

8 This inference is supported by the fact that various members of the public had, in fact, approached the residence and “crashed” the party on the night in question.- 15 - neighbor’s complaint about a loud party). 9 Considering the totality of the circumstances, we conclude that, on the night in question, the imp lied invitation to enter Robinson’s premises was still open even at this late hour , and Officer Cox did not exceed th e scope of this implied consent when he drove up Robinson’s driveway and parked his car in the parkin g area by the garage. Robinson argues, however, that Officer Cox’s su bjective intent—specifi cally, to see if the party attendees “scattered” as he approachedthe house—renders the entry unconstitutional, reasoning that the officer subjec tively intended to conduct a genera l search of the premises. Because a homeowner who impliedly consents to have law enforcement officers enter the property does not also consent to a general search of that property, Robinson concludes that Officer Cox exceeded the scope of the implied consent by entering the premises while subjectively intending to search the property. Initially, we agree that, although a property ow ner’s implied consent generally authorizes law enforcement officers to seek out the occupants of the residence in order to “investigate,” see,

e.g. , United States v. Hammett , 236 F.3d 1054, 1059 (9th Cir. 2001) (“Law enforcement officers may encroach upon the curtilage of a home for the purpose of asking questions of the occupants.”), the scope of this implied consent does not also encompass the right to conduct a general search of the premises, see, e.g. , United States v. Bradshaw , 490 F.2d 1097, 1100 (4th Cir. 1974) (noting that the officer may not extend the scope of the implied consent to conduct “a search of such premises”); see also Rogers v. Pendleton , 249 F.3d 279, 288 (4th Cir. 2001); Alvarez v. Montgomery County , 147 F.3d 354, 358 (4th Cir. 1998). Thus, if a law enforcement

9 See also Morris , 961 P.2d at 657 n.3 (noting that the “l ate hour” was “not such a factor in this case,” reasoning that “[i]f the investig ation had been delayed until the next day, the [subject of the investigation] might have been gone”); Ross , 959 P.2d at 1191 (finding that the officers exceeded the scope of an implied invitation where “the o fficers arrived in an unmarked car, in plain clothes, after midni ght, and made no attempt to cont act [the defendant] or otherwise notify him of their presence”).- 16 - officer, while searching for evidence of illicit activit y, strays from the “path” that is impliedly open to the public, he has exceeded the scope of the implied consent and, as a result, violated the

Fourth Amendment. However, the determination of whether a F ourth Amendment viola tion has occurred is based on “‘an objective assessment of the officer’s actions . . . and not on the officer’s state of mind at the time the challenged action was taken.’” Limonja v. Commonwealth , 8 Va. App. 532, 538, 383 S.E.2d 476, 480 (1989) ( en banc ) (quoting Maryland v. Macon , 472 U.S. 463, 470-71 (1985)); see also Deer v. Commonwealth , 17 Va. App. 730, 734, 441 S.E.2d 33, 36 (1994) (“Attention must be focused on objective reason ableness rather than on the police officer’s subjective intent.”). Although cases from other jurisdictions have inquired into whether the officer subjectively intended to search the prope rty, we note that, in each of those cases, the officer’s subjective intent only became relevant if the officer exceeded the ordinary scope of the implied consent by, for example, inva ding other areas of the curtilage after attempting a “knock and talk.” See, e.g. , Estate of Smith v. Marasco , 318 F.3d 497, 520-21 (3d Cir. 2003) (remanding qualified immunity case for further factual determinations where the officers knocked on the front door, the defendant failed to answer, and the offi cers then entered the backyard of the residence); Alvarez , 147 F.3d at 357 (inquiring into officer’s subjective purpose for entering the backyard where the officers, who were investigating an underage drinking party, approached the front door, noticed a sign that sa id “Party in Back,” and then went to the backyard to “speak with the party’s host”). Here, however, Officer Cox had not yet pe rformed a “knock and talk,” nor had he invaded any areas of the curtilage other than those associated with the “path” to the front door. Indeed, when Officer Cox first viewed the illici t activity, he had not yet finished driving up the driveway. Under the circumstances of this case, then, there is no additional intrusion into the- 17 - curtilage that would necessitate an inquiry into whether Officer Cox subjectively intended to conduct a general search of the property when he first entered the driveway. Accordingly, we hold that Officer Cox’s subjective intent is irrelevant under the ci rcumstances of this case. See

Edwards v. Commonwealth , 38 Va. App. 823, 827, 568 S.E.2d 454, 456 (2002) (“The United States Supreme Court has articulated the standard for measuring the scope of an individual’s

consent under the Fourth Amendment to be ‘ objective reasonableness . . . .’” (quoting Florida v.

Jimeno , 500 U.S. 248, 251 (1991) (internal quotati on marks omitted) (em phasis added))); see

also McIntyre , 860 P.2d at 302 (holding that “[t]he tr ial court’s reliance on the officers’ investigative purpose was misplaced” because “‘[c ]riminal investigation is as legitimate a societal purpose as is census taki ng or mail delivery’” (quoting Corbett , 516 P.2d at 490) (second alteration in original)); cf. Krause v. Penny , 837 F.2d 595, 597 (2d Cir. 1988) (dismissing qualified immunity suit where “a reasonable officer . . . might [] have [objectively] believed that [the plaintiff] consented to his presence in the driveway”). Thus, considering the totality of the circumstances, we conc lude that, on the night of the party, Robinson impliedly consented to have me mbers of the public—including law enforcement officers—enter her driveway. We further conclude that Officer C ox did not exceed the scope of this implied consent because, by driving up the driveway and parking in the parking area, he went no further than an ordinary member of the public would have gone in an attempt to contact the occupants of the premises. Accordingly, be cause Robinson extended an implied invitation to enter the property, and because Officer Cox did no t exceed the scope of that implied consent, the Fourth Amendment had not been implicated at th e point in time when the officer observed the individuals drinking beer and then fleeing into the woods. Because Officer Cox was legitimately present on the property when he viewed the illegal activity, and because Robinson presents no further arguments in support of her position that the- 18 - trial court should have granted her motion to suppress, 10 we hold that the trial court did not err in denying the motion to suppress. Acco rdingly, we affirm her convictions. B. George Robinson: Probabl e Cause and Exigent Circumstances Counsel for George Robinson 11 contends, however, that, once Officer Cox confirmed his suspicion that underage individual s were consuming alcoholic beve rages, the officer should have immediately left or otherwise secured the premis es and then obtained a search warrant. Any further intrusion into the property, Robinson reasons, including the “search and seizure subsequently conducted in the . . . backyard,” violated the Fourth Amendment because the officer lacked the exigent circumstances suffici ent to justify the warrantless entry onto the property. For the reasons that follow, we disagree. As Robinson argues, it is true that, “absent (1) exigent ci rcumstances and probable cause or (2) consent, law enforcement agents cannot en ter the curtilage of a person’s home either to search or seize without previously obtaining a warrant.” Jefferson , 27 Va. App. at 16, 497 S.E.2d at 481. Here, as discussed in Part III(A), supra , and as Robinson concedes, Officer Cox’s

initial intrusion into the cu rtilage was justified because Robinson—by extending an implied invitation to members of the publ ic to enter his driveway—implie dly consented to that limited intrusion. The only remaining question that must be resolved, then, is whether Officer Cox, once he had observed the minors drinking beer and flee ing into the woods, could intrude further into the curtilage without violating R obinson’s constitutional rights. Under the circumstances of this case, we conclude that the entry was justified.

10 During oral arguments, Elisa Robinson conced ed that, if Officer Cox was legitimately present on the driveway, his subsequent entry in to the backyard would be permissible because the officer had both probable cau se and exigent circumstances.

11 For purposes of this subsection, George Robinson will be referred to simply as “Robinson.”- 19 - Initially, we note that the facts, when vi ewed in the light most favorable to the Commonwealth, establish that Officer Cox did not exceed the scope of Robinson’s implied

consent until after he had observed the underage individu als drinking alcohol and then fleeing from the scene. Specifically, as discusse d above, Robinson had impliedly consented for members of the public to intrude upon certain, limited areas of the curtilage, including the driveway, the sidewalk, the area of the driveway immediately adj acent to the sidewalk, and the parking area at the end of the driveway. Thus , Officer Cox, who was located “at the bush” when he “clearly” saw “two male juve niles standing on the other side of the tree holding beer bottles,” had not exceeded the scope of the implied consent when he initially viewed the illegal activity. And, before Officer Cox could proceed significantly further up the driveway, 12 the individuals “looked at [Cox], . . . looked . . . towards the ba ck of the house, [] yelled ‘cops,’ . . . dropped their beer bottles[,] and [then] ran down [the] fence line, toward s the woods.” It was only then that Officer Cox parked his car , got out of the police vehicle, and entered the backyard. Considering these facts, the tr ial court found that Officer Cox’ s subsequent intrusion into the backyard was justified because he possessed both probable cause and exigent

circumstances. 13 We agree. Clearly, once the o fficer observed the seemingly underage

12 Robinson argues that, because Cox “had contin ued traveling the entire time that these observations were being made,” this Court mu st find, of necessity, that Officer Cox had “penetrated the privacy line” when the juveniles first noticed the police ve hicle and then fled. The record is silent on the issue of Officer Cox’ s exact location when the juveniles dropped their beer bottles and ran into the woods. Howe ver, as discussed in Part III(A)(2), supra , Officer Cox had not yet exceeded the scope of Robinson’s implie d consent when he parked his police vehicle in the parking area by the garage. Thus, even if Officer Cox did not observe the fleeing juveniles until after he had pulled into the parking area, he had not yet exceeded the scope of the implied invitation.

13 Specifically, the trial cour t found that the Commonwealth had established probable cause because: (1) “there were three calls c oncerning the possibility of underage drinking,” (2) there were ten to twenty cars “parked in fr ont of the home,” and (3) the officer observed two individuals holding clear beer bott les who “dropped the bottles and ran after yelling ‘cops.’” The trial court further held that the Commonwealth ha d established exigent circumstances “given the- 20 - individuals holding beer bottles a nd then fleeing from the police pr esence, he had probable cause to believe that a crime was being committed. See, e.g. , Code § 4.1-305(A) (providing that “[n]o person” under the age of 21 “shall consume, purchase or possess, or attempt to consume, purchase or possess, any alc oholic beverage”); see also State v. Jangala , 961 P.2d 246, 247 (Or. Ct. App. 1998) (holding that a law enforcement o fficer had probable cause to believe the crime of furnishing alcohol to a minor was taking place after the officer observed a group of people who appeared to be minors “holding red plastic cu ps that [the officer] recognized as the type commonly used to serve beer from a keg”). 14 The only remaining issue, then, is whether exigent circumstances justified the warrantless entry. As noted by the Virginia Supreme Court, fact ors to consider when determining whether exigent circumstances justifie d a warrantless entry include: (1) the degree of urgency involve d and the time required to get a warrant; (2) the officers’ reasonabl e belief that contraband is about to be removed or destroyed; (3) th e possibility of danger to others, including police officers left to gua rd the site; (4) information that the possessors of the contraband ar e aware that the police may be on their trail; (5) whether the offense is serious, or involves violence; (6) whether officers believe the suspects are armed; (7) whether there is, at the tim e of entry, a clear showing of probable cause; (8) whether the officers have strong reason to believe the suspects are actually present in the premises; (9) the likelihood of escape if the suspect s are not swiftly apprehended; and (10) the suspects’ recent entry into the premises after hot pursuit.

likelihood of evidence being destroyed and juven iles running away,” reasoni ng that “there was a high likelihood that the party would disperse quickly and evidence be destroyed once the juveniles or the Robinsons knew the police were on the property,” further noting that “persons not detained by Corporal Cox would be likely to destroy evidence of the party immediately.”

14 Indeed, as already noted, Robinson conceded the issue of probab le cause during oral arguments, focusing instead on whether the officer had exigent circumstances sufficient to justify his warrantless entry.- 21 - Verez v. Commonwealth , 230 Va. 405, 410-11, 337 S.E.2d 749, 753 (1985); see also Cherry v.

Commonwealth , 44 Va. App. 347, 360, 605 S.E.2d 297, 303 ( 2004). Moreover, in evaluating whether exigent circumstances justified a warran tless entry, we concern ourselves with “what an objectively reasonable officer on th e scene could have believed.” United States v. Leveringston , 397 F.3d 1112, 1116 (8th Cir.), cert. denied , 126 S. Ct. 159 (2005). “If such an officer would have had sufficient grounds to believe there was an exigency, then the Fourth Amendment does not require a warrant.” Id. Here, there is ample evidence in the record to support the trial court’s finding that exigent circumstances justified the warrantless entry. Sp ecifically, Officer Cox could reasonably have believed that multiple, underage individuals had ga thered at a party in the country and consumed significant quantities of alcohol. Many of these individuals had dr iven to the residence and, if left to their own devices pendi ng issuance of a search warrant, may have attempted to drive home, placing both themselves and the general public at risk of significant harm. See, e.g. , Radloff v. City of Oelwein , 380 F.3d 344, 348 (8th Cir. 2004) (holding that “[e]xigent

circumstances existed . . . because of the threat to public safety if the juveniles left the house in

cars while under the influence of alcohol,” further noting th at “[i]t would have been unreasonable . . . to require the officers to quarant ine the juveniles’ cars during the period of time

it would have taken to obtain a warrant”), cert. denied , 125 S. Ct. 967 (2005); see also Howes v.

Hitchcock , 66 F. Supp. 2d 203, 216 (D. Mass. 1999) (holdi ng that the police officers could have reasonably believed exigent circumstances existed where, inter alia , the officers were aware of the “risk to public safety posed by the possibi lity of the [intoxicated, underage] partygoers getting into their cars ” and driving away). Also, upon sighting the police vehicle, several of the partygoers fled into the woods, not only creating a risk of harm to themselves but also a risk that evid ence (specifically, their- 22 - identities and blood alcohol le vels) would be forever lost. Moreover, Officer Cox could reasonably have believed that, ha d he left the premises to secure a search warrant, there was a significant likelihood that the rema ining partygoers—who were, at th at point, aware of the police presence—would either flee or destroy physical evidence in an attempt to “cover up” the existence of the underage drinking party. See, e.g. , Howes , 66 F. Supp. 2d at 215 (holding that

“the threat of destruction of evidence was suffi cient to permit the warrantless entry” where “an objectively reasonable police officer . . . could have concluded that . . . many of the besotted teenagers would have fled” once they became awar e of the police presence, and “[o]thers would have attempted to destroy or at least conceal ev idence of the teenagers’ drinking had the officers waited patiently to obtain a warrant”); Jangala , 961 P.2d at 247-48 (noting that “evidence of the crime of furnishing alcohol to minors is easily destroyed,” and concludi ng that, because the officers “were aware that the evidence that they needed to seize was easily destroyed, combined with the fact that partygoers were aware of the police presence and had either run from the scene or otherwise attempted to avoid detection, th ere were exigent circ umstances supporting the warrantless entry”). 15 Considering the totality of the circ umstances, we hold that the exigencies

of this situation were sufficient to authori ze Officer Cox’s warrantle ss entry into Robinson’s backyard. Moreover, we disagree with R obinson’s argument that this situation is one in which the investigating officer “manufactured the exigency.” It is well se ttled that, where law enforcement officers “create the exigency themselves, warra ntless activity is per se unreasonable and we require suppression of any evidence obtain ed thereby.” United States v. Webster , 750 F.2d 307, 328 (5th Cir. 1984). However, as we have noted , law enforcement officers “‘are under no duty

15 Indeed, the record reflects that Elisa Robi nson at one point “told several juveniles to swallow vinegar in order to fool the [breathalyzer].”- 23 - to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which ma y fall far short of the amount necessary to support a criminal conviction.’” Cherry , 44 Va. App. at 360-61, 605 S.E.2d at 303 (quoting

United States v. Tobin , 923 F.2d 1506, 1511 (11th Cir. 1991) (int ernal quotations omitted)); see

also Carwell v. Lewis , 417 U.S. 583, 595 (1974) (“[W]e know of no case or principle that suggests that the right to sear ch on probable cause and . . . unde r exigent circumstances [is]

foreclosed if a warrant was not obtained at the first practicable moment.”). Thus, where the exigencies arise during the course of a contin ued investigation, those exigencies will not be

deemed “manufactured” unless the officer had a meaningful opportunity to obtain a search warrant prior to the development of the ex igencies upon which he relied. See, e.g. , Webster , 750 F.2d at 327 (“Our first concern in analyzing a claim of manufactured exigency is whether agents could have obtained a search warrant prior to the development of the exigent circumstances upon which they relied.”); see also United State v. Cucci , 892 F. Supp. 775, 788 (W.D. Va. 1995) (“[A] postponement in obtaining a warrant is appropriate when the purpose for the delay is to ‘ferret out any hitherto unknown individuals involved in the illic it undertakings, gather additional evidence substantiating the crimes believed to have been committed, or discover any other offenses in which the suspects are i nvolved.’” (quoting Unite d States v. Hultgren , 713 F.2d 79, 87 (5th Cir. 1983))). Despite Robinson’s argument to the contrar y, then, Officer Cox was “under no duty” to leave the premises “the moment” he had the “min imum evidence to establish probable cause.” Cherry , 44 Va. App. at 360-61, 605 S.E.2d at 303. And, as discussed above, negligible time passed between the moment that Officer Cox “cl early” saw “two male juveniles standing on the other side of the tree holding beer bottles,” and the moment that these individuals became aware of his presence and fled. Because the developm ent of probable cause and the creation of the- 24 - exigencies were virtually contemporaneous, Officer Cox had no meaningful opportunity in which to obtain a search warrant for the propert y before exigent circumstances necessitated his further intrusion onto the premises. Accordingly, we conclude that the “manufactured exigency” doctrine is inapplicable under the ci rcumstances of this case. See Webster , 750 F.2d at 328 (declining to hold “that agents manufactured exigent circumstan ces by placing the [property] under surveillance” while attempting to gather further information). For these reasons, we hold that the trial court did not err in concluding that the officer had both probable cause and exigent circumstances su fficient to justify his warrantless entry into Robinson’s backyard. Thus, we affirm the denial of his motion to suppress.

IV. CONCLUSION We hold that, under the facts of this case, the Robinsons extended an implied invitation to members of the public to enter the driveway and approach the front door of the residence. Because the Robinsons impliedly consented to th e initial, limited intrusion, Officer Cox’s presence on the driveway did not constitute an illegal search. Moreover, once he observed the underage individuals drinking beerand fleeing into the woods, Of ficer Cox’s further intrusion onto the property was justified because he possessed both probable cause and exigent

circumstances. Because Officer Cox did not vi olate the Fourth Amendment, we hold that the trial court properly denied the Robinsons’ motions to suppress. Accordingly, we affirm their convictions for contributing to the delinquency of a minor.

Affirmed.- 25 - Bumgardner, J., with whom McCl anahan, J., joins, concurring. I concur in the result but do not join the opinion because it rules too broadly. The officer was lawfully on the defendants’ property when he observed ongoing crim es. That knowledge permitted him to pursue and arrest the crimes being committed.- 26 - Elder, J., concurring, in pa rt, and dissenting, in part. I concur in the majority’s ruling, based on the Commonwealth’s concession, that Officer Cox was in the curtilage of the Robinsons’ home when he first viewed probable illegal activity in the form of underage drinking. However, I disagr ee with the majority that Officer Cox’s entry onto the curtilage was reasonable under the facts of this case. I believe it is the subjective intent

of the citizen regarding whether to waive a constitutional right that ultimately controls. The legal fiction that implied consent exists for the police to enter the curtilage of a private residence for a knock-and-talk has never been held by the United States or Virginia Supreme Court to override the pronouncement of Schn eckloth v. Bustamonte , 412 U.S. 218, 93 S. Ct. 2031, 36 L. Ed. 2d 854 (1973), that assessing the volun tariness of consent to a sear ch is to be judged from the subjective perspective of the part icular citizen involved. Becaus e the evidence fails to prove either (1) that anyone with a reas onable expectation of privacy in the Robinsons’ curtilage in fact consented to Officer Cox’s entry thereon or (2) that Officer Cox could reasonably have concluded, under the facts of this case, that those with a reasonab le expectation of privacy would have consented if asked, I would hold the evidence fails to support the trial court’s conclusion that Officer Cox’s presence on the Robinsons’ pr operty was reasonable and did not violate the Fourth Amendment’s pronouncement against unreasona ble searches. Thus, I respectfully dissent from the majority’s affirmance of the Robinsons’ convictions. The majority states, “Here, . . . we are not questioning whether Robinson extended her

consent to search the property, but rather, whether, under the totality of the circumstances, she had rescinded her implied consent to enter that property.” Settled principles establish that Officer Cox’s entry onto the Robi nsons’ property, in and of its elf, was a search within the meaning of the Fourth Amendment’s reasonableness requirement, see, e.g. , United States v.

Dunn , 480 U.S. 294, 301, 107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326, 334 (1987), albeit one- 27 - arguably less intrusive than an entry or actual search of the dwelling itself. The majority concludes the entry was reasonabl e based on the existence of whatit finds was the homeowners’ implied consent “to have members of the ge neral public—including law enforcement officers— enter the driveway and front sidewalk,” parts of the property they could be expected to cross if entering for purposes of a “knock and talk.” Although Fourth Amendment issues are gene rally judged by standards of the objective reasonableness of a police office r’s beliefs or actions , not all Fourth Amendment issues are judged by such standards. See, e.g. , Kyer v. Commonwealth , 45 Va. App. 473, 481 n.2, 612 S.E.2d 213, 217 n.2 (2005) (en banc) (noting community caretaker standard considers officer’s subjective intent). This case presents an exam ple of the inherent tens ion between the general Fourth Amendment standard for assessing the re asonableness of an offi cer’s actions and the standard for determining whether an individual has consented to a search. The United States Supreme Court has held that the test for determin ing the voluntariness of a consent to search is based on the subjective intent of the individual claimed to have wa ived his right to be free from

unreasonable searches. See Schneckloth , 412 U.S. at 227, 93 S. Ct. at 2047-48, 36 L. Ed. 2d at 862-63; see also United States v. Wilson , 895 F.2d 168, 171 (4th Cir. 1990) (comparing objective standard for determining whether seizur e has occurred with subjective standard for determining consent to search). Under a subjective test, the fact that the Robinsons did not take affirmative steps to

exclude alltrespassers does not esta blish that they subjectively intended to consent to police entry onto the curtilage of thei r property for purposes of a knock- and-talk or any other purpose. Neither the United States nor the Virginia Suprem e Court has ever held, as the majority of our Court does today, that “implied consent [to entry by the police for a knock-and-talk] is presumed

to exist absent evidence of an affirmative intent to exclude the public from the premises,” see- 28 - discussion, supra , at 10 n.6 (citing State v. Somfleth , 8 P.3d 221, 227 (Or. Ct. App. 2000)) (emphasis added), or that “[an] implied invita tion [to enter for such a purpose] arises by operation of law,” see id. Here, the police made no claim that the Robins ons gave actual consent to have the police enter the curtilage of th eir home on the night at issue. Officer Cox testified that the police made no attempt to contact the Robinsons’ home by tele phone or any other means before driving onto the property that night. The fact that the Robinsons had not po sted “no trespassing” signs and may have consented, if asked, to allow other member s of society such as le tter carriers and Girl Scouts onto the curtilage does not mean that th ey would, if asked, ha ve granted the same privilege to the police on the night at issue. T hus, if the entry is to be judged purely from the subjective perspective of the homeowner, the absence of actual cons ent ends the inquiry. At most, then, the Commonwealth might claim that, although Officer Cox lacked actual consent, his entry onto the curtilage did not vi olate the Fourth Amendm ent because a reasonable officer would have believed those having a reasonab le expectation of privacy in the curtilage did consent or would have consented, if asked, to ha ve the police enter for a knock-and-talk on the night at issue. Cf. Florida v. Jimeno , 500 U.S. 248, 251, 111 S. Ct. 1801, 1803-04, 114 L. Ed. 2d 297, 302 (1991) (holding “[t]he standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ r easonableness--what would the typical reasonable person have understood by the exchange between the officer and the suspect?” (emphasis added)); Illinois v. Rodriguez , 497 U.S. 177, 185-86, 110 S. Ct. 2793, 2799-2800, 111 L. Ed. 2d 148, 159-60 (1990) (holding that genera l rule that officer’s assessmen ts of fact need not always be correct as long as they are reasonable applies to officer’s a ssessment of whether party giving consent to search has authority to do so); United States v. Smith , 395 F.3d 516, 519 (4th Cir. 2005) (“[T]he Fourth Amendment does not even require that the suspect actually consent to a- 29 - government search; factual determinations by the government, such as the presence of consent,

must be reasonable , but are not required alwa ys to be correct.”). I believe the objective

reasonableness of an officer’s assessment of whether a homeown er has consented should not be

relevant when the issue deals wi th protecting one’s Fourth Amendm ent rights in his home and its curtilage. See, e.g. , Ronald Bacigal, Choosing Persp ectives in Criminal Procedure , 6 Wm. & Mary Bill of Rts. J. 677, 729 (1998). As one commentator has opined, The fundamental right of indi viduals to control their own fate by exercising or waiving c onstitutional rights must take precedence over a police officer’s mi staken perception of consent, no matter how objectively reas onable or understandable the mistake may have been. From th e police perspective, the only sensible guide is that “they s hould never rely on consent as the basis for a search unless they mu st. If they do search relying on consent, they should be prepared to meet a heavy burden of proof that consent was in fact meani ngfully given. And even then, because of the difficulties of proof, they should expect to be told often that the search was not proper.” Id. (quoting Lloyd L. Weinreb, General ities of the Fourth Amendment , 42 U. Chi. L. Rev. 47, 64 (1976)). Nevertheless, even if we examine whet her Officer Cox coul d reasonably, albeit erroneously, have believed those having a reason able expectation of pr ivacy in the curtilage

would have consented to his entr y, if asked, we must conclude the entry violated the Fourth

Amendment. The evidence fails as a matter of law to support a finding that Officer Cox could reasonably have believed these particular citizens would have consented to his entry on the night at issue. Under the facts of this case, both the adult homeowners and any juveniles who resided with them had a reasonable expectation of privac y in the home and the por tions of the curtilage not viewable from the public road. See, e.g. , State v. Reddick , 541 A.2d 1209, 1213-14 (Conn. 1988) (holding adult child legitimately residing inhome of parent has reasonable expectation that home will be free of government intrusion); see also Grant v. State , 589 S.W.2d 11, 14 (Ark.- 30 - 1979) (recognizing implicitly that, absent parental consent for search, child has reasonable expectation of privacy in premises in which he resides with pare nt). Officer Cox went to the property that night because the police had receiv ed multiple reports that an underage drinking party was underway at the Robi nsons’ home. Under these circumstances, Officer Cox could not reasonably have concluded that e ither (a) the Robinsons, if they were at home, or (b) “the juvenile host” of the party, if the Robinsons were not present, 16 would have consented to entry of the police on the curtilage, where they could readily discover evidence of criminal activity not visible from the public road. 17 For these reasons, I would hold the evidence fail s to support the majority’s conclusion that implied consent justified the entry of the Robinsons ’ curtilage. Further, absent evidence (1) that anyone with a reasonable expecta tion of privacy in the Robinsons’ curtilage in fact consented to Officer Cox’s entry thereon or (2) that Officer Cox could reas onably have concluded, under the facts of this case, that those with a reasonable expect ation of privacy would have consented if asked, I would hold that OfficerCox’s presence on the Robins ons’ property was unreasonable and violated the Fourth Amendment’s pronouncem ent against unreasonable searches. Thus, I respectfully dissent from the majority’s affirmance of the Robinsons’ convictions.

16 Officer Cox testified that he was searching fo r the party’s juvenile host and appeared to have believed, at least after he confirmed th at underage drinking was occurring, that he would not find any adults present.

17 Although a reasonable person test pres upposes an innocent person, see, e.g. , Florida v. Bostick , 501 U.S. 429, 438, 111 S. Ct. 2382, 2388, 115 L. Ed. 2d 389 (1991) (applying principle in evaluating objective test for determining whet her suspect was illegally seized), a subjective test, such as the test for consent to search, must take into considerati on an individual’s guilty knowledge. Although guilty persons may be found to have given valid consent to search, even though such consent is agains t their self-interest, see United States v. Mendenhall , 446 U.S. 544, 555, 559, 100 S. Ct. 1870, 1878, 1880, 64 L. Ed. 2d 497, 510, 513 (1980), it is not objectively reasonable for an officer to assume, without asking, that a person he suspects is guilty of engaging in some criminal activity on his propert y would consent to law enforcement entry onto the curtilage if asked.- 31 - Benton, J., dissenting. “[A] search or seizure carried out on . . . [residential] premises without a warrant is per se unreasonable, unless the police can s how that it falls within one of a carefully defined set of exceptions based on the presence of ‘exigent circumstances.’” Coolidge v. New Hampshire , 403 U.S. 443, 474-75 (1971). See also Katz v. United States , 389 U.S. 347, 357 (1967). This principle applies to entries and searches within “the curtilage . . . [, which] has been considered part of the home itself for Fourth Ame ndment purposes.” Oliver v. United States , 466 U.S. 170, 180 (1984). Thus, the Robinsons’ driveway, a part of their home’s curtilage, was a place where they could “legitimately demand privacy” from illegitimate police intrusion. Id. at 178. The Commonwealth failed to prove that police offi cers’ warrantless entry and search onto the curtilage of the Robinsons’ reside nce falls within the “jealously and carefully drawn” exceptions to the Fourth Amendment’s warrant requirement. Jones v. United States , 357 U.S. 493, 499 (1958).

No evidence in this record establishes th at the police officers went to the Robinsons’ residence to “knock and talk.” The evidence prov ed that Sergeant Allen of the Albemarle Police Department “was . . . placed in charge of a potential investigation of an underage drinking party.” At his direction, Officer Scott Cox, a corporal, went to the property at 11:00 p.m. to “investigate” the party without a ny plan to first go to the front door to make inquiries. Indeed, the trial judge found that Officer Cox “planned to enter the property to investigate the allegations of underage consumption of alcohol.” Officer Cox testified about the plan the offi cers prepared before going to the residence. In response to the prosecutor’s questions, Officer Cox explained the plan: Q: And what was the plan? You were going to go onto the property, and then whatwas going to happen? A: I was just going to take the investigation further.- 32 - He further testified that “Sergeant Allen suggested that [Officer Cox] go first to investigate” while other police offi cers remained in their vehicles a half mile away, waiting for information from him. Officer Cox did not testify that the plan included an inquiry at the front door of the residence. Indeed, the facts patently establish that was not pa rt of the plan. When

Officer Cox drove toward the residence and was s till on the public highwa y, he saw cars in the driveway, “got on the radio and . . . said [to the other waiting officers], ‘P lease start heading this way. It appears there’s a party.’” At that point, he had s een no juveniles dri nking alcohol. Nor had he seen any people at the residence. Officer Cox then drove up the driveway “to in vestigate further,” expl aining his plan as

follows: Q: Isn’t it correct that you have described the situation you were hoping to observe as the effect wh en you flick on a light in a dark kitchen, and the cockroaches scatter? A: Right. Q: So you were looking for a reaction of people scattering to confirm your suspicion that you had an underage drinking party. A: Right. * * * * * * * Q: Officer Cox, isn’t it true that it was not your intent to walk to the front door and knock on it, as you proceeded up that driveway that night? A: My intent when I drove up the driveway was to establish probable cause, to inves tigate the scene further. When Officer Cox saw “two people that appeared to be juveniles” holding beer bottles in the backyard, he continued to dr ive past the walkway that led to the front door and stopped his vehicle “as far back on the asphalt as [he] possi bly could.” Officer Cox stopped at a place from

which he could see into the bac kyard. He testified he “wanted to identify [the two people], to find out what their age was, and to see if it was al cohol.” Officer Cox testified that when the two- 33 - people dropped the bottles and sca ttered, his suspicion about who they were and what they were holding caused him to believe it was probable that they were underage and drinking alcohol. When he exited his vehicle, he “got on the radi o, and . . . told everybody . . . that the kids were running east . . . into the woods.” He then went into the backyard as the “backup [officers] were coming to assist” because he “was looking for the juvenile hosting the party.” The sergeant’s plan of action and Officer C ox’s conduct on the driveway all establish that they were not there to “knock and talk” and that they went beyond any implied invitation to be on the property. “[N]o . . . right exists” for a police officer to enter upon the curtilage of a person’s home to conduct an investigation merely because the officer had a reasonable suspicion of criminal activity. Rogers v. Pendleton , 249 F.3d 279, 289 (4th Cir. 2001). Although the police officer may walk to the front door of a residence to knock and speak to a resident, limitations exist upon the officer’s conduct. Id. 18 [T]he right to “knock and talk,” that is, to knock on a residence’s door or otherwise approach the re sidence seeking to speak to the inhabitants, [is] not the right to make a general investigation in the curtilage based on reasonable suspicion. A contrary rule would

18 Obviously, the occupants of a residence ha ve not issued an implied invitation to the public to enter the premises to search or rumm age around or to engage in illegitimate conduct. A government agent, in the same manner as a private person, may accept an invitation to do bus iness and may enter upon the premises for the very purposes contemplated by the occupant . Of course, this does not mean that, whenever entry is obtained by invitation . . . an agent is authori zed to conduct a general search for incriminating materials. Lewis v. United States , 385 U.S. 206, 211 (1966). Thus, when, as here, an officer enters the curtilage “to establish probable cau se to investigate the scene furt her,” his intrusion does not fall within the property ow ner’s implied invitation to the public. See Lo-Ji Sales, Inc. v. New York , 442 U.S. 319, 329 (1979) (holding that “there is no basis for the notion that because a [property owner] invites the public to enter, it consents to wholesale sear ches and seizures that do not conform to Fourth Amendment guarantees”).- 34 - eviscerate the principle . . . that th e curtilage is entitled to the same level of Fourth Amendment protection as the home itself. Id. Simply put, the government failed to meet its “heavy burden” to show this was one of the few and carefully delineated exceptions to th e warrant requirement. Welsh v. Wisconsin , 466 U.S. 740, 749 (1984). Officer Cox was not sent to make an inquiry at the front door, and he never approached the front door. Acting on a re asonable suspicion, he drove onto the curtilage “to investigate the scene furthe r.” The plan the sergeant devi sed involved Officer Cox entering the curtilage “to establish probable cause” to char ge the occupants with a crime. Officer Cox’s conduct was consistent with that plan. The distinction between approach ing a house to knock on the front door, as citizens do every day, and persisting . . . in a comprehensive search for . . . underage drinkers . . . would seem obvious. . . . [G]eneral searches of the curtilage of a private home may [not] be conducted without a warrant or exigent circumstances, based simply upon reasonable suspicion. Rogers , 249 F.3d at 289. For these reasons, and for the reasons more fully discussed in Judge Elder’s dissent to the majority opinion and Judge Annunziata’s dissent to the panel’s opinion, see Robinson v.

Commonwealth , 45 Va. App. 592, 622-32, 612 S.E.2d 751, 765-71 (2005), I would hold that the police officers’ entry and search was violative of the Fourth Amendment.Tuesday 21st June, 2005.

George Fisher Robinson, Appellant, against Record No. 2539-03-2 Circuit Court Nos. 16,314, 16,317 through 16,321, 16,323, 16,328 and 16,329 Commonwealth of Virginia, Appellee.

From the Circuit Court of Albemarle County Before Chief Judge Fitzpatrick, Judges Benton, Elder, Bumgardner, Frank, Humphreys, Clements, Felton, Kelsey, McClanahan and Haley

On May 31, 2005 came the appellant, by counsel, a nd filed a petition prayi ng that the Court set aside the judgment rendered herein on May 17, 2005, and grant a rehearing en banc thereof. On consideration whereof, the petition for rehearing en banc is granted, the mandate entered herein on May 17, 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 appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion pr eviously rendered by the

Court in this matter. It is further ordered that the a ppellant 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 ClerkCOURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Fe lton and Senior Judge Annunziata ∗ Argued at Alexandria, Virginia

ELISA KENTY ROBINSON

v. Record No. 2474-03-2

COMMONWEALTH OF VIRGINIA OPINION BY JUDGE ROBERT J. HUMPHREYS GEORGE FISHER RO BINSON MAY 17, 2005

v. Record No. 2539-03-2

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY Paul M. Peatross, Jr., Judge Francis McQ. Lawrence (Rhond a Quagliana; St. John, Bowling & Lawrence, LLP, on briefs), for appellant Elisa Kenty Robinson. Jonathan T. Wren (David Heilberg; Martin & Raynor, P.C., on briefs), for appellant George Fisher Robinson. Donald E. Jeffrey III, Assistant A ttorney General (Jerry W. Kilgore, Attorney General, on briefs), for appellee.

George F. Robinson and Elisa K. Robinson (c ollectively, “the Robi nsons”) appeal their convictions for contributing to the delinquency of a minor, a viol ation of Code § 18.2-371. The Robinsons argue on appeal that the trial court erred in denying their motions to suppress, contending that, because the investigating police officer was located in the curtilage of their

home when he witnessed the i llicit activity, the resulting search violated their Fourth

∗ Judge Annunziata participated in the hear ing and decision of this case prior to the effective date of her retirement on Decembe r 31, 2004 and thereafter by her designation as a senior judge pursuant to Code § 17.1-401.- 2 - Amendment right to be free from unreasonable sear ches and seizures. For the following reasons, we disagree and affi rm their convictions.

I. BACKGROUND

In accord with our usual standard of review , on the appeal of a denial of a motion to suppress, we view the evidence and all reasonable inferences fl owing from the evidence in a light most favorable to th e Commonwealth, the party pr evailing below. Garcia v.

Commonwealth , 40 Va. App. 184, 189, 578 S.E.2d 97, 99 (2003); Sabo v. Commonwealth , 38 Va. App. 63, 69, 561 S.E.2d 761, 764 (2002). On August 16, 2002, the Albemarle County Police Department received three separate telephone calls reporting an allege d underage drinking party at the Robinsons’ home. Corporal Scott Cox was dispatched to investigate these al legations, and he arrived at the Robinsons’ home at approximately 11:00 p.m. Fr om the state road in front of the house, Cox could see ten to twenty cars parked on the state road, as well as tw o to three parked cars on the left-hand side of the driveway. From that position, Cox could also see the house, the front porch, the front door, and the front yard, although he could not see the backyard or the entire driveway. The floodlights above the front door were turned on, a nd the lights along the sidewalk leading to the

front door were also turned on. Cox, who was driving a marked police car with its headlights on, turned into the driveway and started to drive towards the house. While proc eeding up the driveway, Cox saw several additional parked vehicles near the right side of the driveway, as well as “several parked vehicles near the side of the house” straight in front of him. Cox continued up the driveway in his police car . From his position in side the police car, he began to see some “activity” in the backyard. Before reac hing the point where the walkway

to the front door intersects with the Robinsons’ driveway, Cox saw two individuals holding clear- 3 - beer bottles. The individuals, bot h of whom appeared to be unde rage, were standing by a pine tree about seven or eight yards away from Cox’s police car. Th e two juveniles “looked at [Cox], looked at the house, yelled ‘cops,’ dropped the beer bottles, and ran down a fence line toward the woods.” Cox pulled his police car behind one of the parked cars and looked to his left. From that vantage point, “[h]e saw juve niles running toward the woods.” Also, “[h]e could see a patio

table covered with beer bottles and noticed beer bottles strewn about the backyard.” Cox then got out of his car, “yelled fo r people to stop running, and ra dioed other officers who were waiting off the property that kids were running east into the woods.” The Robinsons were arrested and charged with nineteen counts of contributing to the delinquency of a minor. Both parties filed a motion to suppress, contending that Cox was unlawfully present on their property wh en he viewed the illicit activity. At the suppression hearing, several photographs were introduced depi cting the layout of the Robinsons’ premises. According to the photo graphs, the driveway originates from the state road in front of the house. The driveway then spl its into two paths. Both paths continue towards the house, and they both bend towards the right. The two branches of the driveway merge back into a single driveway near the front, right-ha nd corner of the house. The house is positioned entirely to the left of the driveway. Also, a lighted sidewalk leads from the dr iveway to the front door of the Robinsons’

home. This sidewalk intersects with the drivew ay just past the area where the two branches of the driveway reunite. A large bush has been plante d in front of the sidewa lk at the point where the sidewalk intersects with the driveway, shield ing a portion of the sidewalk from view. Other than walking across the grass in the front yard, the driveway and connect ing sidewalk serve as the only means of apparent pedestrian access to the front door of the house.- 4 - Where the driveway paths are divergent, th e area between the two branches forms an “island” containing numerous trees . These trees, along with the ge neral rightward bend of the driveway, shield the garage, b ackyard, and a large portion of th e driveway from public view. The portion of the driveway shielded from public view includes the bush and the area where the front sidewalk intersects with the driveway. At the suppression hearing, Cox testified that his police car was next to the bush in the driveway when he “clearly” saw “two male juve niles standing on the other side of the tree holding beer bottles.” To clar ify the position in the driveway from which the officer observed the juveniles, the trial cour t asked Cox, “So you were at the bush when you saw the two individuals?” Cox respo nded, “That’s right.” Cox was asked repeatedly on cross-examinati on whether he entered the driveway for the purpose of knocking on the front door to speak with an occupant of the house. Each time Cox was asked the question, he responded that he entered the property to “investigate.” Cox further responded in the affirmative to the following questio n: “Isn’t it correct that you have described the situation you were hoping to observe as the eff ect when you flick on a light in a dark kitchen,

and the cockroaches scatter?” Cox was also asked, “So you were looking for a reaction of people scattering to confirm your suspicion that you had an underage drinking party?” Cox responded, “Right.” By letter opinion dated August 4, 2003, the trial court denied the Robinsons’ motions to suppress. In its written opini on, the trial court observ ed that Cox “planned to enter the property to investigate the allegations of underage consumption of alcohol.” The trial court also observed that, “[a]s Cox went down the driveway, he could not see the backyard or the garage,” but that “[h]e could see the house, the front yard, and the front porch.” Additionally, the trial court found- 5 - that “[t]here were no signs posted”—such as a “no trespassi ng” sign—at the en trance to the driveway. Based on this evidence, the trial court found th at the Robinsons’ driveway was not part of the curtilage of the house and, therefore, c oncluded that “Cox’s presence there [did] not implicate the Fourth Amendment.” The court additionally found that Cox’s presence in the Robinsons’ driveway was justified by the officer’s right to conduct a “knock and talk,” that is, to approach a home and knock on the front door to sp eak with an occupant. Under either of the preceding rationales, the trial court concluded th at “Cox was in a lawful place in the driveway” when he observed the two juveniles drinking beer, and his observations were therefore admissible pursuant to the plain view exception to the warrant requirement. Accordingly, the trial court denied the Robinsons’ motions to suppress. The Robinsons were subsequently convicted of nine counts of contributing to the delinquency of a minor, and the trial court sentencedeach defendant to six months in jail, three months suspended, on each count. The trial cour t ordered the sentences to run consecutively, resulting in active jail time of twenty-seven months for each defendant. The Robinsons appeal.

II. ANALYSIS Although “‘[w]e are bound by the trial court’s find ings of historical fact unless ‘plainly wrong’ or without evidence to s upport them,’ . . . we review de novo the trial court’s application of legal standards . . . to the particular facts of the case.” McCracken v. Commonwealth , 39 Va. App. 254, 258, 572 S.E.2d 493, 495 (2002) ( en banc ) (quoting McGee v. Commonwealth , 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) ( en banc )) (citing Ornelas v. United States , 517 U.S. 690, 699 (1996)). Further, “[ i]n reviewing a trial court’s de nial of a motion to suppress, ‘the burden is upon [the appellant] to show that the ruling . . . constituted reversible error.’”- 6 - McGee , 25 Va. App. at 197, 487 S.E.2d at 261 (quoting Fore v. Commonwealth , 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)). Whether a defendant has a reasonable expecta tion of privacy in the item seized or the place searched is a mixed question of law and f act. That is, we are bound by the trial court’s underlying findings of fact, but we review de novo the ultimate determination of whether the Fourth Amendment applies under the circumstances of this case. See Sharpe v. Commonwealth , 44 Va. App. 448, 454, 605 S.E.2d 346, 349 (2004) (“[W]e review de novo the trial court’s application of defined legal sta ndards such as whether a defenda nt had a reasonable expectation of privacy sufficient to permit him to raise a Fourth Amendment challenge to a search.”). A. Cox Was On the Curtilage When He Observed the Juveniles Drinking Beer

The Robinsons contend that Cox conducted an unconstitutional sear ch because the place from which Cox observed the juveniles drinking beer was a part of the curtilage of their home. Although we agree that Cox observed the juveniles drinking beer from within the curtilage of the

Robinsons’ home and the trial court erred in co ncluding otherwise, that determination will not end our inquiry. See Part II.B, infra

. Because homeowners possess a reasonable e xpectation of privacy in the curtilage surrounding their homes, Oliver v. United States , 466 U.S. 170, 180 (1984), “the curtilage . . . warrants the Fourth Amendment protec tions that attach to the home.” Id. ; see also Jefferson

v. Commonwealth , 27 Va. App. 1, 15, 497 S.E.2d 474, 481 ( 1998) (“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 th e house also apply to th e ‘curtilage’ of the house.”). Because the Fourth Amendment protects the curtilage to the same extent as the home, a police officer may not enter the curtilage without a warrant, ex igent circumstances, or pursuant to an express or implied invi tation from the occupant. See Payton v. New York , 445 U.S. 573,- 7 - 589-90 (1980) (“To be arrested in the home involves not only the i nvasion attendant to all arrests but also an invasion of the sanctity of the home. This is simply too s ubstantial an invasion to allow without a warrant, at least in the absen ce of exigent circumstances . . . .” (internal quotations omitted)). Generally, the curtilage of a home is the “area around the home to which the activity of

home life extends.” Oliver , 466 U.S. at 180; see also Wellford v. Commonwealth , 227 Va. 297, 301, 315 S.E.2d 235, 238 (1984) (defining “curtilage” as the “space necessary and convenient, habitually used for family purposes and the carrying on of domestic employment; the yard, garden or field which is near to and used in connection with the dwelling”). “[W]hether a particular place is within the curtilage of th e home is determined on a case-by-case basis.”

Jefferson , 27 Va. App. at 16, 497 S.E.2d at 481 (citing United States v. Dunn , 480 U.S. 294, 301 n.4 (1987)). In determining whether the area in question constitutes curtilage, “particular reference” to the following four factors is helpful: [1] the proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the us es to which the area is put, and [4] the steps taken by the reside nt to protect the area from observation by people passing by. Dunn , 480 U.S. at 301; Jefferson , 27 Va. App. at 16, 497 S.E.2d at 481. “[T]hese factors are useful analytical tools only to the degree that, in any given ca se, they bear upon the centrally relevant consideration—whether the area in questi on is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Dunn , 480

U.S. at 301. Applying the Dunn factors to this case, we conclude that the portion of the driveway from which Cox observed the juveniles drinking beer—the area next to the bush—falls within the curtilage of the Robinsons’ home. First, the area next to the bush is within a few feet of the- 8 - home itself. Second, the Robins ons testified that they used the area for washing cars and unloading groceries, home-related ac tivities that evidence the “nat ure of the uses to which the area is put.” See id. Third, although the area next to th e bush is not “included within an enclosure surrounding the home,” see id. , the area is protected from public observation. Specifically, although the Robinsons did not erect a fence or post any no-trespassing signs, the trees and layout of the driveway obscure the area from public view. It is evident, therefore, that the area next to the bush is “protect[ed] . . . from observation by people passing by.” Id. Given

that three out of the four Dunn factors are satisfied, we are comp elled to conclude that the area next to the bush is “intimately tied to the home itself” and, thus, fa lls within the curtilage of the

Robinsons’ home. See Jefferson , 27 Va. App. at 17, 497 S.E.2d at 482 (finding that place of defendant’s arrest constituted curtilage because “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 passi ng in front of the house ” (emphasis added)); see also United States

v. Jenkins , 124 F.3d 768, 773 (6th Cir. 1997) (finding th at defendant’s backyard is curtilage

because it was “well shielded from the vi ew of people passing by on the only public thoroughfare near defendant’s property”). Accordingly, we conclude that the trial c ourt erred in holding th at the area of the driveway next to the bush was not a part of the curtilage of the house. However, in light of our holding that the Robinsons did not have a reasonable expectation of privacy in their driveway,

see Part II.B, infra , this error is harmless. See Lavinder v. Commonwealth , 12 Va. App. 1003, 1005, 407 S.E.2d 910, 912 (1991) ( en banc ) (noting that an error is harmless “if a reviewing court can conclude, without usurping the . . . fact finding function, th at, had the error not occurred, the [result] would have been the same”).- 9 - B. Whether the Robinsons Had A Reasonable Expectation of Privacy in the Area of the Driveway by the Front Sidewalk Although Cox was positioned within the curtil age when he made his observations, that determination does not end our inquiry. It is we ll established that “‘[w]hat a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection,’” California v.

Ciraolo , 476 U.S. 207, 213 (1986) (q uoting Katz v. United States , 389 U.S. 347, 351 (1967)), because there is no reasonable expe ctation of privacy in items or places that are open to public

observation. See California v. Greenwood , 486 U.S. 35, 41 (1988). The question we must answer, therefore, is whether th e Robinsons knowingly exposed to the public the area of their driveway next to the bush, the place from which Cox vi ewed the criminal activity. 1 The Commonwealth argues that the Robinsons knowingly exposed to the public the area by the front sidewalk because: (1 ) the Robinsons’ driveway is view able from the state road, and (2) visitors exercising an implied invitation to th e Robinsons’ home would us e that area to access the house and front door. Although we disagree with the former contention, we conclude that, under the circumstances of this case, the Robinson s impliedly invited members of the public onto their driveway on the night in question. Acco rdingly, because the Robinsons relinquished any reasonable expectation of privacy in this porti on of their driveway, th e Fourth Amendment does not apply to that area of the cu rtilage, and we therefore affirm the trial court’s denial of the motions to suppress.

1 We agree with the Commonwealth that obser vation of the curtilage is not prohibited when the police conduct observations from a public vantage point. See generally Florida v. Riley , 488 U.S. 445 (1989) (approving observation of the curtilage from a helicopter); Ciraolo , 476 U.S. 207 (approving observation of th e curtilage from an airplane); Jenkins , 124 F.3d 768 (approving observation of the curtilage from a he licopter). Here, however, the police did not observe the curtilage from a public vantage point, such as public airspace or a public roadway; rather, the police entered the curtilage and from that private vantage point observed criminal activity.- 10 - 1. Whether the Driveway is Visible From the Public Road The Commonwealth argues that the Robinsons have no reasonable expectation of privacy in their driveway because a segment of the driveway is visible from the state road. We disagree

with this contention. We note that each of the cases relied upon by the Commonwealth is distinguishable because, in those cases , the driveway was viewable in its entirety from a public thoroughfare. See Shaver v. Commonwealth , 30 Va. App. 789, 793, 797, 520 S.E.2d 393, 395, 397 (1999) (upholding the police search of an ATV parked in defendant’s driveway because the

ATV was “visible from the road” and because “def endants made no attempt to restrict or shield the driveway from public view”); see also United States v. Roccio , 981 F.2d 587, 591 (1st Cir. 1992) (finding no reasonable expect ation of privacy in car and driveway where the car “was clearly visible from the street on an u nobstructed driveway”); Maisano v. Welcher , 940 F.2d 499, 503 (9th Cir. 1991) (“‘The expectation of privacy which a possessor of land may reasonably have while carrying on activities on his driveway will generally depend upon the nature of the

activities and the degree of visibility from the street .’” (emphasis added) (quoting United States v. Magana , 512 F.2d 1169, 1171 (9th Cir. 1975))); United States v. Smith , 783 F.2d 648, 650 (6th Cir. 1986) (finding no reas onable expectation of privacy in defendant’s driveway where “there were no obstructions between the [ public] road and the house”); United States v. Humphries , 636 F.2d 1172, 1179 (9th Cir. 1980) (finding po lice entry into driveway to view a vehicle license plate violated no reasonable expectation of privacy where “the auto was visible from the street” and where “the driveway was [n ot] enclosed by a fence, shrubbery or other barrier”); cf. State v. Kelly , 119 S.W.3d 587, 593-94 (Mo. Ct. A pp. 2003) (finding no reasonable expectation of privacy in the ar ea around stairs leading to a front porch because “the area was not enclosed or protected from obser vation by passersby in any way a nd was entirely visible from the public street”).- 11 - Here, only a portion of the driveway was viewab le from the state road, and the area in the driveway from which Cox conducted his observations was shielded from public view by the trees and the bend of the driveway. Indeed, the tria l court specifically found that Cox could not see the backyard or the garage due to the trees loca ted between the branches of the driveway, and it

is evident that he could not s ee the two juveniles drinking beer until he reached the area next to the bush, which, as discussed above, was not view able from the state road. Because the area

from which Cox observed the crim inal activity was not viewable to members of the public traveling on the state road, the Robinsons legitimately retained a reasonable expectation of privacy in that area of the driveway unless they extended to the public an express or implied invitation to enter the property. See State v. Carter , 636 P.2d 460, 462 (Or. Ct. App. 1981) (finding that defendant had reasonable expecta tion of privacy in a por tion of his property beyond an inner gate because that area was not vi ewable from beyond an outer metal gate). 2. Implied Invitation The Commonwealth also argues that the R obinsons had no reasona ble expectation of privacy in the area by the front sidewalk becau se, on the night of the party, the Robinsons extended an implied invitation to anyone, includi ng a police officer, to approach the front door and knock. The Commonwealth’s argument is th at, in approaching the front door, a visitor would necessarily have to enter and walk up the driveway and then cross the area next to the bush in order to access the walkway to the fr ont door. Because the Robinsons should expect visitors, including a police officer , to enter the same area that Cox entered, the Commonwealth reasons that the Robinsons knowingly exposed that area to the public . The Commonwealth

concludes that the Robinsons ther efore cannot have a reasonable e xpectation of privacy in that particular area and, as a result, Cox’s presen ce in that area did not offend the Fourth

Amendment.- 12 - Considering the totality of the circumst ances of this case, we agree with the

Commonwealth and conclude that the Robinsons extended an im plied invitation to the public— including law enforcement officers—to use their driveway and front sidewalk when attempting to contact the owners or occupants of the propert y. We also conclude that, taking, as we must, the historical facts in the light most favorable to the Common wealth, Cox’s conduct did not fall outside the scope of this implied invitation.

a. Whether the Robinsons Extended an Implied Invitation to Enter the Premises It is generally recognized that, unless they affirmatively warn or discourage trespassers, owners or possessors of private property imp licitly invite the public to intrude upon certain, limited areas of their property. As we have noted, “People commonly have differe nt expectations, whether considered or not, for the access areas of their premises than they do for more secluded areas. Thus, we do not place things of a private nature on our front porches that we may very well entrust to the seclusion of a backyard, pa tio or deck. In the course of urban life, we have come to expect various members of the public to enter upon such a driveway, e.g., brush salesmen, newspaper boys, postmen, Girl Scout cookie se llers, distressed motorists, neighbors, friends. Any one of th em may be reasonably expected to report observations of crimin al activity to the police.” Shaver , 30 Va. App. at 796, 520 S.E.2d at 397 (quoting State v. Corbett , 516 P.2d 487, 490 (Or. Ct. App. 1973)). This invitation, where it exists, extends only to those areas of the pr operty that would be used when approaching the residence in an ordina ry attempt to speak with the occupants. See id. Thus, areas of the curtilage that must be cr ossed in order to appr oach the front door—for example, the driveway, front sidewalk, and front porch—are generally exempted from Fourth Amendment protection. See, e.g. , State v. Clark , 859 P.2d 344, 349 (Idaho Ct. App. 1993) (“There is an implied invitation for the public to use access routes to the house, such as parking areas, driveways, sidewalks, or pathways to the entry, and there can be no reasonable expectation- 13 - of privacy as to observations which can be made fr om such areas.”). As a result, if the property owner has implicitly invited the public to use a particular “path” when attempting to access his home, he has no reasonable expectati on of privacy in that area. See id. By extension, the same implied invitation is given to police officers who enter the curtilage while in pursuit of legitimate police business. See Shaver , 30 Va. App. at 796, 520 S.E.2d at 397 (“‘If one has a reasonable expectati on that various members of society may enter the property in their personal or business pursuits, he should find it equally likely that the police will do so.’” (quoting Corbett , 516 P.2d at 490)); see also State v. Cada , 923 P.2d 469, 477 (Idaho Ct. App. 1996) (“[T]he dir ect access routes to the house, including parking areas, driveways and pathways to the entry, are areas to which the public is im pliedly invited, and [] police officers restricting their activity to such areas are permitted the same intrusion and the same level of observation as would be expected from a ‘reasonably respectful citizen.’”). 2 Accordingly, “[w]hen police enter onto private property in order to conduct an investigation or for another legitimate purpose and restrict their entry to places that other visitors would be expected to go, such as walkways, driveways, or porches, any observation made from these areas is permissible under the Fourth Amendment.” Trimble v. State , 816 N.E.2d 83, 88 (Ind. Ct. App. 2004); see also State v. Maxfield , 886 P.2d 123, 134 (Wash. 1994) (“If a law enforcement officer or agent does not go beyond the area of the residence that is impliedl y open to the public, such as the driveway, the walkway, or an access route leading to the resi dence, no privacy interest is invaded.”). An implied invitation is generally presumed to exist absent evidence of an affirmative intent to exclude the public from the premises. See, e.g. , People v. Kozlowski , 505 N.E.2d 611,

2 See generally 1 Wayne R. LaFave, Search and Seizure § 2.3(f), at 600-03 (4th ed. 2004).- 14 - 612 (N.Y. 1987) (“Absent evidence of intent to exclude the public , the entryway to a person’s house offers implied permission to approach and knock on the front door.”); State v. Somfleth , 8 P.3d 221, 227 (Or. Ct. App. 2000) (“A homeowner can abrogate the presumption of implied consent to approach the front door by undertaking sufficient steps to exclude casual visitors from the front yard.”). Here, then, we must consider whether, under the totality of the circumstances, the Robinsons affirmatively intended to exclude me mbers of the public from their premises. See generally State v. Wyatt , 961 P.2d 653, 656 (Idaho Ct. App. 1998) (“The determination whether a particular citizen had a legi timate expectation of privacy de pends upon the unique facts of each

case. We therefore examine the citizen’s effort s to protect his own privacy from observation by the general public, taking into acco unt norms of social conduct and th e nature of the premises.”). Factors that may be particularly rele vant to this determination include, inter alia : (1) whether the homeowner has erected any physical barriers, such as gate s or fences, across the entrance to the property, and (2) whether the homeowner has posted signs, such as “no trespassing” or “private propert y” signs, indicating a desire to exclude the public from the premises. See, e.g. , State v. Christensen , 953 P.2d 583 (Idaho 1998) (no implied invitation to enter where the entrance to the driveway was obstructed by a closed ga te posted with a “no trespassing” sign); State v. Pacheo , 101 S.W.3d 913, 919 (Mo. Ct. App. 2003); State v. McIntyre , 860 P.2d 299, 301 (Or. Ct. App. 1993) (“[C] ourts must consider all surrounding circumstances, including the existence of a fence, to determine the residents’ intent.”); State v. Ridgway , 790 P.2d 1263, 1265 (Wash. Ct. App. 1990) (holding that marijuana recovered from doorstep should have been suppressed because police observed the marijuana after walking around a closed gate and evading gua rd dogs while approaching house). Here, the Robinsons did not erect any physical barriers barring entry onto their property. There were no gates, fences, wire s, or highway cones indicating that members of the public were- 15 - not welcome to use the Robinsons’ driveway and front sidewalk in an effort to speak with the occupants of the premises. Nor did they post an y signs indicating that th e general public was not welcome to enter upon their property to approach th eir front door. Consideri ng the totality of the circumstances, we conclude that the Robinsons extended to the public an implied invitation to enter the driveway and front sidewalk of their premises.

b. Whether Cox Exceeded the Sc ope of the Implied Invitation Although we hold that the Robinsons extended an implied invitation to the public to enter their property and approach the front door, we mu st also consider whether Cox’s conduct on the night of the party exceeded the scope of that im plied invitation. Ultimately, whether the officer exceeded the scope of the implied invitation “ cannot be determined by a fixed formula,” but

must instead “be based on the facts and circ umstances of each case.” People v. Thompson , 270 Cal. Rptr. 863, 874 (Ct. App. 1990). 3 “[U]nder normal circumstances, un invited visitors coming to a residence to speak with an owner or resident are expected to come to th e residence’s most direct, obvious, and prominent entryway, which in most cases is the front door.” Trimble , 816 N.E.2d at 88. These visitors “are also expected to leave by the same route after knocking on the front door and receiving no response,” unless the “nature of the circumstances surrounding the visit” indi cates that the visitor “could reasonably be expected to seek out reside nts through areas other than the front door.” Id. Generally, “a substantial and unreasonable departure from the normal access route will exceed the scope of the implied invitati on and intrude upon a cons titutionally protected privacy interest.”

Clark , 859 P.2d at 350.

3 Relevant factors that have b een identified include “whether the officer (1) spied into the house; (2) acted secretly; (3) appr oached the house in daylight; (4) used the normal, most direct route to the house; (5) attempted to talk with the resident; (6) cr eated an artificial vantage point; and (7) made the discovery accidentally.” State v. Ross , 959 P.2d 1188, 1190 (Wash. Ct. App. 1998).- 16 - Also, an implied invitation to approach the fr ont door of a private residence is limited in scope to those persons who are on the property fo r a “legitimate social or business purpose.”

State v. Cloutier , 544 A.2d 1277, 1280 (Me. 1988). In the co ntext of law enforcement officers, officers who are located on the curtilage for th e purpose of approach ing the front door and questioning the residents of the house are deemed to be pursuing a “legitimate purpose.” See,

e.g. , Shaver , 30 Va. App. at 793, 794, 520 S.E.2d at 395, 396 (noting that “investigators intended to speak with the defendants” a nd that the investigators first “ knocked on the front door of the residence but no one answered”). 4 Although the implied invitation does permit officers to seek out the occupants of a residence in order to “investigate,” the scope of this invitation does not encompass the right to conduct a general search of the premises. See, e.g. , United States v. Bradshaw , 490 F.2d 1097, 1100 (4th Cir. 1974) (noting that the officer must have a legitimate purpose other than conducting “a search of such premises di rected against the accused”); see also Rogers v.

Pendleton , 249 F.3d 279, 288 (4th Cir. 2001); Alvarez v. Montgomery County , 147 F.3d 354, 358 (4th Cir. 1998). As noted by the Fourth Circuit, the right to “knock and talk,” th at is, to knock on a residence’s door or otherwise approach the re sidence seeking to speak to the inhabitants, [is] not the right to make a general investigation in the curtilage based on reasonable suspicion. A contrary rule would eviscerate the principle of Oliver and Dunn that the curtilage is entitled to the same level of F ourth Amendment protection as the home itself.

4 See also United States v. Hammett , 236 F.3d 1054, 1059 (9th Cir. 2001) (“Law enforcement officers may encroach upon the cu rtilage of a home fo r the purpose of asking questions of the occupants. ”); United States v. James , 40 F.3d 850, 862 (7th Cir. 1994) (finding that police did not violate the Fourth Amendment where they used a walkway, which was part of the curtilage of the home, “[i]n their attempt to re ach the lower floor reside nts”); United States v. Daoust , 916 F.2d 757, 758 (1st Cir. 1990) (noting th at a “policeman may lawfully go to a person’s home to interview him”).- 17 - Rogers , 249 F.3d at 289. A police officer exceeds the legi timate scope of an implied invitation if he seeks to “convert[] this limited license to do what any citizen may do—approach the house and speak to the inhabitant or owner—into a license to search for ‘evidence.’” Id. at 294. Thus, if a law enforcement officer, in an attempt to unc over illicit activity, strays from the “path” that is impliedly open to the public, he has exceeded the scope of the implied invitation and, as a result, violated the Fourth Amendment. Similarly, entering the property late at night, especially if accompanied by the use of subterfuge, may exceed the scope of the im plied invitation. As noted by one court, Furtive intrusion late at night or in the predaw n hours is not conduct that is expected from or dinary visitors. Indeed, if observed by a resident of the premis es, it could be a cause for great alarm. As compared to open da ytime approaches, surreptitious searches under the cover of darkness create a greater risk of armed response—with potentia lly tragic results—fro m fearful residents who may mistake the police offi cers for criminal intruders. Cada , 923 P.2d at 478; see also Griffin v. State , 67 S.W.3d 582, 587 (Ark. 2002) (“‘[T]here is no rule of private or public conduct which makes it illegal per se , or a condemned invasion of the person’s right of privacy, for anyone openly and peaceably, at high noon , to walk up the steps and knock on the front door of any man’s castle with the honest intent of asking questions of the occupant thereof whether the questioner be a pollster, a sa lesman, or an officer of the law.’” (internal quotations omitted) (emphasis added) (quoting Davis v. United States , 327 F.2d 301, 303 (9th Cir. 1964))); Brown v. State , 392 So. 2d 280, 284 (Fla. Dist. Ct. App. 1980) (finding that police violated defendant’s reasonable expectation of privacy when they entered defendant’s driveway without a warrant at 1:45 a.m. and arrested him); Cloutier , 544 A.2d at 1280 (noting that “the implied invitation extends only to recognized access routes . . . and to reasonable times of day ” (emphasis added)); State v. Myers , 815 P.2d 761, 769 (Wash. 1991) (noting that whether- 18 - a police officer enters a premises during the daylight hours is rele vant in determining whether the scope of an implied invitation to enter premises has been exceeded). Also, although law enforcement officers who “enter areas of the curtilage which are impliedly open” to the public are “free to keep their eyes ope n,” State v. Seagull , 632 P.2d 44, 47 (Wash. 1981), an officer who implements an overly intrusive means of inve stigation, such as the use of binoculars or other sensory-enhancing devices, may exceed the scope of the implied

invitation. See Cada , 923 P.2d at 477 (“The scope of the implie d invitation to enter areas of the curtilage that provide direct access to the house . . . may be exceeded where officers employ a particularly intrusive met hod of viewing.”); Cloutier , 544 A.2d at 1280 (holding that the defendant had no reasonable expectation of privacy in a marijuana plant where, inter alia , the officer “detected the contraband by m eans of his natural senses”). But cf. State v. Lee , 633 P.2d 48, 51 (Utah 1981) (“[T]he use of a fl ashlight to assist the natural vision at night does not make an ‘observation’ a ‘search.’”). Here, considering the totality of the circumstances, we conc lude that Cox did not exceed the scope of the implied invita tion to enter the premises and approach the front door of the Robinsons’ home. Cox entered the driveway, began to drive toward the residence, and, before he reached the area of the driveway where the front walk intersects with the driveway, he saw the minors drinking in the Robinsons’ backyard. At that point, Cox had gone no further than any member of the public would have gone in an atte mpt to contact the owners of the property. He did not stray from the “path” lead ing directly from the road to th e front door (i.e., the driveway and the front sidewalk), nor did he attempt to conduct a general search of the premises through use of an overly intrusive means of investigation. Also, although Cox entered the curtilage of the Robinsons’ home at 11:00 p.m., a late hour of the evening, this entry did not necessari ly exceed the scope of the implied invitation.- 19 - “Under some circumstances, the mere fact that th e intrusion was made late at night may be a factor suggesting th at the police conduc t was unduly intrusiv e.” State v. Morris , 961 P.2d 653, 657 n.3 (Idaho Ct. App. 1998). Here, however, the lights along the Robinsons’ front sidewalk and the lights on the front porch were still turned on. Also, multiple cars were parked along the driveway and on the public road in front of the house. These f actors give rise to a reasonable inference that the implied invitation to approach the front door of the residence had not yet been rescinded for the night. 5 Also, we note that Cox drove up the driveway with his headlights turned on—the same way that any member of the general public would presumably have approached the house—rather than using subterfuge or the “cover of darkness” in an attempt to disguise his approach. Compare Cada , 923 P.2d at 478 (officers exceeded scope of implied invitation where they engaged in a “clandestine intrusion . . . under cover of darkness in the dead of night”), with Clark , 859 P.2d at 346 (officers did not exceed scope of implied invitation where

the officers went to the front door of the reside nce at 10:00 p.m. to investigate a neighbor’s complaint about a loud party). 6 Considering the totality of the circumstances, we conclude that, on the night in question, the imp lied invitation to enter the Robinsons’ premises was still open

5 This inference is supported by the fact that various members of the public had, in fact, approached the residence and “crashed” the party on the night in question.

6 See also Morris , 961 P.2d at 657 n.3 (noting that the “l ate hour” was “not such a factor in this case,” reasoning that “[i]f the investig ation had been delayed until the next day, the [subject of the investigation] might have been gone”); Ross , 959 P.2d at 1191 (finding that the officers exceeded the scope of an implied invitation where “the o fficers arrived in an unmarked car, in plain clothes, after midni ght, and made no attempt to cont act [the defendant] or otherwise notify him of their presence”).- 20 - even at this late hour, and Cox did not exceed the scope of this implied invitation when he drove up the Robinsons’ driveway. Moreover, Cox entered the curtilage of the Robinsons’ home w ith the purpose of investigating reports of underage drinking at the residence. “[T]he investigation of an anonymous tip is clearly legitimate police activity so long as the investig ation does not violate applicable constitutional provisions.” Divello v. State , 782 N.E.2d 433, 437-38 (Ind. Ct. App. 2003). Because Cox entered the premises to “inv estigate,” he had a legitimate purpose for being present on the Robinsons’ driveway at th e time he viewed the illicit activity. Also, we do not accept the Robinsons’ argument that Cox’s subjective intent indicates that the entry exceeded the scope of the implie d invitation. Generally, the determination of

whether a Fourth Amendment violation has occurre d is based on “‘an objective assessment of the

officer’s actions . . . and not on the officer’s st ate of mind at the time the challenged action was taken.’” Limonja v. Commonwealth , 8 Va. App. 532, 538, 383 S.E.2d 476, 480 (1989) ( en banc ) (quoting Maryland v. Macon , 472 U.S. 463, 470-71 (1985)). Although cases from other jurisdictions have inquired into the officer’s subjective intent, we note that, in each of those cases, the officer’s intent only became relevant if the officer exceeded the ordinary scope of the implied invitation by, for example, invading other areas of the curtilage after attempting a “knock and talk.” See, e.g. , Estate of Smith v. Marasco , 318 F.3d 497, 520-21 (3d. Cir. 2003) (remanding qualified immunity case for further factual determinations where the officers knocked on the front door, the defendant failed to answer, and the offi cers then entered the backyard of the residence); Alvarez , 147 F.3d at 357 (inquiring into officer’s subjective purpose for entering the backyard where the officers, who were investigating an underage drinking party, approached the front door, noticed a sign that sa id “Party in Back,” and then went to the backyard to “speak with the party’s host”).- 21 - Without expressly adopting or rejecting the rationa le of these cases, we note that they are distinguishable because, here, Cox had not yet pe rformed a “knock and talk,” nor had he invaded any area of the curtilage beyond the “path” to the front door. Rather, when Cox viewed the illicit activity, he had not yet finished driving up the dr iveway. Under the circumstances of this case, then, there is no additional intrusion into the cu rtilage that would necessitate an inquiry into Cox’s subjective intent. Cf. McIntyre , 860 P.2d at 302 (holding that “[t]he trial court’s reliance on the officers’ investigative purpose was mispla ced” because “‘[c]riminal investigation is as legitimate a societal purpose as is census taking or mail delivery’” (quoting Corbett , 516 P.2d at 490) (second alteration in original)). Considering the totality of the circumstances , we therefore conclude that the Robinsons extended an implied invitation to the public to ente r their driveway on the ni ght of the party. We further conclude that, when Cox entered the cu rtilage with the purpose of “investigating” the allegations of underage drinking, he did not exceed the scope of this implied invitation because, at the point in time when he vi ewed the illicit activity, he had gone no further than an ordinary member of the public would have gone in an at tempt to contact the o ccupants of the property. Accordingly, because the Robinsons extended an implied invitation to enter the property, and because Cox did not exceed the scope of that invitation, the Robinsons had no reasonable expectation of privacy in the area of the driveway by the bus h, and Cox’s actions neither implicated nor violated the Fourth Amendment.

C. Because the Fourth Amendment Does Not Apply, The Evidence Is Admissible

The Robinsons submit that the trial court erred in its legal co nclusion that Cox’s observations were admissible pursuant to the pl ain view exception to the warrant requirement. 7

7 In order for a search to come within the plain view exception, tw o requirements must be met: “(a) the officer must be lawfully in a posit ion to view and seize th e item, [and] (b) it must be immediately apparent to the officer that th e item is evidence of a crime, contraband, or- 22 - However, we need not reach the issue of whether the plain view exception applies because Cox’s presence in the Robinsons’ driveway did not imp licate the Fourth Amendment. Rather, because the illicit conduct was clearly visible from an area in which the Robinsons had no reasonable expectation of privacy, the plain view doctrine applies, and the observations are admissible. That is, because the Robinsons had extended an implied invitation to the public to use the driveway to access the front door of their home, they had no reasonable expectation of privacy in

that area. See Clark , 859 P.2d at 349 (“There is an implied invitation for the public to use access

routes to the house . . . and there can be no reason able expectation of priv acy as to observations which can be made from such areas.”); Divello , 782 N.E.2d at 437 (“[A]n individual does not have a reasonable expectation of privacy with regard to things or activities within a residence that may be observed by persons using their natural senses from places impliedly open to a visitor’s entry.”). And, because the Robinsons had no reasonable expectation of privacy in the illicit activities that were clearly visible from their driveway, the F ourth Amendment does not apply to any observations made by a police o fficer who was present in the driveway and complying with the terms of that implied invitation. See Illinois v. Andreas , 463 U.S. 765, 771 (1983) (“If the inspection by po lice does not intrude upon a legiti mate expectation of privacy, there is no ‘search’ subject to the Warrant Clause.”); see also Clark , 859 P.2d at 348 (“[A] policeman’s mere observation from a vantage point that does not infringe upon a privacy interest, of something open to public view, normally implicates no Fourth Amendment constraints because observation of items readily vi sible to the public is not a ‘search.’”); State v.

Harris , 919 S.W.2d 619, 624 (Tenn. Crim. App. 1995) (“What an officer sees from a vantage point along the walkway between the public road a nd the front door is not protected by [] the

otherwise subject to seizur e.” Hamlin v. Commonwealth , 33 Va. App. 494, 502, 534 S.E.2d 363, 367 (2000) (citations omitted), aff’d on reh’g en banc , 35 Va. App. 373, 545 S.E.2d 556 (2001).- 23 - Fourth Amendment . . . .”). Because the F ourth Amendment does not apply, no warrant is required and, therefore, no exception to the warrant requirement is needed. See generally

Commonwealth v. Carelli , 546 A.2d 1185 (Pa. Super. Ct. 1988) (“Because there is no search,

there is no need for an exception to permit admission of testimony relating to the observation.” (emphasis in original)). Because Cox’s obser vations do not implicate the Fourth Amendment, those observations are admissible in their entirety.

III. CONCLUSION We hold that, under the facts of this case, the ar ea of the driveway next to the bush is part of the curtilage of the Robins ons’ home. We further hold, however, that the area was not protected by the Fourth Amendment because th e Robinsons had no reasonable expectation of privacy in that area of the cu rtilage. Rather, because the Robinsons extended an implied invitation to members of the public to enter the porti on of driveway before the walkway to the front door, Cox’s presence on the driveway di d not implicate the Fourth Amendment and, therefore, did not constitute an illegal search. Because Cox’s observations did not implicate the Fourth Amendment, the trial court properly de nied the Robinsons’ motions to suppress. Accordingly, we affirm the convictions.

Affirmed.- 24 - Annunziata, J., dissenting. I concur in the majority’s finding that Offi cer Cox entered the curtilage of the Robinson

residence and that he conducte d the challenged search from that vantage point. I write separately, however, because I do not agree that the search can be found constitutionally proper on the theory that the Robinsons had imp liedly invited Officer Cox’s entry, thereby extinguishing any reasonable expe ctation of privacy they had in the curtilage. Cox’s sole and undisputed purpose for entering the curtilage was to search for criminal activity. Consistent with the guarantees of the United States Constitution, it cannot be said that citizens impliedly extend an invitation to the police to enter their home or curtilage to conduct a search. On that ground, I

would hold that Cox violated the Robinsons ’ rights under the Fourth Amendment. “Curtilage” is defined as the “space necessary and c onvenient, habitually used for family purposes and the carrying on of domestic employment; the yard, garden or field which is near to

and used in connection with the dwelling.” Wellford v. Commonwealth , 227 Va. 297, 302, 315 S.E.2d 235, 238 (1984) (internal citations omitted). The doctrine of curtilage is gr ounded in the peculiarly strong concepts of intimacy, personal au tonomy and privacy associated with the home. The home is fundamentally a sanctuary, where personal concepts of self a nd family are forged, where relationships are nurtured and wh ere people normally feel free to express themselves in intimat e ways. The potent individual privacy interests that inhere in living within a home expand into the areas that enclose the home as well. The backyard and area immediately surrounding the home ar e really extensions of the dwelling itself. This is not true simply in a mechanical sense because the areas are geographically proximate. It is true because people have both actual and reasona ble expectations that many of the private experiences of home lif e often occur outside the house. Personal interactions, daily routines and intimate relationships revolve around the entire home place. There are compelling- 25 - reasons, then, for applying Fourth Amendment protection to the entire dwelling area. Dow Chemical Co. v. United States , 749 F.2d 307, 314 (6th Cir. 1984), aff’d , 476 U.S. 227 (1986). Determining what constitutes curtilage is root ed in the specific facts of each case.

Jefferson v. Commonwealth , 27 Va. App. 1, 16, 497 S.E.2d 474, 481 (1998). In determining whether the area in question const itutes curtilage, “particular re ference” to the following four factors is helpful: the proximity of the area claime d to be curtilage to the home, whether the area is included w ithin an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to prot ect the area from observation by people passing by.

United States v. Dunn , 480 U.S. 294, 301 (1987); see Jefferson , 27 Va. App. at 16, 497 S.E.2d at

481. Although the area in question was no t enclosed by gate or fence, I concur that the place in the Robinsons’ driveway from which Cox gath ered the challenged evidence was within the curtilage. 8 Cox was located in close proximity to the house and in an area hidden from public

8 The testimonial and photographic evidence re veal that a large bush, when viewed from the street, stands immediately in front of th e walkway to the front door that intersects the driveway. The bush and walkway are but a few f eet in front of the garage. Cox testified repeatedly that he was next to this bush in the driveway when he first saw the juveniles on the other side of the tree. Closer scrutiny of Cox’s testimony reveal s that, after driving his vehicle into the driveway, he continued moving down the driveway up to and past the bush that shielded the garage doors and the sidewalk leading to th e front door from public view. According to his testimony, Cox was continuing his investigation into the curtilage as th e nature of his observations and their implications of criminal activity became clearer. At one point in his testimony, th e following exchange took place: Q: And as you proceeded up the driveway further and further, the first thing you saw was [sic] pers ons who appeared to you to be young.- 26 - view by an island of dense tree growth and a large bush just beyond. See Dunn , 480 U.S. at 301;

cf. Shaver v. Commonwealth , 30 Va. App. 789, 797, 520 S.E.2d 393, 397 (1999) (holding that

A: Yes, sir. Q: Strike that. The first thing you saw was some activity.

A: Correct. Q: And you kept moving. You never stopped.

A: That’s correct. Q: The second thing you saw was a couple of people that appeared to you to be underage; okay? A: Yes, sir. Q: And at or about the same ti me, you saw something in their - - you saw long necked glass - - whit e glass bottles in their hand. A: Clear; yes, sir. Q: And then you were some distance - - A: Still, yes. Q: And you kept on going? A: Yes, sir. Q: And you kept on going because, alt hough they appeared to be young and it might have been beer, your experience told you that you wouldn’t know for sure until they ran when they saw you. A: Not necessarily; when they - - I di dn’t know what they were going to do. I wanted to identify them, to find out whattheir age was, and to see if it was alcohol. Q: And you weren’t able to do that from a distance. But when they dropped whatever it was, you could s ee the label; is that right?

A: That’s correct. Q: And they scattered. And that, in your mind, was telling.- 27 - defendants had no reasonable expectation of priv acy in an area that was not restricted from public view by means of a fence, shrubbery, or othe r barrier). In addition, the area was used for unloading groceries and washing cars, activities that are home-related and that evidence the

“nature of the uses to wh ich the area is put.” Dunn , 480 U.S. at 301; see Vanessa Rownaghi, Driving Into Unreasonableness: The Driveway, the Curtilage, and Reasonable Expectations of Privacy , 11 Am. U.J. Gender Soc. Pol’y & L. 1165, 1181-82 (2003) (explaining that in addition to application of the Dunn factors, the essential inquiry that remains in determining what areas deserve Fourth Amendment protection is “whetherthe area harbors ‘intim ate activity associated with the sanctity of a man’s home and the pr ivacies of life’” (quoting Boyd v. United States , 116 U.S. 616, 630 (1886))). However, Cox’s presence upon and search from the curtilage notwithstanding, the majority concludes that the Robinsons did not ha ve a reasonable expectation of privacy in the area because Cox had an implied invitation to ap proach the house and ta lk to its occupants. 9 I

A: Yes, sir. Q: Before that, it was maybe . After that, it was probable. A: Yes, sir. This exchange demonstrates that Cox conduc ted a search into th e driveway with his vehicle, continuing forward until he reached the bush that hides part of the driveway, the garage and the sidewalk to the front door, and proceed ing until the alleged juve niles dropped the beer and scattered. Such conduct goes beyond the implied invitation that any citi zen has to enter the driveway and approach the front door.

9 The majority reasons that the police had an implied invitation to approach the Robinsons’ front door because, in order to gain a ccess to the door, they, li ke any visitor, would have to enter the curtilage and cross the area fr om which Cox observed individuals he believed to be juveniles drinking beer. Therefore, acco rding to the majority, no Fourth Amendment violation occurred.- 28 - disagree, not with the general pr inciple underlying the conclusion, but with its applicability here

under these facts and circumstances.

In Shaver , we addressed the theory of implied invi tation, stating that “‘[i]n the course of urban life, we have come to expect various memb ers of the public to en ter upon such a driveway, e.g., brush salesmen, newspaper boys, postmen, Gi rl Scout cookie sellers, distressed motorists, neighbors, friends.’” 30 Va. App. at 796, 520 S.E.2d at 397 (quoting State v. Corbett , 516 P.2d 487, 490 (Or. Ct. App. 1973)). The implied invitati on theory permitting entry into the curtilage of a home has been discussed and applied, either expressly or impliedly, in case law from several other jurisdictions. See, e.g. , In re Gregory S. , 169 Cal. Rptr. 540, 546 (Cal. Ct. App. 1980) (noting that resident has minimal, if any, exp ectation of privacy in ar ea where public has been implicitly invited); State v. Cada , 923 P.2d 469, 477 (Idaho Ct. App. 1996) (noting that “the direct access routes to the house, including park ing areas, driveways and pathways to the entry, are areas to which the public is impliedly invited, and that police officers restricting their activity to such areas are permitted the same intrusion and the same level of observation as would be expected from a ‘reasonably respectful citizen’”); State v. Cloutier , 544 A.2d 1277, 1280 (Me. 1988) (noting that “the owner impliedly invites to intrude upon his or her property only those with a legitimate social or bus iness purpose”); People v. Kozlowski , 505 N.E.2d 611, 612 (N.Y. 1987) (holding that, “[a]bsent eviden ce of intent to exclude the pub lic, the entryway to a person’s house offers implied permission to approach and knock on the front door”). Therefore, an

officer of the law does not violate the Fourth Amendment if, in entering private property, the officer does nothing more than what a reas onably respectful c itizen would do. See State v. Dyreson , 17 P.3d 668, 710 (Wash. Ct. App. 2001); Me i Fung So, Annotation, Search and Seizure: Reasonable Expecta tion of Privacy in Driveways , 60 A.L.R. 5th 1 § 2a (1998 and Supp. 2004).- 29 - It follows that, where the evidence establishe s the police have entered the curtilage of a home without a warrant for the purpose of speaki ng to an occupant of the home, the entry is generally upheld. See, e.g. , Shaver , 30 Va. App. at 793-94, 520 S.E.2d at 395 (noting that “investigators intended to speak with the defendants”); Alvarez v. Montgomery County , 147 F.3d 354, 358 (4th Cir. 1998) (upholding officers’ entry into the curtilage where they had a “‘legitimate reason’ for entering the Alvarezes’ property ‘unconnected with a search of such premises’ (quoting United States v. Bradshaw , 490 F.2d 1097, 1100 (4th Cir.1974))); United

States v. James , 40 F.3d 850, 862 (7th Cir. 1994) (finding that police did not violate the Fourth Amendment where they used a walkway, which was part of the curtilage of the home, “[i]n their attempt to reach the lower floor re sidents”); United States v. Daoust , 916 F.2d 757, 758 (1st Cir. 1990) (finding that police did not violate the Fourth Amendment where they observed a firearm through a kitchen window while attempting to contact the defendant homeowner and holding that a “policeman may lawfully go to a pe rson’s home to interview him”); Kozlowski , 505 N.E.2d at 612 (noting that the “the officer walk ed up the driveway and onto an open-ended porch [and that h]e opened the screen door in orde r to knock on the front door”); see generally Griffin

v. State , 67 S.W.3d 582, 587 (Ark. 2002) (sta ting that “‘there is no rule of private or public conduct which makes it illegal per se, or a condemn ed invasion of the person’s right of privacy, for anyone openly and peaceably, at high noon, to wa lk up the steps and knock on the front door of any man’s castle with the honest intent of as king questions of the occupant thereof whether the questioner be a pollster, a sa lesman, or an officer of the law’” (some internal quotations omitted) (quoting Davis v. United States , 327 F.2d 301, 303 (9th Cir. 1964))). That said, this case is manife stly not one that comes with in the umbrella of implied invitation decisions. Cox made no attempt whatsoev er to approach or kn ock on the front door of- 30 - the Robinsons’ home and speak to the occupant s, nor did he testify to any such intent. 10 Indeed, as discussed below, his testimony established that he was there to conduct a search. Thus, the theory of implied invitation upon which the majority relies for its rationale remains just that: a theoretical proposition of what C ox could have done, but not what he, in fact, did. The judicial decisions that invoke the implie d invitation exception to the F ourth Amendment’s requirement that a search be conducted pursuan t to a warrant do not turn on such an abstract or hypothetical application of principles , wholly unmoored from the facts of th e case. Absent an examination of the evidence showing the purpose underlying the police intrusion into constitutionally protected property, a court cannot determine whether the entry complied with constitutional mandates. As noted in Rogers v. Pendleton , 249 F.3d 279, 289 (4th Cir. 2001), pol ice officers have no right to enter upon curtilage to make an investigation based on reasonabl e suspicion. Instead, the right police officers have is the right to “knock and talk,” th at is, to knock on a residence’s door or otherwise approach the re sidence seeking to speak to the inhabitants, not the right to make a general investigation in the curtilage based on reasonable suspicion. A contrary rule would eviscerate the principle of Oliver and Dunn that the curtilage is entitled to the same level of F ourth Amendment protection as the home itself.

10 When asked repeatedly if he entered the R obinsons’ driveway with the intent to speak to an occupant of the house, the following exchange ensued: Q: Officer Cox, isn’t it true that it was not your intent to walk to the front door and knock on it, as you proceeded up that driveway that night? A: My intent when I drove up the driveway was to establish probable cause, to inves tigate the scene further. Furthermore, the evidence establishes that, consis tent with his intent to “investigate the scene,” Cox drove directly up the driveway until he came to a point where he could observe what he expected to find: juveniles in the act of drinking beer. See discussion supranote 8.- 31 - Id. 11 The Fourth Circuit underscored the same principle in Bradshaw , 490 F.2d at 1100, noting, after considering all the evidence bearing on the question, that an incursion into the curtilage of a rural home to speak to the o ccupants was lawful when “ unconnected with a search of such premises directed against the accused .” Id. at 1104 (emphasis added). 12 These cases demonstrate the importance of di stinguishing between a police officer’s right by implied invitation to “knock and talk,” that is, to knock on a residenc e’s door or otherwise approach the residence by implied invitation seek ing to speak to the i nhabitants, and a police officer’s attempt to make a gene ral investigation in the curtilag e based on reasonable suspicion. Failing to make the distinction, as the Rogers court warned, would unconstitutionally “convert[] this limited license to do what any citizen may do—approach the house and speak to the

inhabitant or owner—into a license to search for ‘evidence.’” Rogers , 249 F.3d at 294. An officer’s purpose in entering the curtilage is thus a critical f actor in determining whether police intrusion on privat e property falls within the prope rty owner’s implied invitation to the public. See, e.g. , id. at 289; Alvarez , 147 F.3d at 358; Bradshaw , 490 F.2d at 1100; see

also Estate of Smith v. Marasco , 318 F.3d 497, 520 (3d Cir. 2003) (“ Where officers are pursuing

11 In Rogers , the officer encountered the defendant homeowner in the front yard of his house. 249 F.3d at 284. The officer testified that after speaking with th e defendant, who asked him to leave, the officer wanted to sp eak with someone “who was sober.” Id. The officer then informed the defendant that he intended to conduct a search of the premises. Id. The court found these facts sufficient to show that the office r’s intention was to sear ch for evidence rather than to contact another homeowner. Id. at 287-90. Thus, any intrusion into the curtilage violated the Fourth Amendment’s protections. Id.

12 In Bradshaw , the court held that the officer s ubsequently exceeded the “legitimate reason” for his visit when, without legally sufficient justification, he searched a vehicle near the residence. Id. at 1101. The court found that the office r’s intent to conduct a search was evidenced by the fact that while en route to the back door to speak with the occupant of the house, the officer strayed from his path to peer into the crack between the closed doors of a nearby parked vehicle. Id. This detour made clear that the officer’s intent was no longer to seek to speak with the defendant. Id.- 32 - a lawful objective, unconnected to any search for the frui ts and instrumentalities of criminal activity , their entry into the curtilage after not rece iving an answer at the front door might be reasonable as entry into the cu rtilage may provide the only prac ticable way of attempting to contact the resident . . . .” (emphasi s added)); United States v. Hammett , 236 F.3d 1054, 1059 (9th Cir. 2001) (“Law enforcement officers may encroach upon the curtilage of a home for the purpose of asking questions of the occupants .” (emphasis added)); Daoust , 916 F.2d at 758 (“A policeman may lawfully go to a person’s home to interview him .” (emphasis added)); cf. Lo-Ji

Sales v. New York , 442 U.S. 319, 329 (1979) (rejecting the st ate’s argument that store owners had no legitimate expectation of privacy in the it ems for sale in their store because “there is no basis for the notion that, because a retail store inv ites the public to enter, it consents to wholesale

searches and seizures that do not conform to Fourth Amendment guarantees”); see generally

Lewis v. United States , 385 U.S. 206, 211 (1966) (explaining that undercover agents, “in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant” but that when entry is gained by invitation “an agent is [not] aut horized to conduct a general search for incriminating materials” (emphasis added)). The majority dismisses the import of these cases on the ground that Fourth Amendment inquiries are typically based on “‘ an objective assessment of the o fficer’s actions . . . and not on

the officer’s state of mind at the time the challenged act ion was taken.’” Limonja v.

Commonwealth , 8 Va. App. 532, 538, 383 S.E.2d 476, 480 (1989) (en banc) (quoting Maryland

v. Macon , 472 U.S. 463, 470-71 (1985)). While the pr inciple is sound, it has no applicability in cases involving a homeowner’s implied invitation to enter constitutionally protected property to contact the occupants of the home and, it appears, the principle has not been applied in such cases. Indeed, the very colloquialism used to re fer to the exception, vi z., “knock and talk,”- 33 - signifies subjective purpose as the effective analytic al principle. Entry in to the curtilage without a warrant to search is wholly incompatib le with Fourth Amendment jurisprudence, 13 and judicial

13 The majority cites only two cases in support of its contention that an examination of the purpose underlying a police officer’s entry onto th e curtilage of private property is improper: Marasco , 318 F.3d 497, and Alvarez , 147 F.3d 354. A close reading of these cases establishes that neither supports the majority’s conclusions. To the contrary, both deci sions are rooted in an examination of the evidence establishing the poli ce officer’s subjective intent in entering the curtilage. The court in Marasco found that where the police offi cers approached and knocked on the defendant’s front door, and then telephoned his residence from the front door in an attempt to contact him, it was clear that the officers’ purpose was to speak to the occupants in response to a complaint the police had received. Marasco , 318 F.3d at 520. Noting the lawfulness of that purpose, the Third Circuit then addressed whether, having received no answer to the knock at the front door, it was reasonable for the police to proc eed to the backyard of the house and enter the garage. In reversing the trial court’s grant of summary judgment , the Third Circuit determined that “there remain questions of fact as to whet her the officers’ intrusion into the curtilage was reasonable in light of their asserted purpose in making their entry into Smith’s property which was not to make a search .” Id. at 521 (emphasis added). Th e court emphasized that, to be lawful, the police objective must be “unconn ected to any search for the fruits and instrumentalities of criminal activity.” Id. at 520. Similarly, in Alvarez , the Fourth Circuit emphasized that the officers entered the Alvarezes’ property “ simply to notify the homeowner or the pa rty's host about the complaint and to ask that no one drive while intoxicated.” Alvarez , 147 F.3d at 358-59 (emphasis added). In reaching its decision, the court cited, with approv al, other cases standing for the proposition that the purpose for which an officer enters the cu rtilage is a paramount consideration. Id. That consideration persists wh ether the court must determine the pr opriety of the initial intrusion by implied invitation or whether it must determine the lawfulness of intrusions beyond the front door of the house. The latter analysis is lik ewise predicated on the reasonableness of the intrusions beyond the front door, examined in light of the officer’s or iginal purpose, viz, to interview the occupants

. In short, both cases stand for the proposition that entry into curtilage must be independent from any intent or purpose on the part of the police to conduct a general search for evidence of criminal conduct. Logically, whether the purpose of an intrusion into curtilage is unconnected to a search for evidence necessarily involves an ex amination of the officer’s subjective intent, as established by the testimony or the evidence of police conduct presented. See supra notes 11-12 (demonstrating that courts determine the purpose of an intrusion into curtilage by examining evidence of officers’ subjective intent). Consistent with the theory that an offi cer’s purpose, or subjective intent, is a determinative factor in assessing reasonablenes s is the requirement applied by other Circuit Courts of Appeals that an officer act in “ good faith” before moving from the front door to contact an occupant of a house. See, e.g. , Hammett , 236 F.3d at 1060 (“[A police officer] may, in good faith, move away from the front door when seeking to contact th e occupants.”); United States v. Raines , 243 F.3d 419, 421 (8th Cir. 2001) (holding that sheriff did not interfere with defendant’s “privacy interest when he, in good fait h, went unimpeded to the [rear of the home] to contact the occupants”). “Good faith” is defined, inter alia , as “[a] state of mind consisting in- 34 - validation of such a result under the aegis of an implied invitation rationale, applied in the abstract as suggested by the majority, “eviscerate[s] the principle of Oliver and Dunn that the curtilage is entitled to the same level of F ourth Amendment protection as the home itself.” Rogers , 249 F.3d at 289. In the instant case, not only is there no evid ence that Cox was in the Robinsons’ curtilage in order to go to their front door and speak to the occupants of the hous e, Cox’s testimony makes

clear that he entered the Robins ons’ property in order to find evidence of a crime, viz., to surprise juveniles in the incriminating act of drinking beer and confirm his suspicion that the Robinsons were hosting an underage drinking party. 14 Under the facts of this case, it cannot be said that Cox’s purpose was “unc onnected with a search.” See Alvarez , 147 F.3d at 358;

Bradshaw , 490 F.2d at 1100. I would therefore hold thatCox’s entry into the curtilage violated the Robinsons’ reasonable expectation of privacy and their rights under the Fourth Amendment

to the United States Constitution.

I would further hold that Cox’s observations of criminal activit y from his vantage point in the curtilage were not admissible pursuant to th e plain view doctrine because, as discussed above, Cox’s entry into the curtilage of the Robinsons’ home was not lawful. See Hamlin v.

Commonwealth , 33 Va. App. 494, 502, 534 S.E.2d 363, 367 (2000) (finding that in order for a search to come within the plain view exception, tw o requirements must be met: “‘(a) the officer

. . . honesty in belief or pur pose.” Black’s Law Dictionary 713 (8th ed. 2004). Thus, the case law clearly recognizes and requi res an inquiry into an officer’s subjective purpose for being on the curtilage of a home.

14 Cox testified that he “planned to enter th e property to investigate the allegations of underage consumption of alcohol.” In addition, wh en asked if he was “looking for a reaction of people scattering to confirm [his] suspicion th at [he] had an underage drinking party,” Cox responded affirmatively.- 35 - must be lawfully in a position to view and se ize the item, [and] (b) it must be immediately apparent to the officer that the item is evidence of a crime, contraband, or otherwise subject to seizure’” (citations omitted)), aff’d en banc , 35 Va. App. 373, 545 S.E.2d 556 (2001). Cox was not lawfully in a position to view the minors consuming alcohol. See id. Therefore, the trial court’s admission of Cox’s observations of juveniles drinking beer, which he made as a result of his illegal entry, cannot be affirmed on the ground that the evidence was in plain view. For the reasons stated, I respectfully dissent.