VIRGINIA:

 In the Supreme Court of Virginia held at the Supreme Court 

Building in the City of Richmond, on Friday, the 15th day of 

January, 2010. 

Michael Dwayne Vaughn, Appellant, 

 against Record No. 090856 

 Court of Appeals No. 2564-07-3 

Commonwealth of Virginia, Appellee. 

 Upon an appeal from a judgment rendered by the Court of 

Appeals of Virginia. 

Upon consideration of the record, briefs, and argument of 

counsel, the Court affirms the judgment of the Court of Appeals but 

vacates its opinion in part. 

The defendant, Michael Dwayne Vaughn, was convicted and 

sentenced in the Circuit Court of Henry County for grand larceny in 

violation of Code § 18.2-95. The Court of Appeals affirmed the 

circuit court's judgment. Vaughn v. Commonwealth, 53 Va. App. 643, 

653-54, 674 S.E.2d 558, 563 (2009). Vaughn asserts that the Court 

of Appeals erred by upholding the circuit court's denial of his 

motion to suppress the evidence seized during a warrantless search 

of the curtilage of his dwelling, specifically the backyard, and 

also any evidence derived from that search. Vaughn argues that the 

law enforcement officer who conducted the search was not lawfully 

in Vaughn's backyard because the officer proceeded beyond that area 

of the curtilage for which he had "implied consent" to enter. See

Robinson v. Commonwealth, 273 Va. 26, 34-35, 639 S.E.2d 217, 222 
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(2007). 

In an assignment of cross-error, the Commonwealth contends that 

the "Court of Appeals erred in failing to find Vaughn's challenge to 

the officer's authority to enter the yard procedurally defaulted 

pursuant to Rule 5A:18." The Commonwealth is correct. 

In Vaughn’s motion to suppress filed in the circuit court, he 

argued, inter alia, that the search of the property violated the 

Fourth Amendment because "[t]here were insufficient underlying facts 

and circumstances presented to the officers for there to have been 

probable cause to believe that there was evidence located at the 

property that was subject to seizure[, c]onfiscation of the 

allegedly stolen items cannot be justified under any 'plain view' 

doctrine where the discovery was anticipated[, and t]here were no 

exigent circumstances to justify the warrantless search of the 

property." While Vaughn did argue that the Fourth Amendment 

requirements for a warrantless search of a dwelling's curtilage, 

i.e., probable cause and exigent circumstances, see Robinson, 273 

Va. at 34, 639 S.E.2d at 221, were not met, Vaughn did not contest 

the lawfulness of the officer’s presence in his backyard where the 

stolen items were plainly in view, or cite any cases that dealt with 

the doctrine of implied consent. 

Thus, the Court of Appeals erred by addressing the implied 

consent doctrine and deciding whether the officer lawfully entered 

Vaughn's backyard. See Rule 5A:18 ("No ruling of the trial court 

. . . will be considered as a basis for reversal unless the 

objection was stated together with the grounds therefor at the time 
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of the ruling."); see also Rule 5:25. 

The Court therefore vacates that portion of the Court of 

Appeals' opinion deciding whether the officer lawfully entered 

Vaughn's backyard under the implied consent doctrine. The Court, 

however, affirms the Court of Appeals' judgment upholding Vaughn's 

conviction for grand larceny. 

This order shall be published in the Virginia Reports and shall 

be certified to the Court of Appeals of Virginia and the Circuit 

Court of Henry County. 

 A Copy, 

 Teste: 

Patricia L. Harrington, Clerk