©2011 Brian S. Batterton, Attorney, Legal & Liability Risk Management Institute (LLRMI.COM) Redmond v. Commonwealth of Virginia (Court of Appeals of Virginia, November 16th 2010)
On November 16, 2010, the Court of Appeals of Virginia decided Redmond v. Commonwealth of Virginia [i], a case in which one of the issues dealt with the use of subterfuge by a federal agent in order to gain entry into a private residence.
In Redmond, a Special Agent with the Bureau of Alcohol, Tobacco, and Firearms stationed in the Commonwealth of Virginia, received information that Redmond, a convicted felon, was in possession of firearms in his house. The agent learned that Redmond’s house was listed for sale with a particular real estate agent. The ATF agent contacted the real estate agent and pretended to express interest in the house. A short while later, he and a female investigator, posing as prospective home-buyers, went to the house with the real estate agent. The real estate agent let them into the house and gave them a tour of all three levels of the house. While in the house, the ATF agent observed several guns and ammunition. The agent then obtained a search warrant for the house and, in a subsequent search, seized several guns, ammunition and other evidence.
Redmond filed a motion to suppress the evidence arguing that the observations that formed the basis for the probable cause to obtain the search warrant (the agent’s observations while posing as home-buyers) were made in violation of the Fourth Amendment. However, the trial court denied the motion and Redmond was later convicted. He appealed the denial of the motion to suppress and his conviction to the Court of Appeals of Virginia.
On appeal, Redmond argued that that the ATF agent’s observations that were made as he and the investigator pretended to be home-buyers were illegal and thus the search warrant was not valid because the agents participated in illegal subterfuge.
The court of appeals first noted that
Before affording the exclusionary rule protections to a defendant, a court must determine whether, based on the totality of the circumstances, the defendant objectively had a reasonable expectation of privacy at the time and place of the disputed search. [ii] [internal citations and quotations omitted]
Further, quoting the United States Supreme Court in the Katz v. United States, the court stated
What a person knowingly exposes to the public, even in his own home…,is not a subject of Fourth Amendment protection. [iii]
After a review of the two rules above, the court of appeals then examined court precedent relevant to this case. First, the court examined the Lewis v. United States [iv], decided by the United States Supreme Court in 1966. In Lewis, federal agents posed as purchasers of illegal drugs and went into the defendant’s home where they purchased said drugs. The Supreme Court held
When, as here, the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried out in a store, a garage, a car, or on the street. A government agent, 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. [v]
Next, the court of appeals looked to precedent from other states since there was no Virginia case similar to the case at hand. First, the court examined the People v. Lucatero [vi], a case from California. In Lucatero, an undercover police officer posed as a homebuyer to gain entry into a home that was for sale. After observing evidence of a crime, the officer obtained a search warrant. Later, the defendant argued that the officer’s observations in his home as the officer posed as a homebuyer were illegal. The California court held
An investigating officer may pose as a potential buyer and enter a home under this misrepresentation, assuming the officer’s actions do not exceed the scope of the consent. The officer must act as a potential buyer and do nothing that would violate the homeowner’s legitimately held privacy expectations, as defined in the context of the homeowner’s general invitation to members of the public to view the interior of the home for purposes of marketing the home. [vii]
Further, in State v. Ferrari [viii], police officers in New Jersey, posing as home-buyers, went to a condominium for sale and expressed interest to the real estate agent. The officers then toured the condo and observed marijuana in plain view. The officer’s observations formed the basis for the search warrant. The defendant argued that the officer’s subterfuge constituted a violation of the Fourth Amendment. The New Jersey court held
The actions of the officers did not exceed what one would expect of a prospective purchaser…Their actions violated no reasonable expectation of privacy possessed by the defendant. [ix]
The Court of Appeals of Virginia, then analyzed Redmond in light of the aforementioned cases. First, the court noted that the agents accepted the offer to view Redmond’s home when they contacted his real estate agent. Second, there was no evidence that the agents made any representation to the real estate agent regarding the true reason that they wanted to see inside the house. Third, the ATF agent’s actions inside the property did not exceed what a person could expect out of a true prospective purchaser. In other words, the agents did not conduct a search of the home, but rather only looked at what was in plain view or in places that would be expected to be examined by prospective home purchasers. Lastly, the evidence that was observed by the agents was all located in plain view.
In light of the facts above, the Court of Appeals of Virginia held that the agents did not violate the Fourth Amendmentwhen they posed as prospective home buyers for the purposes of viewing the inside of a suspect’s home that was for sale.
NOTE: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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[i] 57 Va. App. 254; 701 S.E. 2d 81 (2010)
[ii] Id. at 261
[iii] Id. (quoting United States v. Katz, 389 U.S. 347, 351 (1967))
[iv] 385 U.S. 206 (1966)
[v] Id. at 261-262 (citing Lewis, 385 U.S. at 211)
[vi] 166 Cal. App. 4th 1110, 83 Cal. Rptr. 3d 364, 366 (Cal. Ct. App. 2008)
[vii] Id. at 262
[viii] 323 N.J. Super. 54, 731 A.2d 1225, 1226 (N.J. Super. Ct. App. Div. 1999)
[ix] Redmond, 257 Va. App. at 262