                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Millette
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                                               MEMORANDUM OPINION * BY
v.     Record No. 2594-07-2                                      JUDGE LARRY G. ELDER
                                                                    MARCH 11, 2008
DAVID KURNARD HACKETT


              FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
                            J. Peyton Farmer, Judge Designate

                 Craig W. Stallard, Assistant Attorney General (Robert F. McDonnell,
                 Attorney General, on briefs), for appellant.

                 Patricia Kelly (Woodbridge, Ventura & Kelly, P.C., on brief), for
                 appellee.


       David Kurnard Hackett (defendant) stands indicted for possession of a controlled

substance with intent to distribute. Pursuant to Code § 19.2-398, the Commonwealth appeals a

pretrial ruling granting defendant’s motion to suppress the evidence upon which he was indicted

for possessing a controlled substance, which police obtained after viewing what they believed

was an illegal drug transaction that occurred on defendant’s property. This appeal raises two

issues: the first, raised sua sponte by this Court, is whether the Commonwealth’s failure to

comply with the certification requirement of Code § 19.2-400 represented a jurisdictional defect

requiring dismissal of the appeal; and the second, raised by the Commonwealth, concerns

whether the trial court’s ruling suppressing the evidence was erroneous. We hold the failure to

make the certification required by the statute is not a jurisdictional defect and that the trial

court’s ruling suppressing the evidence was not error. Thus, we affirm the granting of the

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
motion and remand for additional proceedings consistent with this opinion if the Commonwealth

be so advised.

                                                    I.

                                                    A.

                        STATUTORY CERTIFICATION REQUIREMENT
                         FOR AN APPEAL BY THE COMMONWEALTH

       Two different statutory provisions reference the requirement of a certification by the

Commonwealth in the context of pre-trial appeals. Code § 19.2-398 provides:

                       A. In a felony case a pretrial appeal from a circuit court
                 may be taken by the Commonwealth from:

                        *       *       *       *         *     *       *

                          2. An order of a circuit court prohibiting the use of certain
                 evidence at trial on the grounds such evidence was obtained in
                 violation of the provisions of the Fourth, Fifth or Sixth
                 Amendments to the Constitution of the United States or Article I,
                 Section 8, 10 or 11 of the Constitution of Virginia prohibiting
                 illegal searches and seizures and protecting rights against
                 self-incrimination, provided the Commonwealth certifies that the
                 appeal is not taken for purpose of delay and that the evidence is
                 substantial proof of a fact material in the proceeding.

(Emphasis added). Code § 19.2-400 contains similar certification language, providing:

                 No appeal shall be allowed the Commonwealth pursuant to
                 subsection A of § 19.2-398 unless within seven days after entry of
                 the order of the circuit court from which the appeal is taken, and
                 before a jury is impaneled and sworn if there is to be trial by jury
                 or, in cases to be tried without a jury, before the court begins to
                 hear or receive evidence or the first witness is sworn, whichever
                 occurs first, the Commonwealth files a notice of appeal with the
                 clerk of the trial court. If the appeal relates to suppressed
                 evidence, the attorney for the Commonwealth shall certify in the
                 notice of appeal that the appeal is not taken for the purpose of
                 delay and that the evidence is substantial proof of a fact material




                                                    -2-
                to the proceeding. All other requirements related to the notice of
                appeal shall be governed by Part Five A of the Rules of the
                Supreme Court.

(Emphasis added).

        We have previously held that, because Code § 19.2-398 “‘is in derogation of the general

constitutional prohibition against appeals by the Commonwealth[,] . . . [i]t “must be strictly

construed against the state and limited in application to cases clearly falling within the language

of the statute.”’” Commonwealth v. Thomas, 23 Va. App. 598, 607, 478 S.E.2d 715, 719 (1996)

(quoting Commonwealth v. Hawkins, 10 Va. App. 41, 44, 390 S.E.2d 3, 5 (1990) (citations

omitted)). Nevertheless, we have concluded Code § 19.2-398 does not permit us to review for

accuracy the certification required therein and to dismiss for want of jurisdiction any

Commonwealth appeal for which we conclude the evidence suppressed is not “essential to the

prosecution.” Id. at 608-09, 478 S.E.2d at 719-20 (decided under a prior version of Code

§ 19.2-398, which included the language, “provided the Commonwealth certifies the evidence is

essential to the prosecution”). Instead, we have held the prosecutor’s certification pursuant to

Code § 19.2-398 “is not reviewable on appeal.” Id. at 609, 478 S.E.2d at 720. Similarly, here,

we hold that the absence of that certification is not fatal to our acquisition of jurisdiction.

        The Supreme Court “[has] repeatedly held,” in both the civil and criminal context, “‘that

the use of “shall,” in a statute requiring action by a public official, is directory and not mandatory

unless the statute manifests a contrary intent.’” Butler v. Commonwealth, 264 Va. 614, 619, 570

S.E.2d 813, 816 (2002) (quoting Jamborsky v. Baskins, 247 Va. 506, 511, 442 S.E.2d 636, 638

(1994)); see also Nelms v. Vaughan, 84 Va. 696, 699-700, 5 S.E. 704, 705-06 (1888). “‘[A]

statute may be mandatory in some respects, and directory in others.’” Ladd v. Lamb, 195 Va.

1031, 1035, 81 S.E.2d 756, 759 (1954) (quoting 82 C.J.S. Statutes § 374, at 868 (1953)).




                                                 -3-
        Code § 19.2-400 contains both language that is mandatory and language that is directory.

The statute contains mandatory language that “[n]o appeal shall be allowed . . . pursuant to . . .

[§ 19.2-398(A)] unless within seven days after entry of the order . . . , the Commonwealth files a

notice of appeal with the clerk of the trial court.” Code § 19.2-400 (emphasis added); cf.

Johnson v. Commonwealth, 1 Va. App. 510, 511-12, 339 S.E.2d 919, 920 (1986) (holding

language in Rule 5A:6 providing, inter alia, that “No appeal shall be allowed unless, within 30

days after entry of final judgment . . . counsel files with the clerk of the trial court a notice of

appeal,” sets out a time limit that is jurisdictional); Riner v. Commonwealth, 40 Va. App. 440,

454, 579 S.E.2d 671, 678 (2003) (holding timely filing of petition for appeal and timely filing of

notice of appeal under Rule 5A:3 are jurisdictional), aff’d on other grounds, 268 Va. 296, 601

S.E.2d 555 (2004). However, we hold the language in Code § 19.2-400 stating what the notice

of appeal “shall” contain, along with almost identical language in § 19.2-398, is directory only.

See Riner, 40 Va. App. at 454, 579 S.E.2d at 678 (holding that although timely filing of a

petition for appeal under Rule 5A:3 is jurisdictional, “the provisions of Rule 5A:12(c) stating

what the petition ‘shall contain’ . . . are not jurisdictional” and that the Court may consider

“assignments of error added to the petition, with leave of court, at a later date”). Thus, the

Commonwealth’s failure to file the certification described in Code §§ 19.2-398 and -400 is not

jurisdictional. 1


        1
           We conclude only that the timely filing of the certification is not jurisdictional. We
need not decide whether the Commonwealth’s failure to correct this deficiency after receiving
notice of such failure might provide a non-jurisdictional basis for dismissal of an appeal because
defendant has not moved for a dismissal on these grounds. Cf. Riner, 40 Va. App. at 454, 579
S.E.2d at 678 (in context of holding that Rule 5A:12’s requirements for contents of petition for
appeal are not jurisdictional, concluding that “‘we do not minimize the necessity of adherence to
the . . . Rule[s] by members of the bar’” and that “[a] petitioner who fails to include one or more
issues in his petition for appeal and subsequently asks the Court for leave to enlarge the petition
acts at his peril because the Court is not compelled to grant such leave” (quoting Johnson, 1
Va. App. at 513, 339 S.E.2d at 921)); United States v. Hatfield, 365 F.3d 332, 337-38 (4th Cir.
2004) (under federal statute containing similar certification language, holding that in the case of
                                                 -4-
        Persuasive authority supports this result. In holding in Thomas, 23 Va. App. at 608-09,

478 S.E.2d at 720, that the Court was not permitted under an earlier version of Code § 19.2-398

to review the certification for accuracy, we concluded that in order to interpret the certification

language, we may look to federal case law interpreting a similar federal statute. The

corresponding federal statute, 18 U.S.C. § 3731, contains certification language very similar to

that in Virginia’s statutes, expressly authorizing an appeal “‘of a district court order suppressing

or excluding evidence . . . if the United States attorney certifies to the district court that the

appeal is not taken for purposes of delay and that the evidence is a substantial proof of a fact

material to the proceeding.’” United States v. Hatfield, 365 F.3d 332, 337 (4th Cir. 2004). The

United States Circuit Courts of Appeals, including our own Fourth Circuit, agree “that the

certification requirement [in the federal statute] is not jurisdictional.” Id.; see also In re Grand

Jury Subpoena, 175 F.3d 332, 337 (4th Cir. 1999).

        Accordingly, we proceed to address the merits of the appeal.

                                                   B.

              MOTION TO SUPPRESS ON FOURTH AMENDMENT GROUNDS

        In reviewing the trial court’s ruling on a motion to suppress, “‘“[w]e are bound by the

trial court’s findings of historical fact unless ‘plainly wrong’ or without evidence to support

them,” [and] we review de novo the trial court’s application of legal standards . . . to the

particular facts of the case.’” Robinson v. Commonwealth, 47 Va. App. 533, 544, 625 S.E.2d

651, 656 (2006) (en banc) (quoting 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))), aff’d, 273 Va. 26, 44, 639 S.E.2d 217, 227 (2007); see



the delayed filing of a certificate, “an appellate court may, within its discretion, hear the case
despite the irregularity” and setting out factors to be assessed in determining whether to grant the
defendant’s motion to dismiss the appeal based on the late filing).
                                                  -5-
Logan v. Commonwealth, 46 Va. App. 213, 219, 616 S.E.2d 744, 747 (2005) (holding ultimate

conclusion regarding whether reasonable expectation of privacy exists is reviewed de novo).

       At a hearing on a defendant’s motion to suppress evidence allegedly obtained in violation

of the Fourth Amendment, the defendant has the burden of proving he had a reasonable

expectation of privacy in the place searched, Barnes v. Commonwealth, 234 Va. 130, 135, 360

S.E.2d 196, 200 (1987) (citing Rakas v. Illinois, 439 U.S. 128, 131 n.1, 99 S. Ct. 421, 424 n.1, 58

L.Ed.2d 387, 393 n.1 (1978)), and the Commonwealth has the burden of proving that the relevant

search or seizure did not violate the defendant’s Fourth Amendment rights, Simmons v.

Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989); Alexander v. Commonwealth,

19 Va. App. 671, 674, 454 S.E.2d 39, 41 (1995). “Absent clear evidence to the contrary in the

record, the judgment of a trial court comes to us on appeal with a presumption that the law was

correctly applied to the facts,” Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d

286, 291 (1977), and the appellant bears the burden of showing that the trial court’s 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)).

       “The United States Supreme Court long has held that ‘the curtilage area immediately

surrounding a private house’ is ‘a place where the occupants have a reasonable and legitimate

expectation of privacy that society is prepared to accept.’” Johnson v. Commonwealth, 26

Va. App. 674, 684, 496 S.E.2d 143, 148 (1998) (quoting Dow Chem. Co. v. United States, 476

U.S. 227, 235, 106 S. Ct. 1819, 1825, 90 L. Ed. 2d 226, 235 (1986)).

               “[T]he extent of the curtilage is determined by factors that bear
               upon whether an individual reasonably may expect that the area in
               question should be treated as the home itself.” When government
               agents conduct a search or seizure within protected areas of a
               dwelling without a warrant such actions are presumptively
               unreasonable and unlawful unless they are supported by both
               probable cause and exigent circumstances.

                                               -6-
Robinson, 273 Va. at 34, 639 S.E.2d at 221 (quoting United States v. Dunn, 480 U.S. 294, 300,

107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326, 334 (1987)). Because it is undisputed Detective Reed

lacked probable cause to enter onto defendant’s property prior to observing the hand-to-hand

transaction, we must determine whether the evidence supported the trial court’s ruling that the

area Detective Reed entered was constitutionally protected as part of the home’s curtilage.

       The United States Supreme Court has held that contemporary

               curtilage questions should be resolved with particular reference to
               four factors: the proximity of the area claimed to be curtilage to
               the home, whether the area is included within an enclosure
               surrounding the home, the nature of the uses to which the area is
               put, and the steps taken by the resident to protect the area from
               observation by people passing by.

Dunn, 480 U.S. at 301, 107 S. Ct. at 1139, 94 L. Ed. 2d at 334-35; see also Wellford v.

Commonwealth, 227 Va. 297, 302-03, 315 S.E.2d 235, 238 (1984) (recognizing that “‘the

curtilage includes the cluster of buildings constituting the habitation or dwelling place, whether

enclosed with an inner fence or not’” (quoting Bare v. Commonwealth, 122 Va. 783, 794, 94

S.E. 168, 172 (1917))). We have recognized that “‘[p]eople commonly have different

expectations . . . 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, patio or deck.’” Shaver v. Commonwealth, 30 Va. App.

789, 796, 520 S.E.2d 389, 397 (1999) (quoting State v. Corbett, 516 P.2d 487, 490 (Or. 1973)).

“[W]hether [the individual] ‘could reasonably assert control or supervision over, or exclude

others from access to, the place’” is also a relevant factor, Johnson, 26 Va. App. at 685, 496

S.E.2d at 148 (quoting United States v. Nuesca, 945 F.2d 254, 259 (9th Cir. 1991)), but the

presence or absence of a property interest is not dispositive, Oliver v. United States, 466 U.S.

170, 183, 104 S. Ct. 1735, 1743-44, 80 L. Ed. 2d 214, 227 (1984); see Minnesota v. Carter, 525

U.S. 83, 89, 119 S. Ct. 469, 473, 142 L. Ed. 2d 373, 379-80 (1998) (recognizing overnight
                                                -7-
houseguest may have legitimate expectation of privacy in the home of another). The relevant

decisions do “not suggest that combining these factors produces a finely tuned formula” but

rather that “these factors are useful analytical tools” for analyzing “the centrally relevant

consideration—whether the area in question 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, 107 S. Ct. at 1139-40, 94 L. Ed. 2d at 335.

       Here, the evidence supported the conclusions that the portions of defendant’s backyard at

issue were areas within the curtilage of the home in which he had a reasonable expectation of

privacy at the time of the events at issue. The evidence also supported the conclusion that

Detective Reed was able to see the hand-to-hand transaction within the curtilage only because he

himself intruded into the curtilage by climbing the fence and that the Commonwealth failed to

prove Detective Reed’s presence there did not violate defendant’s Fourth Amendment rights.

       Defendant’s home was located at the end of a dead-end street. Although the home was

adjacent to the fairgrounds, an industrial park, and a church, it was separated from each of those

properties by a fence. The presence of the fence separating defendant’s property from the

property of the fairgrounds provided defendant with the reasonable expectation that the fence,

whether or not it belonged to him, would exclude anyone on fairgrounds property from coming

closer to his home than the fence would allow. Further, although Detective Reed testified he did

not know precisely where the property line lay between defendant’s home and the adjacent

fairgrounds, he also testified that the fence he climbed “runs . . . right down the edge of the

Mayfield subdivision” and that, after he climbed the fence and walked along the fence line for an

undisclosed distance, he was “within six or seven feet of [defendant’s] house,” between the fence

and the house. (Emphases added). It was from that location, six or seven feet from defendant’s

house, that Detective Reed was able to see defendant and the informant engage in the

                                                -8-
hand-to-hand transaction “across the yard” “on the opposite side,” about twenty-five feet away

from Reed.

       The evidence, viewed in the light most favorable to defendant, also supported the

inference that the hand-to-hand transaction that occurred behind defendant’s residence after

5:45 p.m. on February 8, 2007, was not visible from either the fairgrounds property at the side

rear of the residence or the public street in front of the residence. No evidence established what

type of fencing surrounded the fairgrounds or whether the area was lighted on the evening in

question, and the trial court was entitled to draw the reasonable inference that if Detective Reed

had been able to see defendant’s backyard clearly from the fairgrounds property, he would not

have needed to scale the fence and walk along the fence line for an undisclosed distance in order

to conduct his surveillance. Also, although the evidence established two other detectives were

involved in the surveillance and that all three proceeded to defendant’s house when the informant

did, no one other than Detective Reed testified that he or she was able to view the location in

defendant’s yard where the transaction took place from a vantage point other than the one

Detective Reed occupied inside the curtilage.

       Thus, the evidence, viewed in the light most favorable to defendant, supported the trial

court’s conclusion that the hand-to-hand transaction occurred within the curtilage of defendant’s

home and that Detective Reed, also inside the curtilage, was not in a place from which he could

legitimately view that transaction for purposes of the Fourth Amendment. Compare Jefferson v.

Commonwealth, 27 Va. App. 1, 17, 497 S.E.2d 474, 482 (1998) (concluding appellant had

reasonable expectation of privacy in the place of his arrest because “the proximity of the place

where [the officer] arrested appellant was extremely close to appellant’s house and could not be

viewed by pedestrians and drivers passing in front of the house”), with Robinson, 47 Va. App. at

549-53, 625 S.E.2d at 658-59 (holding appellants lacked reasonable expectation of privacy in

                                                -9-
activity observed by police officers legitimately in their driveway and on their front walk

because they had impliedly consented to having members of the public in these areas), and

Shaver, 30 Va. App. at 793, 797, 520 S.E.2d at 395, 397 (holding appellant lacked an expectation

of privacy in the stolen ATV located in a driveway that was wholly visible from the road and that

the presence of officers in this publicly accessible part of the curtilage to view the stolen ATV

more closely did not implicate the Fourth Amendment). Accordingly, the trial court’s decision

to grant the motion to suppress was not error.

                                                  II.

       For these reasons, we hold the failure to make the certification required by the statute is

not a jurisdictional defect and that the trial court’s ruling suppressing the evidence was not error.

Thus, we affirm the granting of the motion and remand for additional proceedings consistent

with this opinion if the Commonwealth be so advised.

                                                                            Affirmed and remanded.




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