                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Beales and Senior Judge Frank
UNPUBLISHED


              Argued by teleconference


              COMMONWEALTH OF VIRGINIA

              v.     Record No. 0849-19-2

              ERIC TREMAINE WILLIAMS, JR.                                    MEMORANDUM OPINION* BY
                                                                             JUDGE RANDOLPH A. BEALES
              COMMONWEALTH OF VIRGINIA                                            OCTOBER 29, 2019

              v.     Record No. 0850-19-2

              DONNA CAROL WILLIAMS


                                   FROM THE CIRCUIT COURT OF NEW KENT COUNTY
                                               B. Elliott Bondurant, Judge

                               Kelsey M. Bulger, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on briefs) for appellant.

                               Martin Mooradian for appellee Eric Tremaine Williams, Jr.

                               No brief or argument for appellee Donna Carol Williams.


                     In these Commonwealth’s appeals, the circuit court granted the defendants’ motions to

              suppress testimony regarding the defendants’ actions toward law enforcement officers based on a

              finding that the defendants’ arrest violated the Fourth Amendment of the United States Constitution.

              Subsequent to granting the motions to suppress, the circuit court – over the objections of the

              attorney for the Commonwealth – dismissed the indictments against the defendants. The

              Commonwealth now appeals.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                         I. BACKGROUND

       In an appeal by the Commonwealth of an order of the circuit court suppressing evidence,

we must view the evidence in the light most favorable to the defendant, as the party that

prevailed below, and the circuit court’s “findings of fact are entitled to a presumption of

correctness unless they are plainly wrong or without evidence to support them.” Commonwealth

v. Peterson, 15 Va. App. 486, 487 (1992).

       So viewed, the evidence shows that on September 13, 2018, at approximately 9:00 p.m.,

Sergeant Wyatt Johnston of the New Kent County Sheriff’s Office arrived at the house of James

Riggs in response to a complaint of loud music coming from the neighbor’s residence. Sergeant

Johnston testified that, when he arrived at Riggs’s house, he “[c]ould hear loud music coming

from behind the garage at the Williams residence.” Riggs’s property was partially separated

from the Williams property by trees and brush, but Sergeant Johnston testified, “You could see

through it.”

       Sergeant Johnston testified that, while he was standing in a carport on Riggs’s property,

which was approximately fifty yards away from the Williamses’ garage, Johnston could see a

truck behind the Williamses’ garage, and saw defendant-appellee Eric Williams (“Eric”) “around

the truck . . . walking back and forth and making profane comments towards Mr. Riggs’[s]

property.” After some time, the music from the Williams household stopped, and Sergeant

Johnston heard “what sounded like a Weed Eater start up” and run for a period of time, followed

by a chain saw that ran for a period of time. Sergeant Johnston then observed defendant-appellee

Donna Williams (“Donna”) – Eric’s mother – move the truck to the front of the garage, and

twice observed Eric “reaching in towards the floorboard of the truck, at which time the engine

was revving up.” Sergeant Johnston testified he felt Eric was performing these actions “to

basically harass Mr. Riggs.”

                                                -2-
        Sergeant Johnston and Deputy Sheriff Hargis decided to issue a summons to Eric for

violation of New Kent County Code § 46-124, the New Kent County noise ordinance. After

being on Riggs’s property for thirty to forty-five minutes, both officers walked through the trees

that separated the properties, taking “[k]ind of a straight shot from the carport area of

Mr. Riggs’[s] residence to the front of the Williams garage where the truck was.” Sergeant

Johnston testified that, as the officers came through the trees, Eric said, “Come get some,

bitches!” The officers walked up on the driveway to the area in front of the garage. The garage

was separated from the main house by about twenty or thirty yards. Deputy Hargis explained to

Eric and Donna that he was going to issue a summons to Eric, and Donna responded, “Just come

tell us to stop.”

        Another deputy sheriff, Deputy McNew, arrived and remained with Sergeant Johnston

near the Williams garage while Deputy Hargis took Eric’s driver’s license back to Riggs’s

property to write the summons for Eric. Sergeant Johnston testified that during this time, Eric

was drinking a beer and “yelling, cursing, arguing” with the officers, including “ma[king] several

threats towards us, calling us names.” Sergeant Johnston further testified that “[a]fter the

multitude of threats, the cursing, the belligerentness,” he decided to arrest Eric for public

intoxication. Sergeant Johnston testified, “As I placed my hands on him and told him he was

under arrest, Ms. Williams then came between us, [and] began saying we weren’t going to take

him anywhere and started pushing me.” This led to Donna, Sergeant Johnston, another deputy

sheriff, and Eric “all four of us kind of grabbing” one another in a scuffle. Sergeant Johnston

then decided to arrest Donna for felony assault of a law enforcement officer and misdemeanor

obstruction of justice. Ultimately, both Eric and Donna were arrested.

        Eric was indicted for felony assault of a law enforcement officer in violation of Code

§ 18.2-57(C) and misdemeanor obstructing justice in violation of Code § 18.2-460. Donna was

                                                -3-
indicted for felony assault and battery of a law enforcement officer and misdemeanor obstructing

justice, also in violation of Code § 18.2-57(C) and § 18.2-460 respectively. Prior to trial, Eric

and Donna filed motions to suppress “the interaction between the New Kent County Sheriff’s

Office and defendant[s] on September 13, 2018 and all evidence arising out of the contacts,”

arguing that the officers improperly arrested the defendant-appellees within the Williamses’

curtilage without a warrant or exigent circumstances to justify their entering the Williams

property.

       At the hearing on the defendants’ motions to suppress, the trial judge stated:

               It’s well settled that there are three ways in which a law
               enforcement officer may legally enter the private residence of
               another: one, by the authority of a lawful warrant, but we don’t
               have a warrant here. Two, consent by someone authorized to give
               consent or someone who has the apparent authority to give
               consent; and then three is the existence of exigent circumstances.

The trial judge apparently relied upon the route by which the officers entered the Williams

property, saying, “There’s no expectation that a visitor is going to walk through a tree line from

an adjoining property owner. If they had come up the main driveway and observed these things,

that would have been one thing, but that’s not what they did.” The trial judge concluded, “I find

that the Fourth Amendment has been violated and I’m going to grant the motion [to suppress].”

The attorney for the Commonwealth argued that the use of the exclusionary rule was

inappropriate here, and the trial judge replied, “I’ve already granted the motion to suppress,

Ms. Burroughs [Deputy Commonwealth’s Attorney], so at this point in time these matters are

dismissed.” The attorney for the Commonwealth asked “if we could pass this to a different date

so the Commonwealth can explore its options for an interlocutory appeal on this. I would ask the

case not be dismissed.” The trial judge replied, “I’ve granted the motion, Ms. Burroughs, and

I’m going to dismiss the matters. You all can note your appeal.”



                                                -4-
                                            II. ANALYSIS

       On appeal, the Commonwealth notes two assignments of error.1 First, it argues,

“Williams’s motion to suppress should not have been granted.” Second, it argues, “Even if the

motion to suppress was properly granted, dismissal of the case against Williams in its entirety

was not the proper remedy.”

       On appeal, a defendant’s claim of a violation of the Fourth Amendment presents a mixed

question of law and fact that an appellate court must review de novo. Commonwealth v.

Robertson, 275 Va. 559, 563 (2008). In making this determination, “an appellate court must give

deference to the factual findings of the circuit court and give due weight to the inferences drawn

from those factual findings; however, the appellate court must determine independently whether

the manner in which the evidence was obtained meets the requirements of the Fourth

Amendment.” Id.

                                         Motion to Suppress

       “[I]t is a ‘settled rule that warrantless arrests in public places are valid,’ but, absent

another exception such as exigent circumstances, officers may not enter a home to make an arrest

without a warrant, even when they have probable cause.” Collins v. Virginia, 138 S. Ct. 1663,

1672 (2018) (quoting Payton v. New York, 445 U.S. 573, 587-90 (1980)). The curtilage of a

home is regarded as “part of the home itself for Fourth Amendment purposes.” Florida v.

Jardines, 569 U.S. 1, 6 (2013) (quoting Oliver v. United States, 466 U.S. 170, 180 (1984)).

       Assuming without deciding that the officers’ crossing through the trees to get to the

Williamses’ property through their curtilage constituted a violation of the Fourth Amendment,

the circuit court nevertheless erred in granting the motions to suppress. Regardless of whether


       1
          In both cases now before us, the Commonwealth’s assignments of error are identical,
and the Commonwealth’s arguments and analysis in its opening briefs for both cases are nearly
identical.
                                              -5-
the officers properly entered onto the Williams property, Eric’s actions and Donna’s actions after

the officers were on their property constituted independent, intervening illegal acts against the

officers that should not have been suppressed. This Court’s decision in Brown v. City of

Danville, 44 Va. App. 586 (2004), is directly on point.

       In Brown, the trial court granted a motion to suppress evidence pertaining to Brown’s

charge of possession of cocaine based on the trial court’s finding that the search of Brown was

an improper search under the Fourth Amendment.2 However, the trial court rejected Brown’s

argument that it could not consider the evidence pertaining to his resisting and struggling with

the officer who conducted the improper search. On appeal, this Court affirmed Brown’s

conviction for obstructing justice, concluding, “The exclusionary rule does not, as Brown

suggests, extend further and also prohibit testimony describing the defendant’s own illegal

actions following an unlawful search or seizure.” Id. at 599. This Court held, “[I]f a person

engages in new and distinct criminal acts in response to unlawful police conduct, the

exclusionary rule does not apply, and evidence of the events constituting the new criminal

activity, including testimony describing the defendant’s own actions, is admissible.”3 Id. at 600.



       2
         The trial court’s decision in Brown to grant the motion to suppress was not at issue on
the appeal to this Court. Brown, 44 Va. App. at 595 n.2.
       3
          In support of its holding, this Court in Brown stated, “Application of the exclusionary
rule in such fashion . . . would in effect give the victims of illegal searches a license to assault
and murder the officers involved – a result manifestly unacceptable.” Id. at 600 (quoting
Napageak v. State, 729 P.2d 893, 895 n.2 (Alaska Ct. App. 1986)). In addition,

               extending the fruits doctrine to immunize a defendant from arrest
               for new crimes gives a defendant an intolerable carte blanche to
               commit further criminal acts so long as they are sufficiently
               connected to the chain of causation started by the police
               misconduct. This result is too far reaching and too high a price for
               society to pay in order to deter police misconduct.

Id. at 602 (quoting United States v. Bailey, 691 F.2d 1009, 1017 (11th Cir. 1982)).
                                               -6-
       This principle from Brown applies to the matters that are the subject of these appeals.

Therefore, we do not need to even reach the question of whether the path by which the officers

walked onto the Williams property violated the Fourth Amendment.4 That is because both Eric

and Donna engaged in intervening illegal behavior against the officers once they were on the

Williams property that is not subject to the exclusionary rule. Sergeant Johnston testified that

Eric “made several threats towards” the officers, including saying, “Come get some, bitches” as

the officers were arriving. Sergeant Johnston also stated that he decided to arrest Eric only

“[a]fter the multitude of threats, the cursing, the belligerentness” displayed by Eric. Sergeant

Johnston further testified that, when he placed his hands on Eric in order to arrest him, Donna

“came between us, began saying we weren’t going to take him anywhere and started pushing

me.” Donna’s pushing and shoving of the officers led to a scuffle involving her, Sergeant

Johnston, another deputy sheriff, and Eric.

       Both Eric’s threats and belligerence toward the officers as well as Donna’s assaulting and

battering of at least one of the officers constituted intervening criminal action resulting in

attenuation of any earlier Fourth Amendment violation. Just as in Brown, the exclusionary rule

does not apply to exclude evidence of these illegal actions by Eric and Donna, and “evidence of

the events constituting the new criminal activity, including testimony describing the

defendant[s’] own actions, is admissible.” 44 Va. App. at 600. In short, even assuming without

deciding that the officers walked onto the Williams property in a way that violated the Fourth



       4
          We do not reach whether the officers had authority to cross onto the Williams property
to give the Williamses a warning or a summons that they were violating the New Kent County
noise ordinance (New Kent County Code § 46-124), because an appellate court should decide
appeals “on the best and narrowest grounds available.” Commonwealth v. Swann, 290 Va. 194,
196 (2015) (quoting McGhee v. Commonwealth, 280 Va. 620, 626 n.4 (2010)). Given both
Donna and Eric’s independent intervening unlawful acts against the officers once they arrived on
the Williams property, such an analysis would not be the “best and narrowest grounds available”
for our decision.
                                               -7-
Amendment, the Williamses do not then have carte blanche to do anything they wish to the

officers such that evidence or testimony of those unlawful actions against the officers would then

be suppressed and excluded from evidence under the exclusionary rule.

                            The Circuit Court’s Dismissal of the Charges

        After granting the defendants’ motions to suppress, the circuit court “dismiss[ed] the

matters,” even after the Commonwealth requested to “explore its options for an interlocutory

appeal on this.” The circuit court erred in dismissing the charges as the Commonwealth made

clear that it was likely to exercise its statutory right to a pretrial appeal.5 See e.g.,

Commonwealth v. Lane, No. 0318-99-2, at *1 n.1 (Va. Ct. App. Aug. 3, 1999) (“After granting

the motion to suppress, the trial court dismissed the indictment. However, it lacked authority to

dismiss at that time.”). The Commonwealth is allowed by statute to seek a pretrial appeal when

the circuit court suppresses evidence based on its holding that there was a violation of the Fourth

Amendment, as the circuit court held here. See Code § 19.2-398(A)(2); Code § 19.2-400 (“Upon

the filing of a timely notice of appeal, the order from which the pretrial appeal is taken and

further trial proceedings in the circuit court, except for a bail hearing, shall thereby be suspended

pending disposition of the appeal.”); Commonwealth v. DeBusk, No. 0213-08-3, at *4

(Va. Ct. App. June 3, 2008) (“[T]he purpose of [Code § 19.2-400] is to prevent a circuit court

from defeating the ability of the Commonwealth to pursue its appeal once the appeal is properly




        5
         After the motion to suppress was granted by the trial court, the Commonwealth also
should have been permitted to decide whether to proceed to trial. Given the separation of powers
doctrine, see Va. Const. art. III, § 1, the judicial branch should not infringe upon the executive
branch’s decision (exercised by the Commonwealth’s Attorney) of whether even to take a
prosecution to trial. See United States v. Armstrong, 517 U.S. 456, 464 (1996); Wayte v. United
States, 470 U.S. 598, 607 (1985). See also Commonwealth v. Rosser, No. 0132-14-2, at *7
(Va. Ct. App. June 17, 2014); Commonwealth v. Ramsdell, No. 2925-06-3, at *3 (Va. Ct. App.
Apr. 20, 2007).
                                                   -8-
noted.” (quoting Commonwealth v. West, 16 Va. App. 679, 685 (1993))). It was, therefore, error

for the circuit court to dismiss the indictments.

                                          III. CONCLUSION

       In summary, even assuming without deciding that the officers’ way of entering onto the

Williams property violated the Fourth Amendment, the circuit court erred in suppressing the

evidence concerning the illegal actions then taken by Eric and Donna Williams that led to their

arrests. Eric’s belligerence and threats toward the officers from the moment of their arrival on

the Williams property, as well as Donna’s pushing, shoving, and subsequent scuffle with the

officers, were independent intervening criminal acts that should not have been excluded from

evidence under the exclusionary rule. Furthermore, the circuit court also erred in dismissing the

indictments against Eric and Donna Williams when the Commonwealth had the statutory right,

pursuant to Code § 19.2-398, to seek a pretrial appeal.

       For all of these reasons, we reverse the circuit court’s decisions granting the motion to

suppress and the motion to dismiss in each matter, and we remand for further proceedings at trial

consistent with this opinion.

                                                                          Reversed and remanded.




                                                    -9-
