Virginians with a driveway read this

On rehearing en banc, the Virginia Court of Appeals affirmed the convictions in Robinson v. Com., the case where the police officer noted a line of parked cars on and about the property as he drove up the defendants' driveway, and from there saw some teenagers drop their beer bottles and run away, which led him to discover that the defendants were giving alcoholic drinks to underaged persons.

Earlier, a three-judge panel had affirmed the convictions, in a split decision, with Senior Judge Annunziata dissenting. Judge Humphreys wrote the majority opinion for the en banc court, as he did for the panel. Judge Baumgardner, joined by Judge McClanahan, concurred in the result but indicated his view that the majority opinion is overbroad. Judge Elder concurred in part and dissented in part. Judge Benton wrote a separate dissent, and stated his agreement with Judge Elder's opinion and the earlier dissent by Senior Judge Annunziata.

The majority held that the officer did not violate the Fourth Amendment by driving up the driveway, and that once the officer saw the teenagers drop their beers and make a run for it, "his further intrusion onto the property was permissible pursuant to the exigent circumstances exception to the warrant requirement."

On the first issue, Judge Humphreys began with the general statement: "It is generally recognized that, absent any affirmative attempts to discourage trespassers, owners or possessors of private property impliedly consent to have members of the general public intrude upon certain, limited areas of their property." As a result, "areas of the curtilage that 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" and "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 areas of the curtilage associated with that 'path.'" This consent, in turn, extends to police officers, and "is generally presumed to exist absent evidence of an affirmative intent to exclude the public from the premises." Finding no such evidence, the Court noted that Mrs. Robinson "did not erect any physical barriers barring entry onto her property," nor "did she post any signs indicating that the public in general — or police officers in particular—were not welcome to enter the property and approach the front door." Regarding whether the officer had exceeded the implied consent to approach the front door, the Court concluded, "[h]e did not stray from the “path” leading directly from the road to the 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."

The Court also concluded, in the manner of U.S. v. Whren, that the officer's intentions as he drove up the driveway were irrelevant.

As for the exigent circumstances, the Court observed that the officer did not intrude beyond the path to the front door until after he had seen the underaged drinkers.