Poulson v. Commonwealth

PRESENT: All the Justices

ALLEN POULSON OPINION BY v. Record No. 240081 JUSTICE STEPHEN R. McCULLOUGH April 10, 2025 COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

Allen Poulson, who was ultimately convicted of driving under the influence, challenges

several aspects of his questioning and arrest on Fourth and Fifth Amendment grounds.

Specifically, he argues that he was in custody and, therefore, he should have been given Miranda

warnings. He further argues that the officers should have obtained an arrest warrant before he

was arrested on the curtilage of his home. Finding no error, we affirm the judgment of the Court

of Appeals.

BACKGROUND

On December 23, 2021, Police received a call about a maroon-colored pickup truck that

was stuck in a ditch. The caller observed the driver throw bottles from the truck. Shortly

thereafter, a caller identifying himself as Allen Poulson called emergency dispatch, stating that

everything was fine and there was no need for a law enforcement response. When State Trooper

Robert Flynn arrived at the scene, after midnight, the truck was gone. He could see tire marks in

the ditch and that a vehicle had struck a culvert, damaging it. There were also two beer bottles of

Michelob Ultra and one can of Natural Light or “Natty Light” on the ground.

Trooper Flynn drove to Poulson’s home, where he was joined by another state trooper

and two sheriff’s deputies from Accomack County. A total of four uniformed officers, driving

four marked police vehicles, were parked outside of Poulson’s home. The police vehicles were in the driveway and blocked it. Flynn observed a maroon pickup truck with front end damage on

the driver’s side and mud “consistent with [the] vehicle that had struck [the] ditch.” In the back

of the truck, Flynn noticed beer cans, including a Natural Light can. A porch light came on from

Poulson’s residence, and Poulson emerged wearing boxer shorts and a t-shirt. It was very cold

outside. Trooper Flynn’s body worn camera captured his exchange with Poulson.

Poulson, a police officer himself, explained that he had swerved to avoid a deer and

struck the culvert. Poulson’s speech was slurred, and his breath smelled of alcohol. It was

apparent to Trooper Flynn that Poulson was drunk. Flynn said to Poulson “you want to do me a

favor and go through some field sobriety real quick.” Poulson continued to speak with Flynn.

Poulson denied drinking before the crash. He admitted to drinking afterwards, stating that he

had consumed three or four beers and four or five shots. After a few more questions about his

drinking, Trooper Flynn then said, “[w]e’ll just go through a couple tests right here if you’ll be

cooperative for it.” Poulson agreed. Poulson was not handcuffed. Poulson asked if he could go

inside to change, and Flynn agreed. Flynn did not follow him inside. After putting on more

clothes, Poulson came back outside. Poulson produced a driver’s license, which he offered to

show to Trooper Flynn. Trooper Flynn asked Poulson to “step in front of my car for me, please.”

Poulson acquiesced. He attempted but failed to perform the field sobriety tests. Trooper Flynn

arrested him (and gave him Miranda warnings at that point). Poulson was eventually given a

blood alcohol test, which yielded a score well above the legal limit for driving.

Poulson was indicted in the Circuit Court of Accomack County on four charges: driving

while intoxicated, in violation of Code § 18.2-266; hit and run, in violation of Code § 46.2-894;

obstruction of justice, in violation of Code § 18.2-460(A); and illegal dumping on a highway, in

violation of Code § 33.2-802. Poulson filed a motion to suppress, arguing that he was seized

2 when police commanded him to perform field sobriety tests, and, therefore, police should have

given him Miranda warnings. He also argued that he was arrested in violation of the Fourth

Amendment because the seizure and the arrest occurred without a warrant or exigent

circumstances within the curtilage of his home. Poulson acknowledged that the officers initially

had a right to come onto the curtilage. However, he maintained that the initial consensual

encounter turned into an illegal seizure. The trial court denied the motion, reasoning that

Poulson voluntarily engaged with the officers and was not “coerced in any way.” Poulson

entered a conditional guilty plea to driving under the influence that allowed him to challenge his

seizure and arrest. The Commonwealth dismissed the other charges by nolle prosequi.

Poulson appealed to the Court of Appeals. That court affirmed the trial court’s judgment

in an unpublished opinion. Poulson next appealed to this Court.

ANALYSIS

I. THE RECORD SUPPORTS THE TRIAL COURT’S FACTUAL FINDING THAT THE ENCOUNTER BETWEEN POULSON AND THE POLICE WAS CONSENSUAL AND THAT POULSON WAS NOT SEIZED UNTIL HE WAS PLACED UNDER ARREST.

The first component of Poulson’s assignment of error is that the courts below “erred in

denying Appellant’s Motion to Suppress, specifically erring in finding that Appellant was not

seized on the curtilage of his home and in-custody, which would have required Miranda

warnings.” Poulson contends that while the encounter began as a consensual encounter, the

presence of four armed and uniformed police officers, as well as the statements and the tone of

voice employed by Trooper Flynn, transformed the encounter into a seizure.

The Fourth Amendment preserves “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.

“An assertion that a person was ‘seized,’ within the meaning of the Fourth Amendment, presents

3 a mixed question of law and fact that is reviewed de novo on appeal.” McCain v.

Commonwealth, 261 Va. 483, 489 (2001) (citation omitted). “In considering such questions,” we

are “required to give deference to the factual findings of the trial court.” Id. at 490.

A person has been “seized” by police within the meaning of the Fourth Amendment if,

considering the totality of the circumstances, “a reasonable person would believe that he was not

free to leave the scene of the encounter.” Id. at 490 (citing United States v. Mendenhall, 446

U.S. 544, 554 (1980)). Not all encounters between citizens and police officers constitute

seizures; “[o]nly when the officer, by means of physical force or show of authority, has in some

way restrained the liberty of a citizen may [a court] conclude that a ‘seizure’ has occurred.”

Mendenhall, 446 U.S. at 552 (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)).

The decision whether the encounter was consensual must be made based on the totality of

the circumstances. Harris v. Commonwealth, 266 Va. 28, 32 (2003).

Various factors have been identified as relevant in determining whether a seizure has occurred, including the threatening presence of a number of police officers, the display of weapons by officers, physical contact between an officer and a citizen, an officer’s language or tone of voice compelling compliance, the retention of documents requested by an officer, and whether a citizen was told that he or she was free to leave.

Id. at 32 (citation omitted).

Poulson contends that he was seized once Trooper Flynn issued what he characterizes as

commands that he should perform field sobriety tests. He also points to the presence of four

police vehicles and four uniformed officers on his property. We have reviewed the video footage

of the encounter, as well as the trial court record. The trial court concluded that the encounter

was voluntary until the point where Poulson was arrested. “The presence of consent is a factual

question to be determined by the trier of fact based on the totality of the circumstances, and we

4 reverse a trial court’s decision regarding the presence of consent only when it is plainly wrong.”

Hawkins v. Commonwealth, 65 Va. App. 101, 107 (2015) (citation omitted); see also

Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973) (consent to search “is a question of fact to

be determined from the totality of all the circumstances”); Flippo v. West Virginia, 528 U.S. 11,

15 (1999) (“the issue of consent is ordinarily a factual issue”). On this record, we cannot say that

the trial court was wrong. Poulson initiated the encounter when he emerged from his house and

engaged the officers in conversation. The overall discussion between Poulson and Trooper

Flynn was cordial rather than peremptory. Poulson was not handcuffed. When Poulson asked to

go inside to put on some clothes, Trooper Flynn agreed and did not follow him inside. Finally,

the questioning lasted about four minutes.

We further conclude that Miranda warnings were not required. “The safeguards required

by Miranda must be afforded to a suspect as soon as the police have restricted his freedom of

action to a ‘degree associated with formal arrest.’” Dixon v. Commonwealth, 270 Va. 34, 39

(2005) (quoting Berkemer v. McCarty, 468 U.S. 420, 440 (1984)). Some of the factors that

courts have considered in answering the question of whether a suspect is in custody include:

whether police were able to physically seize the suspect, whether the suspect was physically restrained, whether firearms were drawn, whether there was physical contact between police and the suspect, whether the suspect was confined in a police car, whether police told the suspect he or she was free to leave, whether police engaged in other incidents of formal arrest such as booking, whether friends or relatives of the suspect were present, and whether more than one officer was present.

Hasan v. Commonwealth, 276 Va. 674, 679-80 (2008) (citing 2 Wayne R. LaFave et al.,

Criminal Procedure § 6.6(f) (3d ed. 2007)).

“The Fourth Amendment proscribes unreasonable searches and seizures; it does not

proscribe voluntary cooperation.” Florida v. Bostick, 501 U.S. 429, 439 (1991). Poulson chose

5 to emerge from his home to interact with the police and he agreed to perform the field sobriety

tests. After Poulson consented to perform field sobriety tests, he went back inside his home

unescorted to put on more clothes. He was not patted down at any point. Until his arrest, he was

not handcuffed or restrained in a police vehicle. Viewing the testimony and the video of the

encounter does not indicate a restraint on Poulson’s freedom of action to a degree associated

with formal arrest. The trial court found that his interaction with the police was consensual, and,

applying the standard of review, we conclude that the Court of Appeals correctly affirmed the

trial court on these questions.

II. ONCE OFFICERS ARE LAWFULLY PRESENT IN THE HOME OR ON THE CURTILAGE, THEY CAN EFFECTUATE AN ARREST WITHOUT A WARRANT IF THE ARREST IS OTHERWISE PROPER.

The second component to Poulson’s assignment of error is that the trial court and the

Court of Appeals erred “in finding that the arrest on the curtilage of the property was lawful.”

Poulson posits that an arrest on the curtilage requires either a warrant or exigent circumstances.

Because police had neither, Poulson contends, his arrest was in violation of the Fourth

Amendment. According to Poulson, the right of law enforcement to be present (because of a

voluntary, consensual encounter) does not confer the right to arrest. We disagree. We conclude,

in accord with the overwhelming weight of authority, that when the officers are lawfully present

in the home or on the curtilage, and the arrest is otherwise proper, they may proceed to effect an

arrest without the additional step of obtaining an arrest warrant.

We apply a de novo standard of review in determining whether a person has been seized

or arrested in violation of the Fourth Amendment. McCain, 261 Va. at 489. We are bound,

however, by the trial court’s factual findings unless those findings are plainly wrong or

unsupported by the evidence. Malbrough v. Commonwealth, 275 Va. 163, 168-69 (2008).

6  Protection of the home, and the immediate extension of the home, the curtilage, is at the

heart of the Fourth Amendment. “[W]hen it comes to the Fourth Amendment, the home is first

among equals.” Florida v. Jardines, 569 U.S. 1, 6 (2013). “At the Amendment’s ‘very core’

stands ‘the right of a man to retreat into his own home and there be free from unreasonable

governmental intrusion.’” Id. (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)).

“[P]hysical entry of the home is the chief evil against which the wording of the Fourth

Amendment is directed.” Payton v. New York, 445 U.S. 573, 585 (1980) (emphasis added)

(quoting United States v. United States Dist. Court, 407 U.S. 297, 313 (1972)).

The curtilage is “the area ‘immediately surrounding and associated with the home.’”

Jardines, 569 U.S. at 6 (quoting Oliver v. United States, 466 U.S. 170, 180 (1984)). We have

explained that the curtilage is “a space necessary and convenient, habitually used for family

purposes and the carrying on of domestic employment; the yard, garden or field which is near to

and used in connection with the dwelling.” Wellford v. Commonwealth, 227 Va. 297, 302 (1984)

(quoting Bare v. Commonwealth, 122 Va. 783, 795 (1917)). The curtilage is treated as “part of

the home itself for Fourth Amendment purposes.” Jardines, 569 U.S. at 6 (quoting Oliver, 466

U.S. at 180). The United States Supreme Court has explained that “[t]he protection afforded the

curtilage is essentially a protection of families and personal privacy in an area intimately linked

to the home, both physically and psychologically, where privacy expectations are most

heightened.” California v. Ciraolo, 476 U.S. 207, 212-13 (1986).

In this instance, counsel concedes that, at the outset, the officers were lawfully present on

the curtilage. The trial court concluded, and we agree, that until he was arrested, the interaction

between Poulson and the police was consensual. The United States Supreme Court has observed

that “[a]bsent consent or exigent circumstances, a private home may not be entered to conduct a

7 search or effect an arrest without a warrant.” Donovan v. Dewey, 452 U.S. 594, 598 n.6 (1981)

(emphasis added). If officers are lawfully present, however, whether inside the home or on the

curtilage, they need not additionally obtain an arrest warrant to make a lawful arrest when they

have probable cause for the arrest.

The United States Court of Appeals for the Seventh Circuit persuasively explained why

the Fourth Amendment does not require the additional step of obtaining a warrant when the

officers are lawfully present inside the home or on the curtilage. Sheik-Abdi v. McClellan, 37

F.3d 1240, 1245 (7th Cir. 1994). Quoting Professor LaFave, the court warned against

“assum[ing] that the warrant requirement really goes to the matter of arrest rather than the matter

of entry.” Id. (quoting 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth

Amendment § 6.1(c) at 584 (2d ed. 1987)). That assumption is “wrong . . . [b]ecause (i) there is

no general requirement that arrests be made with a warrant, and (ii) an arrest within premises is

no ‘more threatening or humiliating than a street arrest.’” Id. (quoting LaFave, supra § 6.1(c) at

584 (footnotes omitted)). The holding in Payton v. New York “is grounded (as the [United States

Supreme] Court put it) in ‘the breach of the entrance to an individual’s home.’ That is, it is the

otherwise unauthorized entry and not the arrest which gives rise to the warrant requirement.” Id.

(quoting LaFave, supra § 6.1(c) at 584). The court observed that “[o]nce the veil of the home

has been legally pierced, we see no need for police officers to turn a blind eye to crime, so long

as the arrest is otherwise effected in compliance with the constitutional requirement of probable

cause.” Id.

Other courts have agreed. See Augustine v. Doe, 740 F.2d 322, 325 (5th Cir. 1984)

(stating that consent to entry is assumed to be sufficient to permit warrantless arrest); Sparing v.

Village of Olympia Fields, 266 F.3d 684, 688 (7th Cir. 2001) (in the absence of an arrest warrant,

8 consent or exigent circumstances permit officers to enter a residence to effectuate an arrest);

United States v. Greer, 607 F.3d 559, 563 (8th Cir. 2010) (“Without consent or exigency, or an

arrest warrant for a resident, the police generally must have a search warrant to enter a home.”);

United States v. Briley, 726 F.2d 1301, 1303 (8th Cir. 1984) (when police have “valid and

voluntary consent” to enter, they may make a warrantless in-home arrest); United States v.

Struckman, 603 F.3d 731, 747 (9th Cir. 2010) (“[P]olice officers must either obtain a warrant or

consent to enter before arresting a person inside a home or its curtilage.”); Bashir v. Rockdale

County, 445 F.3d 1323, 1328 (11th Cir. 2006) (“[A] warrantless arrest in a home violates the

Fourth Amendment unless the arresting officer had probable cause to make the arrest and either

consent to enter or exigent circumstances demanding that the officer enter the home without a

warrant.”); Moore v. Pederson, 806 F.3d 1036, 1043 (11th Cir. 2015) (holding that a

“warrantless arrest in a home” is allowed if the “arresting officer had probable cause to make the

arrest and either consent to enter or exigent circumstances demanding that the officer enter the

home without a warrant”).

Academic treatises also note that when the police are lawfully present in the home

because of consent, they may arrest a suspect without a warrant. See 3 Wayne

R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 6.1(c) (6th ed. 2024)

(“[T]he warrant requirement is applicable only ‘absent consent.’ Thus, the lower courts have

rather consistently held that no warrant is needed when the person to be arrested or some other

person with a sufficient interest in the premises to admit visitors . . . voluntarily consented to

entry by a known police officer.”) (footnotes omitted); 24 Moore’s Federal Practice ̶ Criminal

Procedure § 604.04 (Matthew Bender 3d ed.) (“The defendant’s consent to entry allows law

enforcement officers to enter and effect a warrantless arrest.”). Most of those cases deal with an

9 arrest inside the home. The same logic applies to the curtilage. The curtilage does not benefit

from greater protections than the inside of the home. *

In accord with this persuasive authority, we conclude that because the officers were

lawfully present on the curtilage, and because they had probable cause to arrest, the Fourth

Amendment did not require them to obtain an arrest warrant to arrest Poulson.

CONCLUSION

We affirm the judgment of the Court of Appeals.

Affirmed.

* Poulson also assigns error to the Court of Appeals’ failure to rule on his entire

assignment of error, “specifically whether or not a police officer may arrest someone while they are on their curtilage of their property absent a warrant or probable cause coupled with an exigency.” It may be that the Court of Appeals intended to address this argument in the second footnote of its opinion. At any rate, assuming the Court of Appeals should have ruled on that question, any error was harmless for the reasons noted above.

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