NEWS- All the way: Beer-serving Robinsons appeal

The Albemarle couple originally sentenced to eight years in jail for serving alcohol to teenagers and still facing more than two years behind bars are appealing their conviction to the U.S. Supreme Court.

In January, the Virginia Supreme Court rebuffed arguments of George and Elisa Robinson and upheld the 27-month sentences imposed by Albemarle Circuit Court Judge Paul Peatross in 2003. The couple, now divorced, plan to go forward to the court of last resort, the U.S. Supreme Court.

"Many are called, few are chosen," says Fran Lawrence, attorney for Elisa Robinson, assessing the chances the U.S. Supreme Court will actually hear the case.

"One of the encouraging things is, it helps that the Virginia Supreme Court has identified two areas the U.S. Supreme Court had not yet ruled on," notes Lawrence.

The Robinsons argued that police violated their Fourth Amendment rights against unreasonable searches when Corporal Scott Cox responded to three calls August 16, 2002, reporting an underage drinking party at their home on Bleak House Road.

Elisa Robinson's son told her he planned to drink on his 16th birthday. To forestall a potential teen drinking tragedy, the Robinsons agreed to host a pool party. Elisa purchased $350 in beer and designer drinks that were iced down in large trashcans in the backyard behind a fence.

When Corporal Cox arrived, he saw what appeared to be two minors in the backyard drinking beer. The youths yelled, "cops!" dropped their beers and fled, according to Cox's testimony. 

The Robinsons contend that when Cox spotted the underage drinkers, he was not where he legally should have been, and therefore the evidence should be suppressed.

Lawrence says one of the major issues is a rarely discussed legal concept called curtilage.

Curtilage is the area around a house that is given the same home-is-a-castle privacy protection as inside the house itself. The Robinsons argued that their backyard is curtilage.

Also at play is the implied consent of the knock-and-talk concept. "You can knock on the door of any man's castle," explains Lawrence. There's implied consent for the mailman or Girls Scouts to come to the front door.

 So instead of heading to the backyard where the partying teens were, Cox should have gone to the front door, say the Robinsons. "You have to take the most direct route," says Lawrence. By the time Cox saw the underage drinkers, Lawrence contends, "He'd already violated the Fourth Amendment."

The couple also question Cox's intent. "The officer never said he was on the way to the front door," says Lawrence. "He said he was investigating, so there was no implied consent."

The U.S. Supreme Court has repeatedly rejected any consideration of the subjective motivation of a police officer in determining whether a search is Constitutional, the Virginia Supreme Court wrote in dismissing that argument.

Virginia courts have ruled that Corporal Cox had probable cause and there were exigent circumstances– i.e. the potential for the evidence to be destroyed– to justify a warrantless search. 

But Lawrence is encouraged that three judges of Virginia's Court of Appeals dissented with the majority and found Cox's search unconstitutional. Now the most pressing question is whether the U.S. Supreme Court will agree to hear the case.

Curtilage was a factor in another local case. When the city of Charlottesville hauled Shirley Presley into court in 2004 for erecting a razor-wire barricade across the trail on her property along the Rivanna River, her attorney, Fred Payne, argued that the city's search of her property was unconstitutional because the barricade was within curtilage.    

"Our position was the search was unlawful because it was without a warrant or exigent circumstances," says Payne.

Assistant Commonwealth's Attorney Ron Huber said that curtilage was not defined by property line, but by use. Judge Robert Downer, agreed, ruling that because steep terrain separated the trail from Presley's house, it was not within curtilage. "He was probably right on that," concedes Payne.

Downer dismissed the city's case anyway, and Presley is suing Charlottesville and the Rivanna Trails Foundation for $1.5 million for violating her civil rights by publishing a map without her permission of the Rivanna Trail going through her Bland Circle property.

Judge Norman Moon dismissed Presley's claim in 2005, but the Fourth Circuit Court of Appeals ruled that she may go forward with her suit.

Meanwhile, four-and-a-half years have passed since the night George and Elisa Robinson were arrested for contributing to the delinquency of minors. 

Judge Dwight Johnson stunned the community when, on February 3, 2003, he sentenced them to an unprecedented eight years in jail and had the shackled parents led to jail as a threat to the community. The couple appealed, and Peatross sentenced them to three months in jail for each of nine counts, despite Commonwealth Attorney Jim Camblos' recommendation of 90 days.

For the Robinsons, the legal ordeal promises at least one irony. The case has lasted so long that the teens who fled from police that night in 2002 have reached the legal drinking age.

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