PRESENT: All the Justices
COMMONWEALTH OF VIRGINIA
v. Record No. 071419 OPINION BY
JUSTICE S. BERNARD GOODWYN
CHRISTOPHER SHAWN ROBERTSON April 18, 2008
FROM THE COURT OF APPEALS OF VIRGINIA
In this case, we consider the standard to be applied in
determining whether a search is reasonable under the
protective sweep and exigent circumstances exceptions to the
Fourth Amendment warrant requirement for search of a person’s
home.
Christopher Shawn Robertson (“Robertson”) was charged
with violating Code § 18.2-308.2, possessing a firearm after
having been declared delinquent while a juvenile over the age
of fourteen for a crime that would have been a felony if
committed as an adult. He was also charged with discharging a
firearm within city limits, in violation of Danville City Code
§ 40.3. Robertson filed a motion to suppress in the Circuit
Court of the City of Danville. He contested the search of his
home and sought to suppress the admission into evidence of a
shotgun found in his home and photographs depicting spent
shotgun shells found near the shotgun and holes in the ceiling
of his home. The court denied the motion to suppress and
convicted Robertson on both charges.
Robertson appealed to the Court of Appeals, and the Court
of Appeals, in a published opinion, reversed the circuit
court’s judgment on the motion to suppress. Robertson v.
Commonwealth, 49 Va. App. 787, 645 S.E.2d 332 (2007). The
Commonwealth appeals.
FACTS
On the afternoon of August 24, 2005, Robertson and his
live-in girlfriend Tiffany Cobbs (“Cobbs”) returned from
Robertson’s grandfather’s house after Robertson had, according
to Cobbs, consumed at least “a fifth” of alcohol. The couple
began arguing about their infant son who died in January 2005.
After a lengthy argument, Robertson threatened to kill
himself. Upon hearing this threat, Cobbs walked out of the
house and called an emergency operator, “911.” While she was
speaking to the 911 operator, Cobbs heard two gunshots fired
in the house. As directed by the 911 operator, Cobbs remained
outside and waited for the police officers to arrive.
Responding to the 911 call, Officer Ernest Thompson
(“Officer Thompson”) of the City of Danville Police
Department, arrived on the scene at approximately 1:00 a.m. on
August 25. Upon arrival, Officer Thompson interviewed Cobbs.
Cobbs relayed to Officer Thompson that Robertson was alone in
the house. Numerous members of the Danville Police
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Department, including special weapons and tactics (“SWAT”)
team members, surrounded the residence. An extended
confrontation with Robertson ensued.
A thirty-five minute videotape of that confrontation was
placed into evidence at trial. The tape shows Robertson,
visibly intoxicated and emotional, cursing at the officers
from an open front window, breaking glass panes from the
window, and repeatedly denying he had killed his son.
Robertson claimed to have a shotgun in the house and admitted
to firing the shotgun; however, no shots were fired while the
police were present. The confrontation ended when police
officers subdued Robertson with a “Taser” electric stun weapon
as he was sitting on the windowsill with his legs hanging out
of the window. After being stunned by the Taser, Robertson
fell to the ground outside of his residence where he was
placed into police custody.
After being apprehended, Robertson told the officers, as
had Cobbs, there “[a]in’t nobody else in the house.” * No one
asked Cobbs or Robertson for permission to enter their home,
and neither of them voluntarily consented to the police
entering the dwelling. However, after Robertson was in
*
During the bench trial, the Commonwealth’s attorney
conceded that Robertson was the only occupant at the time of
the confrontation with police.
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custody, police officers broke through the barricaded front
door and entered the residence. Once inside the residence,
officers seized a shotgun and took photographs. The shotgun
and photographs were the subject of the motion to suppress.
During the hearing on the motion to suppress, Officer
Thompson confirmed that the SWAT team was on the scene, and
went inside the house to secure the premises, after
Robertson’s arrest, as “part of the procedures we do.” There
was no testimony that any of the police officers had any
belief or suspicion that anyone remained in the house
following Robertson’s arrest.
ANALYSIS
The Commonwealth asserts that the Court of Appeals erred
by holding that the police officers’ entry into Robertson’s
home violated Robertson’s Fourth Amendment rights. The
Commonwealth also argues that the Court of Appeals did not
apply the appropriate appellate standard of review.
A defendant’s claim that evidence was seized in violation
of the Fourth Amendment presents a mixed question of law and
fact that an appellate court must review de novo on appeal.
Cost v. Commonwealth, 275 Va. 246, 250, 657 S.E.2d 505, 507
(2008); Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d
836, 838 (2002); see Bolden v. Commonwealth, 263 Va. 465, 470,
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561 S.E.2d 701, 704 (2002); McCain v. Commonwealth, 261 Va.
483, 489, 545 S.E.2d 541, 545 (2001); see also Ornelas v.
United States, 517 U.S. 690, 691, 699 (1996). In making such
a 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. Bolden, 263 Va. at 470,
561 S.E.2d at 704; McCain, 261 Va. at 490, 545 S.E.2d at 545;
Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924
(2000); see Commonwealth v. Redmond, 264 Va. 321, 327, 568
S.E.2d 695, 698 (2002). The defendant has the burden to show
that, considering the evidence in the light most favorable to
the Commonwealth, the circuit court’s denial of his
suppression motion was reversible error. Bolden, 263 Va. at
470, 561 S.E.2d at 704; McCain, 261 Va. at 490, 545 S.E.2d at
545; Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729,
731 (1980).
Seizures of personal property from a private dwelling are
generally considered unreasonable within the meaning of the
Fourth Amendment unless accomplished pursuant to a judicial
warrant. United States v. Place, 462 U.S. 696, 701 (1983);
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Robinson v. Commonwealth, 273 Va. 26, 34, 639 S.E.2d 217, 221
(2007). There is an exception to this general rule when
exigent circumstances exist. Verez v. Commonwealth, 230 Va.
405, 410, 337 S.E.2d 749, 752 (1985). Also, police officers
are allowed to conduct a search of the immediate area to
assure officer safety in the course of making an arrest.
Maryland v. Buie, 494 U.S. 325, 337 (1990). This is known as
a “protective sweep.” Id. Exigent circumstances and
protective sweeps constitute separate and distinct exceptions
to the general rule. The Commonwealth claims that the Court
of Appeals erred in failing to find either of those exceptions
applicable in this case.
The Fourth Amendment permits the police to conduct a
limited protective sweep in conjunction with an in-home arrest
when the searching officer possesses a reasonable belief,
based on specific and articulable facts, that the area to be
swept harbors an individual posing a danger to those on the
arrest scene. Buie, 494 U.S. at 337; see Megel v.
Commonwealth, 262 Va. 531, 536 (2001). The rationale for the
protective sweep exception is that a dangerous person could be
hiding in the home and attack the officer. Buie, 494 U.S. at
333.
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In this case, Robertson was arrested outside of his home.
Given the information provided to the police by Robertson and
Cobbs, and the officers’ observations during their extended
standoff with Robertson, once Robertson was arrested, there
were no articulable facts to indicate that Robertson’s home
harbored anyone posing a danger to the individuals present at
the arrest scene. The protective sweep exception is not
applicable in this instance where the officers broke through
the barricaded door of Robertson’s home, after apprehending
Robertson. The Court of Appeals, therefore, did not err in
ruling that the protective sweep exception does not apply in
this case.
The Commonwealth also claims that the Court of Appeals
erred in failing to conclude that there were exigent
circumstances justifying the police officers’ entrance into
Robertson’s home. This Court has recognized factors that are
relevant in determining if this exception is applicable:
(1) [T]he degree of urgency involved and the time
required to get a warrant; (2) the officers’
reasonable belief that contraband is about to be
removed or destroyed; (3) the possibility of danger
to others, including police officers left to guard
the site; (4) information that the possessors of
the contraband are aware that the police may be on
their trail; (5) whether the offense is serious, or
involves violence; (6) whether officers reasonably
believe the suspects are armed; (7) whether there
is, at the time of entry, a clear showing of
probable cause; (8) whether the officers have a
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strong reason to believe the suspects are actually
present in the premises; (9) the likelihood of
escape if the suspects are not swiftly apprehended;
and (10) the suspects’ recent entry into the
premises after hot pursuit.
Robinson, 273 Va. at 41-42, 639 S.E.2d at 226; Verez, 230 Va.
at 410-11, 337 S.E.2d at 753.
Here, the officers entered Robertson’s home after
Robertson had been apprehended. Robertson and Cobbs had
informed the police officers that there was no one else in the
home, and perhaps more importantly, the officers’ observations
during their extensive surveillance of the premises for an
extended period of time, indicated that there was no one
present in the home after Robertson’s arrest. Further, there
was no reason to believe that contraband was about to be
removed or destroyed, little danger to anyone left to guard
the site, no likelihood of any suspect escaping, and no hot
pursuit. Thus, there is no evidence of an exigency that
justifies the officers’ breaking through the barricaded door
of Robertson’s home without obtaining a warrant. The Court of
Appeals, therefore, did not err in holding the exigent
circumstances exception to the Fourth Amendment warrant
requirement inapplicable. The officers’ search of Robertson’s
home was in violation of Robertson’s rights under the Fourth
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Amendment. Additionally, the Court of Appeals correctly
applied the proper standard of review.
For these reasons, the judgment of the Court of Appeals
is affirmed.
Affirmed.
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