COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Senior Judge Overton
Argued at Richmond, Virginia
DERRICK GEORGE HENRY
OPINION BY
v. Record No. 0957-99-2 JUDGE NELSON T. OVERTON
JUNE 13, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
John F. McGarvey for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General;
Jeffrey S. Shapiro, Assistant Attorney
General, on brief), for appellee.
Appellant, Derrick George Henry, was convicted of
possession of cocaine with intent to distribute, in violation of
Code § 18.2-248. On appeal, he contends the trial court erred
in refusing to suppress evidence seized during execution of a
search warrant. Finding no error, we affirm.
BACKGROUND
"In reviewing a trial court's denial of a motion to
suppress, 'the burden is upon [the defendant] to show that the
ruling, when the evidence is considered most favorably to the
Commonwealth, constituted reversible error.'" McGee v.
Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)
(en banc) (citation omitted). While we are bound to review de
novo the ultimate questions of reasonable suspicion and probable
cause, we "review findings of historical fact only for clear
error 1 and . . . give due weight to inferences drawn from those
facts by resident judges and local law enforcement officers."
Ornelas v. United States, 517 U.S. 690, 699 (1996) (footnote
added).
The evidence proved that on the afternoon of February 12,
1997, five police officers proceeded to appellant's apartment to
execute a search warrant. Before the officers approached the
residence, Officer Shapiro, who was in a surveillance vehicle,
saw appellant and another male arrive by car, park, take a black
bag out of the trunk, and enter the apartment. Fifteen minutes
later, the other male left, at which time the police decided to
execute the search warrant.
Four of the officers prepared to enter through the front
door, and the fifth, Sergeant Russell, was to guard the rear of
the apartment to prevent anyone from escaping out of a rear
window. As the officers approached the front door, they saw two
men, Manuel and Hawkins. Manuel was on the front porch, and
Hawkins was exiting from the front door.
Officer Rogers testified that Manuel was "coming off the
porch . . . [and] trying to exit towards the street." Rogers
1
"In Virginia, questions of fact are binding on appeal
unless 'plainly wrong.'" McGee, 25 Va. App. at 198 n.1, 487
S.E.2d at 261 n.1 (citations omitted).
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pursued and apprehended Manuel. Russell assisted him, leaving
no one to prevent occupants in the apartment from fleeing out of
the rear window.
Hawkins exited and was closing the front door behind him
when Officer Shapiro approached. Shapiro was "number one in
line" and was supposed to ram the front door, if necessary.
Shapiro and other officers "started announcing" their identity
and purpose as Hawkins exited. Shapiro did not try to apprehend
Hawkins. Two seconds after Hawkins closed the door, Shapiro
turned the knob and found that the door was unlocked. He opened
the door and entered, yelling, "search warrant, police,
everybody down." Officer Capelli followed Shapiro into the
house a few seconds later and repeatedly yelled his identity and
purpose. After entering the apartment, Shapiro located and
arrested appellant.
Upon seeing Manuel on the porch and Hawkins leaving through
the front door, Officer Payne "immediately attempted to stop
[Hawkins]." She shouted numerous times for Hawkins to come off
the porch and "get to the ground," but he refused. A struggle
ensued in the front yard of the house, and "[i]t took [several]
officers to get [Hawkins] down." Payne testified that the noise
outside was so loud that officers in a marked unit a block or
two away "heard us yelling" and "came to our assistance." Other
officers assisted Payne in eventually subduing Hawkins.
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In a pretrial motion to suppress the evidence seized in the
search of the residence, appellant claimed the officers violated
his Fourth Amendment right against unreasonable searches and
seizures by failing to knock and announce their presence. The
trial court denied the motion, finding that exigent
circumstances justified the decision to enter the residence
unannounced. This appeal followed.
LEGAL STANDARD
The validity of a search under the authority of a valid
search warrant is "'judged in terms of its reasonableness within
the meaning of the fourth amendment to the United States
Constitution and Article I, § 10 of the Constitution of
Virginia.'" Lewis v. Commonwealth, 26 Va. App. 113, 117, 493
S.E.2d 397, 399 (1997) (quoting Grover v. Commonwealth, 11 Va.
App. 143, 145, 396 S.E.2d 863, 864 (1990)). "Our courts have
consistently held that the protections afforded under the
Virginia Constitution are co-extensive with those in the United
States Constitution." Bennefield v. Commonwealth, 21 Va. App.
729, 739-40, 467 S.E.2d 306, 311 (1996); see also Lowe v.
Commonwealth, 230 Va. 346, 348 n.1, 337 S.E.2d 273, 275 n.1
(1985) (explaining that protections under Virginia's Constitution
and statutes are "substantially the same as those contained in
the Fourth Amendment"); Janis v. Commonwealth, 22 Va. App. 646,
650-51, 472 S.E.2d 649, 652 (1996) (holding same); Turner v.
Commonwealth, 14 Va. App. 737, 743, 420 S.E.2d 235, 239 (1992)
(explaining that search and seizure protections are coextensive
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with federal constitutional protections); Simmons v.
Commonwealth, 6 Va. App. 445, 451 n.2, 371 S.E.2d 7, 10 n.2
(1988) (holding that, if traffic checkpoint survives Fourth
Amendment scrutiny, it is constitutional under Article I, § 10 of
Virginia's Constitution), rev'd on other grounds, 238 Va. 200,
380 S.E.2d 656 (1989).
Generally, police executing a search warrant must "'(1)
knock; (2) identify themselves as police officers; (3) indicate
the purpose for their presence; and (4) wait a reasonable time
for the occupants to answer the door'" before entering a
residence. Lewis, 26 Va. App. at 117, 493 S.E.2d at 399
(quoting Gladden v. Commonwealth, 11 Va. App. 595, 598, 400
S.E.2d 791, 793 (1991)). In Commonwealth v. Woody, 13 Va. App.
168, 170, 409 S.E.2d 170, 171 (1991), we noted two exceptions to
this rule allowing for unannounced entries: "(1) when officers
'have probable cause to believe that their peril would be
increased if they announced their presence' or (2) when officers
have probable cause to believe 'that an unannounced entry is
necessary to prevent persons within from escaping or destroying
evidence.'" Id. at 170, 409 S.E.2d at 171 (quoting Heaton v.
Commonwealth, 215 Va. 137, 138, 207 S.E.2d 829, 830 (1974); also
citing Keeter v. Commonwealth, 222 Va. 134, 141, 278 S.E.2d 841,
846 (1981)).
Relying on Heaton and Keeter and citing Woody, we again
applied the probable cause standard in reviewing the
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reasonableness of an unannounced entry in Spivey v.
Commonwealth, 23 Va. App. 715, 722, 479 S.E.2d 543, 547 (1997).
Four months after our decision in Spivey, the United States
Supreme Court decided a case involving exceptions to the
knock-and-announce rule. See Richards v. Wisconsin, 520 U.S.
385 (1997). In Richards, the Supreme Court held that "[i]n
order to justify a 'no-knock' entry, the police must have a
reasonable suspicion that knocking and announcing their
presence, under the particular circumstances, would be dangerous
or futile, or that it would inhibit the effective investigation
of the crime." Id. at 394 (emphasis added).
Because the protections afforded under Virginia's
Constitution are coextensive with those contained in the Fourth
Amendment, we apply the legal standard adopted by the United
States Supreme Court in interpreting the Fourth Amendment and
determining cases thereunder. Therefore, in analyzing the
applicability of an exception to the "knock and announce"
requirement, we hold that the "reasonable suspicion" standard
adopted in Richards is the proper legal standard. Accordingly,
we no longer follow the stricter "probable cause" standard
applied in Woody and its progeny, including Spivey.
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ANALYSIS
The evidence established that the approaching officers,
armed with a valid search warrant, saw two individuals in the
front of appellant's residence. One individual, Manuel, stood on
the porch, while the other, Hawkins, closed the front door. At
that moment, the approaching officers repeatedly announced their
identity and purpose and ordered the men to submit to the
officers' authority. Manuel fled and Hawkins resisted orders to
come off the porch and lie down on the ground, creating a great
deal of noise and confusion and requiring most of the executing
officers to subdue them. The remaining officers opened the
unlocked door, identified themselves as police officers with a
search warrant and entered the residence.
Based on the loud disturbance taking place in front of
appellant's residence and the fact that three of the five
officers were involved in apprehending two recalcitrant suspects
outside the premises to be searched, we find the Commonwealth
sufficiently established that the officers had a reasonable
suspicion that knocking and announcing their presence would be
dangerous or futile. Accordingly, we find the trial court did
not err in refusing to suppress the evidence, and we affirm the
conviction.
Affirmed.
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