Park v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Duff
Argued at Alexandria, Virginia

JESSE L. PARK
OPINION BY
v. Record No. 2915-98-4 JUDGE JAMES W. BENTON, JR.
MAY 2, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Dennis J. Smith, Judge

Marvin D. Miller (Law Offices of Marvin D.
Miller, on briefs), for appellant.

Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

Jesse L. Park entered a conditional plea of guilty to

possession of cocaine with the intent to distribute, reserving

the right to appeal the trial judge's rulings on two pretrial

motions. On appeal, Park contends (1) the trial judge erred in

denying his motion to suppress evidence obtained during the

execution of a search warrant, and (2) he was denied due process

of law when a circuit court judge granted the Commonwealth's ex

parte request to release evidence seized during the execution of

the search warrant. For the reasons that follow, we reverse

Park's conviction and remand for a new trial.
 I.

Based upon the affidavit of Detective J.A. Longerbeam, the

Fairfax County police obtained a warrant to search the residence

of Leah Steele and Jesse Park for cocaine and items related to

distribution of cocaine. Longerbeam, approximately nine

narcotics officers, and between ten and fifteen officers from

the tactical team assembled to execute the search warrant. At

approximately 7:00 p.m., Longerbeam, who was wearing blue jeans

and no police identification, knocked on the apartment door.

The tactical team hid to the side of the door on Longerbeam's

right. The tactical team wore all black garments, including

hoods to cover their faces, and armored vests.

Park, who was in the apartment with Steele's two-year-old

son, opened the door. Longerbeam neither identified herself as

a police officer nor said she had a search warrant. Instead,

she said something like, "I'm sorry." Longerbeam testified that

Park then diverted his eyes in the direction of the tactical

team and attempted to shut the door. Longerbeam put her

umbrella in the door to keep it from closing. The tactical team

then rushed into the apartment while simultaneously announcing,

"tactical team for a search warrant," or, "police, search

warrant." During the search, the police seized crack cocaine,

currency, and other items. The police arrested Park after the

search and seizures.

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 II.

"Police officers 'may not forcibly break into dwellings as a

matter of course to execute a [search] warrant.'" Hargrave v.

Commonwealth, 21 Va. App. 320, 323, 464 S.E.2d 176, 177 (1995)

(quoting Commonwealth v. Viar, 15 Va. App. 490, 493-94, 425

S.E.2d 86, 88 (1992)). "'Generally, police officers, before

resorting to forced entry into premises to be searched under

warrant, must attempt to gain admittance peaceably by announcing

their presence, identifying themselves as police officers[,] and

stating their purpose.'" Wynne v. Commonwealth, 15 Va. App.

763, 765, 427 S.E.2d 228, 230 (1993) (quoting Heaton v.

Commonwealth, 215 Va. 137, 138, 207 S.E.2d 829, 830 (1974)).

More specifically, "the police, prior to forcing entry into a

dwelling [, must do the following]: (1) knock; (2) identify

themselves as police officers; (3) indicate the reason for their

presence; and (4) wait a reasonable period of time for the

occupants to answer the door." Gladden v. Commonwealth, 11 Va.

App. 595, 598, 400 S.E.2d 791, 793 (1991); see also Miller v.

United States, 357 U.S. 301, 308-09 (1958). This is known as

the "knock and announce rule." Hargrave, 21 Va. App. at 325,

464 S.E.2d at 178.

The Supreme Court of Virginia explained the purpose of the

knock and announce rule as follows:

The reasons for the requirement of notice of
purpose and authority have been said to be
that the law abhors unnecessary breaking or
destruction of any house, because the

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 dweller in the house would not know the
purpose of the person breaking in, unless he
were notified, and would have a right to
resist seeming aggression on his private
property.

Johnson v. Commonwealth, 213 Va. 102, 104, 189 S.E.2d 678, 679

(1972). Thus, implementation of the rule "discourages violence

and volatile confrontations and encourages orderly executions of

search warrants." Hargrave, 21 Va. App. at 323, 464 S.E.2d at

177. As the United States Supreme Court has noted, "[t]he

requirement of prior notice of authority and purpose before

forcing entry into a home is deeply rooted in our heritage and

should not be given grudging application." Miller, 357 U.S. at

313.

In reviewing the trial judge's denial of Park's motion to

suppress, we view the evidence in the light most favorable to

the prevailing party, granting to it all reasonable inferences

fairly deducible therefrom. See Commonwealth v. Grimstead, 12

Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). We consider de

novo, however, whether the facts in evidence establish that the

officers unlawfully infringed upon Park's Fourth Amendment right

to be free from unreasonable searches and seizures. See McGee

v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261

(1997) (en banc).

Although evidence proved Longerbeam knocked and waited a

reasonable time for Park to answer the door, she did not

identify herself as a police officer. She appeared at his door

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wearing casual clothes and displaying no indication of her

status. She also did not indicate the reason for her presence.

Instead, she said something like, "I'm sorry," which suggested

she knocked in error. Within a matter of seconds, however, the

tactical team rushed the door, which Longerbeam was holding ajar

with her umbrella, and announced as they entered that they were

the police and had a search warrant.

The evidence proved that each member of the tactical team

wore a black, one-piece "flight suit type" of outfit and a black

hood. The evidence also proved that the outfit had a patch on

the sleeves, but not what the patch indicated. Although the

evidence proved that the word "police" was displayed on the

tactical team's outfit, S.M. Monahan, one of the other

detectives, testified that the tactical team wore armored vests

over the upper part of their outfits. No evidence indicated

that the vests contained identifying letters. Even if the trial

judge disbelieved Park's testimony that he did not see any

police markings and a witness' testimony that she did not see

the word "police" on the outfits, the evidence clearly proved

that neither Longerbeam nor the tactical team verbally

identified themselves as the police before they forcibly entered

Park's home.

The tactical team's rushed entry, while simultaneously

announcing that they had a search warrant, is particularly

troubling. "[E]ntering simultaneously with . . . announcing

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. . . affords the occupant no reasonable opportunity to respond

before his home is forcibly entered." Hargrave, 21 Va. App. at

324, 464 S.E.2d at 178; see also Wynne, 15 Va. App. at 767, 427

S.E.2d at 231 (holding that five seconds is not long enough to

give occupants time to respond to the knock and allow peaceable

entry). As the Supreme Court noted in Miller, "[t]he burden of

making an express announcement [before a forced entry] is

certainly slight. A few more words by [the detective] would

have satisfied the requirement in this case." 257 U.S. at

309-10. Simply put, absent exigent circumstances, the entry was

unlawful. See Hargrave, 21 Va. App. at 327, 464 S.E.2d at 179.

The Commonwealth argues, however, that the officers acted

reasonably under exigent circumstances. We are mindful that

"[t]he validity of a search pursuant to the execution of a valid

search warrant is 'judged in terms of its reasonableness within

the meaning of the . . . United States Constitution and . . .

the Constitution of Virginia.'" Wynne, 15 Va. App. at 766, 427

S.E.2d at 230 (citation omitted). Although the Commonwealth

does not argue that the police feared for their safety, the

Commonwealth contends Longerbeam thought Park saw the tactical

team behind her and knew they were the police, thus creating

exigent circumstances which justified the method by which the

police entered. Longerbeam did not signal the tactical team to

advance, however, and no member of the tactical team testified.

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Thus, no evidence established why the tactical team rushed the

door.

"Exceptions to the [knock and announce] rule . . . permit

officers to make an unannounced entry where they have

[reasonable suspicion] to believe that their peril would be

increased if they announced their presence or that an

unannounced entry is necessary to prevent persons within from

escaping or destroying evidence." Heaton, 215 Va. at 138, 207

S.E.2d at 830; see also Wilson v. Arkansas, 514 U.S. 927, 936

(1995). Based on Longerbeam's testimony that she thought Park

had seen the tactical team because his eyes "brightened up," the

trial judge found it was reasonable for the police to believe

Park saw them. Even if Park saw the tactical team, however, the

record permits only speculation that he knew they were police

officers. "A vague notion that perhaps [Park] had recognized

[the men in black to be] . . . officer[s], standing alone, is

not enough" to justify the entry. State v. Ellis, 584 P.2d 428,

431 (Wash. 1978). The evidence of what Park may have seen

suggests his conduct was appropriate. Standing at Park's door

was a woman, whom he apparently did not know, indicating, by

saying, "I'm sorry," that she may have knocked at the wrong

door. Off to her side were persons dressed in black outfits

with masks, whom he may or may not have seen. It was nighttime

in December.

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 Given the circumstances then existing, any reasonable

person would have feared from the black clad intruders "seeming

aggression," Johnson, 213 Va. at 104, 189 S.E.2d at 679, or

"violence and volatile confrontation." Hargrave, 21 Va. App. at

323, 464 S.E.2d at 177. Park testified that after he attempted

to close the door, between eight and ten men in black outfits,

wearing black hoods rushed into his home while he was still near

the door. They forced him to the floor, telling him in so many

words, "get down on the f'ing ground before such and such

happens." The Commonwealth did not dispute that, although Park

was not far from the door, the tactical team did not announce

their presence and give him an opportunity to open the door

before they burst into his home. Nor did the Commonwealth

dispute that Longerbeam never identified herself as a police

officer. "Immediate forceful entry is particularly offensive,

and indeed dangerous, when the only reasonably visible officers

are in plain clothes." Ellis, 584 P.2d at 431.

The police wore clothes which did not plainly announce

their identity as law enforcement officers. Longerbeam came to

Park's door in plain clothes. The tactical team wore hoods over

their heads and faces and vests over their outfits. Cf. Lewis

v. Commonwealth, 26 Va. App. 113, 116, 493 S.E.2d 397, 398-99

(1997) (noting that the word "police" was emblazoned on the

officers' uniforms, they wore police badges on their outer

clothing, and they announced their identity as police officers

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five to ten times). Although a witness for the Commonwealth

testified that the officers were wearing a patch on their

sleeves, no evidence established that the patch actually

identified them as the police or was so prominent that

identification was clearly conveyed. The fact that Park tried

to close the door after looking over Longerbeam's shoulder "did

not of itself prove that he knew [her] purpose [was to conduct a

search of his home]." Miller, 357 U.S. at 311. Park's conduct

"was an ambiguous act . . . [and] could have been merely the

expected reaction of any citizen having this experience . . . ,

particularly since it [was not apparent] that the officers were

in uniform." Id.

From the evidence in this record, "[t]he most that can be

said is that [Park's] act in attempting to close the door might

be the basis for the officers being virtually certain that [he]

knew there were police at his door." Id. (emphasis added). As

the Supreme Court noted, however, this "falls short of a virtual

certainty that [Park] knew of their purpose [of executing a

search warrant]." Id. at 312-13. Therefore, even if Park

realized Longerbeam was a police officer, the warrant was still

unreasonably executed because Longerbeam and the tactical team

failed to announce their purpose before entering.

The Commonwealth further argues that an immediate entry was

necessary because it is common practice for drug dealers to use

barricades and lookouts and to store drugs near the kitchen sink

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or bathroom to allow for quick disposal. The trial judge found

that Park's action of attempting to close the door on Longerbeam

warranted a concern on the part of the officers that Park "was

taking action to frustrate their attempt to gather evidence." A

general practice among drug dealers, however, is not sufficient

to justify a "no-knock entry" in this case. See Heaton, 215 Va.

at 138-39, 207 S.E.2d at 831 (noting that the relevant factor is

what the officers knew), 215 Va. at 139, 207 S.E.2d at 831; see

also Gould v. Davis, 165 F.3d 265 (4th Cir. 1999) (recognizing

that the exigent circumstances that justify failure to knock and

announce must be specific to the individual and premises at

issue). In reversing a conviction based on the fruits of a

similar "no-knock" entry, the Supreme Court found the following:

The police did not know where in Heaton's
apartment the drugs would be found. They
were not familiar with the interior
arrangement of the apartment. They saw no
drugs in the possession of any of the
occupants as they were seated in the living
room. They saw no firearms and had no
reason to believe that any would be used by
the occupants to the greater peril of the
officers if they announced their presence.
They had no reason to believe that the
occupants were destroying or planning to
destroy evidence or that they could have
destroyed evidence if the officers had
demanded entry before breaking down the
door.

Heaton, 215 Va. at 139, 207 S.E.2d at 831.

Moreover, we have held that "where the only exigent

circumstance is that the object of the search is drugs, which by

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their nature are readily disposable, officers may not, without

more, dispense with the need to wait a reasonable time for the

occupants to respond before making a forced entry." Hargrave,

21 Va. App. at 325, 464 S.E.2d at 179 (citation omitted); see

also Richards v. Wisconsin, 520 U.S. 385, 396 (1997) (holding

that no "felony drug investigations" exception exists to the

Fourth Amendment requirement to first knock and announce and

then allow time for peaceable compliance before executing a

search warrant). "[A] search is not to be made legal by what it

turns up. In law it is good or bad when it starts and does not

change character by its success." United States v. Di Re, 332

U.S. 581, 595 (1948)). No evidence in this record proved the

officers had reason to believe the occupants were destroying or

planning to destroy evidence.

"[A] lawful entry is the indispensable predicate of a

reasonable search." Ker v. California, 374 U.S. 23, 53 (1963).

This entry was unlawful because no exigent circumstances

existed, and the police neither announced their presence before

entry nor allowed Park the opportunity to admit them peaceably.

We have held to be unreasonable even a single officer peaceably

opening an unlocked closed front door after knocking and

yelling, "Police, search warrant," and waiting two to three

seconds before entering. See Hargrave, 21 Va. App. at 324, 464

S.E.2d at 178. Likewise, yelling, "police, search warrant,"

waiting twenty seconds, and then rushing in is unreasonable.

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See Gladden, 11 Va. App. at 597, 400 S.E.2d at 792. Entering

Park's residence, the police failed to meet the standards for

the reasonable execution of a search warrant and, thus, violated

the "constitutional protections against unreasonable searches

and seizures guaranteed by the Fourth Amendment of the United

States Constitution and Article I, § 10 of the Virginia

Constitution." Hargrave, 21 Va. App. at 322, 464 S.E.2d at 177.

Because a lawful entry "was not done in this case, . . . any

evidence seized as a result of this entry was 'the fruit of the

poisonous tree' and should have been suppressed." Gladden, 11

Va. App. at 600, 400 S.E.2d at 794 (citation omitted).

III.

Park also contends that his due process right to a fair

trial was abridged when, upon the Commonwealth's motion, a

circuit court judge held an ex parte hearing that resulted in

the destruction of evidence. Park argues that Steele, the

person with whom the police had engaged in undercover drug

transactions, was the only one involved in selling drugs. Park

also argues that the marked "buy money" from Steele's sales to

the police was included in the funds which were seized. Thus,

Park contends the money was exculpatory evidence essential to

his defense because he could have shown that his fingerprints

were not on the money.

The evidence proved that the affidavit in support of the

search warrant authorized the police to seize as evidence any

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money found in the residence. The officers seized $3,662 during

the search and filed a sworn return verifying that the seized

money was evidence.

Although Park's counsel had filed an appearance of counsel

form with the clerk of the court on December 18, 1997, and the

preliminary hearing had been scheduled, the Commonwealth sought

and obtained an ex parte hearing with a circuit court judge

concerning the money seized during the search. During the

hearing, the judge entered an order authorizing the police to

remove the seized money from the property room, where it was

maintained as evidence in accordance with Code § 19.2-58, and to

deliver it to the United States Drug Enforcement Agency for

federal forfeiture proceedings. The order was never served on

Park or his counsel. Acting under authority of the order, the

police deposited the money into a bank in exchange for a

cashier's check.

During the regular course of trial preparation, Park's

counsel filed a motion for discovery to inspect the seized

items. After the trial judge ordered discovery, Park learned of

the ex parte proceeding. Park contends that had he been given

notice of the proceedings, he would have argued that the

currency was exculpatory and essential to his defense and that

the federal government had not requested the turnover.

The ex parte nature of the proceedings is especially

troublesome. Upon the prosecutor's application and without

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notice to Park, the trial judge authorized the police to deliver

the seized currency to the Drug Enforcement Agency for

forfeiture proceedings. The evidence suggests that the

Commonwealth first informed the federal agency of the money the

day after the ex parte meeting. Before Park had an opportunity

to explain his need for the evidence and without waiting for a

response from the federal agency, the Commonwealth converted the

cash into a cashier's check.

It is undisputed that Park's fingerprints were not on the

drugs found at the home and that Park was not involved in any of

the controlled buys which formed the basis for the search

warrant. Park contends the Commonwealth's conduct forever

deprived him of the opportunity to have fingerprint analysis

conducted on the cash. The Commonwealth argues, however, that

even assuming the money did not contain his fingerprints, this

fact would not exonerate Park because Park admitted he was

selling cocaine and told the police where to find the cocaine in

the apartment.

In the seminal case involving the government's destruction

of evidence, the United States Supreme Court held that the

government violates due process if the evidence possessed

"exculpatory value that was apparent before the evidence was

destroyed, and [the evidence is] of such a nature that the

defendant would be unable to obtain comparable evidence by any

other reasonable means." California v. Trombetta, 467 U.S. 479,

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489 (1984). Later, the Court added the requirement that the

defendant demonstrate bad faith.

The Due Process Clause of the Fourteenth
Amendment, as interpreted in Brady [v.
Maryland, 373 U.S. 83 (1963)], makes the
good or bad faith of the State irrelevant
when the State fails to disclose to the
defendant material exculpatory evidence.
But we think the Due Process Clause requires
a different result when we deal with the
failure of the State to preserve evidentiary
material of which no more can be said than
that it could have been subjected to tests,
the results of which might have exonerated
the defendant. Part of the reason for the
difference in treatment is found in the
observation made by the Court in [California
v. Trombetta, 467 U.S. 479, 486 (1984)],
that "[w]henever potentially exculpatory
evidence is permanently lost, courts face
the treacherous task of divining the import
of materials whose contents are unknown and,
very often, disputed." Part of it stems
from our unwillingness to read the
"fundamental fairness" requirement of the
Due Process Clause, see Lisenba v.
California, 314 U.S. 219, 236 (1941), as
imposing on the police an undifferentiated
and absolute duty to retain and to preserve
all material that might be of conceivable
evidentiary significance in a particular
prosecution. We think that requiring a
defendant to show bad faith on the part of
the police both limits the extent of the
police's obligation to preserve evidence to
reasonable bounds and confines it to that
class of cases where the interests of
justice most clearly require it, i.e., those
cases in which the police themselves by
their conduct indicate that the evidence
could form a basis for exonerating the
defendant. We therefore hold that unless a
criminal defendant can show bad faith on the
part of the police, failure to preserve

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 potentially useful evidence does not
constitute a denial of due process of law.

Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988).

Thus, the test for determining whether Park's due process

rights were violated is whether the Commonwealth acted in bad

faith. When the government in bad faith destroys evidence

"potentially" useful to the defense, it denies the defendant due

process of law. Galbraith v. Commonwealth, 18 Va. App. 734,

739, 446 S.E.2d 633, 636 (1994). "The presence or absence of

bad faith by the police for purposes of the Due Process Clause

must necessarily turn on the police's knowledge of the

exculpatory value of the evidence at the time it was lost or

destroyed." Youngblood, 488 U.S. at 57 n.*.

The Commonwealth has not given a valid reason for the ex

parte proceeding leading to the destruction of the evidence.

According to established procedure, opposing counsel must be

given notice before the entry of an order in the circuit court.

See Rule 1:13. The rules contain no exception for orders

delivering seized evidence to the United States for forfeiture

proceedings. The impropriety of that procedure, however, does

not solely determine the issue to be resolved, viz., "the

police's knowledge of the exculpatory value of the evidence."

Youngblood, 488 U.S. at 57 n.*. A police officer testified that

he requested a prosecutor, who had no involvement in Park's

case, to seek the order. The trial judge made no findings

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regarding the knowledge of the Commonwealth's agents.

Accordingly, because of the unresolved facts in the record, we

do not decide this question.

We hold that the Commonwealth failed to justify the

forceable entry to Park's home. Because the trial judge erred

in not suppressing the seized evidence, we reverse the judgment

of conviction and remand the case for further proceedings, if

the Commonwealth be so advised. If further proceedings occur,

the trial judge is directed to reconsider, pursuant to the

Youngblood standard, the destruction of the evidence.

Reversed and remanded.

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