COURT OF APPEALS OF VIRGINIA
Present: Judge Bray, Senior Judges Baker and Overton *
Argued at Norfolk, Virginia
NATHANIEL JONES
OPINION BY
v. Record No. 2024-97-1 JUDGE JOSEPH E. BAKER
MARCH 23, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John E. Clarkson, Judge
Douglas Fredericks for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Nathaniel Jones (appellant) appeals from his bench trial
convictions by the Circuit Court of the City of Norfolk (trial
court) for possession of cocaine with intent to distribute and
possession of a firearm while in possession of cocaine. Appellant
contends the trial court erroneously denied his motion to suppress
evidence of the cocaine and firearm seized by the police from
appellant's apartment during a warrantless entry therein. We
granted a writ on the single issue of whether it was objectively
*
Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999, and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
reasonable for a police officer assisting at the scene of an
apartment fire to make a warrantless, non-consensual entry of a
specific apartment in response to a firefighter's statement, "I
have something I want to show you."
In reviewing a trial court's denial of a motion to suppress,
we are bound to review de novo the ultimate questions of
reasonable suspicion and probable cause. See Ornelas v. United
States, 517 U.S. 690, 699 (1996). But we "review findings of
historical fact only for clear error and . . . give due weight to
inferences drawn from those facts by resident judges and local law
enforcement officers." 1 Id. Giving due weight to inferences
appearing to have been drawn by the trial court, we find ample
evidence to support its judgment.
The record discloses that on December 22, 1994, police and
firefighters responded to a fire at appellant's apartment.
Firefighter Nathan Thomas (Thomas) testified that once the fire
was under control, he had the dual responsibility of ventilating
the apartment by opening all the windows and searching the
apartment for any people or pets who might be inside. While
proceeding down a hallway in the apartment, Thomas found a handgun
on the floor. Upon entering a bedroom to open the windows, Thomas
1
In Virginia, questions of fact are binding on appeal unless
"plainly wrong." Quantum Dev. Co. v. Luckett, 242 Va. 159, 161,
409 S.E.2d 121, 122 (1991); Naulty v. Commonwealth, 2 Va. App.
523, 527, 346 S.E.2d 540, 542 (1986).
- 2 -
saw a quantity of cash and some plastic bags containing what
appeared to him to be narcotics.
Once he completed his search for people and pets, and his
ventilation activities, pursuant to standard procedures Thomas
informed his supervisor of the cash he had observed in the
bedroom. Thomas then exited the apartment and approached Norfolk
Police Officer Frank Reece (Reece), who was the first police
officer to arrive on the scene. Without telling Reece what he had
observed, Thomas said to Reece, "I have something I want to show
you." Reece followed Thomas into the apartment to the back
bedroom where Thomas showed Reece the suspected contraband, which
was in plain view on the bed and dresser. The contraband
consisted of a large block or sheet of crack cocaine "a couple of
inches across" and prepackaged baggies of rock cocaine on the
dresser. Thomas also showed Reece the handgun he had found in the
hallway.
The substance in the bags on the bed and dresser appeared to
Reece to be crack cocaine. He notified the vice and narcotics
unit of what he had observed. Because all the windows were open
to ventilate this ground-level apartment, and because a sizeable
crowd was gathered outside, Reece posted himself in the bedroom to
preserve the evidence. He did not, however, search the room.
Investigator T.L. Sterling (Sterling) proceeded to
appellant's apartment in response to the call from Reece. The
- 3 -
firefighters were still at the scene when Sterling arrived, and
the apartment was still being ventilated. Sterling entered the
apartment and concluded that the substance on the bed was cocaine.
He did not search the apartment, and he entered only the bedroom
where Thomas had discovered the cocaine. Leaving two officers to
guard the evidence, Sterling departed and obtained a search
warrant for appellant's apartment.
Appellant argues that Reece's entry was unlawful, asserting
that no exigent or other circumstances existed to justify a
warrantless entry into his apartment. He further contends that
Thomas was no more than an ordinary informant, that Reece was
required to obtain a warrant before entering, and that the warrant
Sterling obtained was tainted by Reece's warrantless entry.
The Commonwealth argues that Reece's entry was justified by
exigent circumstances and that, in any event, discovery was
inevitable because Thomas observed the contraband in plain view,
and Thomas was lawfully on the premises. The Commonwealth further
contends there is no dispute that Thomas' entry was legal and,
therefore, when Reece was summoned to enter, he entered with the
same rights as the firefighter.
By varying interpretations of the Fourth Amendment to the
United States Constitution, courts judicially have created an
"exclusionary rule," which requires suppression of evidence
discovered in violation of that amendment and the rule. See e.g.,
- 4 -
United States v. Calandra, 414 U.S. 338, 348 (1974). In applying
the exclusionary rule, however, we are constantly reminded that
the Fourth Amendment does not forbid all searches and seizures,
only unreasonable ones. See Elkins v. United States, 364 U.S.
206, 222 (1960); Verez v. Commonwealth, 230 Va. 405, 410, 337
S.E.2d 749, 752 (1986); Reynolds v. Commonwealth, 9 Va. App. 430,
435, 388 S.E.2d 659, 662 (1990). When reviewing a trial court's
denial of a motion to suppress, we are instructed to apply the
exclusionary rule with caution. See Joseph v. Commonwealth, 10
Va. App. 87, 98, 390 S.E.2d 491, 497 (1990) (en banc) (citing
Rakas v. Illinois, 439 U.S. 128, 137 (1978)). 2
Unless an exception is shown by the evidence, in the absence
of exigent circumstances, the threshold of one's home may not be
crossed without a warrant. See Payton v. New York, 445 U.S. 573,
590 (1980). Whether the exclusionary rule should be applied to
exclude evidence discovered as a result of a warrantless entry
must be determined from an examination of the facts leading to the
entry. See Commonwealth v. Ealy, 12 Va. App. 744, 752, 407 S.E.2d
681, 686 (1991).
At the trial level, the Commonwealth has a heavy burden to
justify a warrantless entry, as all such entries are presumed
invalid. See Commonwealth v. Thornton, 24 Va. App. 478, 484, 483
2
A warrantless search may not be unlawful if it is
reasonable. See Reynolds, 9 Va. App. at 435, 388 S.E.2d at 663.
- 5 -
S.E.2d 487, 490 (1997). Upon appeal from a trial court's denial
of a motion to suppress the discovered evidence, however, the
burden is on the appellant "to show that this ruling, when the
evidence is considered most favorably to the Commonwealth,
constituted reversible error." Fore v. Commonwealth, 220 Va.
1007, 1010, 265 S.E.2d 729, 731 (1980).
A burning building presents an exigency of sufficient
proportions to render a warrantless entry reasonable. See
Michigan v. Tyler, 436 U.S. 499, 509 (1978). Moreover, the
exigent circumstances created by a fire are not extinguished the
moment the fire is put out. Rather, the exigent circumstances
warranting intrusion by government officials continue for a
reasonable time after the fire has been extinguished to allow fire
officials to fulfill their duties, including making sure the fire
will not rekindle, and investigating the cause of the fire. See
id. at 510.
If any incriminating object comes into view during the
performance of the fireman's duty, it may be seized without a
warrant pursuant to the "plain view" doctrine. See Michigan v.
Clifford, 464 U.S. 287, 295 n.6 (1983). For that exception to the
warrant requirement to apply, the record must show (1) a prior
justification for the intrusion, (2) inadvertent discovery of
- 6 -
incriminating evidence, 3 and (3) immediate knowledge by the
official that the evidence he is observing is probably contraband.
See Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971) (it must
be "immediately apparent" to the officers that they have
discovered evidence of criminal activity).
Applying those principles to this case, it is readily
apparent, and appellant concedes, that Thomas was lawfully on the
premises fulfilling his duties as a firefighter when he discovered
the gun and suspected drugs. He not only had the right to enter
appellant's apartment without a warrant, he also had the duty to
ventilate the apartment by opening its windows and to search for
people or pets that might be inside. Thomas' intrusion clearly
was justified and the discovery of the incriminating evidence was
inadvertent. Moreover, Thomas immediately recognized that the
items he found were probably narcotics. See Texas v. Brown, 460
U.S. 730, 741-42 (1983) (the "immediately apparent" prong of the
"plain view" test requires only that the observer have probable
cause to believe that the evidence he sees is contraband).
Accordingly, the record discloses that no Fourth Amendment
violation occurred when Thomas "crossed the threshold" and
inadvertently discovered the contraband.
3
It has been held that this no longer is a requirement. See
Horton v. California, 496 U.S. 128, 140 (1990).
- 7 -
Appellant argues that even if Thomas was legitimately present
in the apartment, the police officers did not have the right to
enter the apartment without first securing a warrant. We
disagree.
After a fireman has observed evidence in plain view, he may
summon a police officer, who may enter the residence and seize the
evidence without first obtaining a warrant. See United States v.
Green, 474 F.2d 1385, 1390 (5th Cir.), cert. denied, 414 U.S. 829
(1973); Commonwealth v. Person, 560 A.2d 761, 766 (Pa. Super.
1989); State v. Bell, 737 P.2d 254, 257-58 (Wash. 1987). In
Green, the Court noted that where a lawful intrusion has already
occurred, and a seizure by an official has validly taken place as
a result of that intrusion, the invasion of privacy is not
increased by an additional officer entering the residence.
Once the privacy of a dwelling has been
lawfully invaded, to require a second officer
from another law enforcement agency arriving
on the scene of a valid seizure to secure a
warrant before he enters the premises to
confirm that the seized evidence is
contraband and to take custody of it is just
as senseless as requiring an officer to
interrupt a lawful search to stop and procure
a warrant for evidence he has already
inadvertently found and seized. The apparent
conflict between the Constitution and common
sense which the plain view doctrine has
reconciled is the same misconception which we
here seek to dispel.
Green, 474 F.2d at 1390 (holding that a federal law enforcement
officer did not need a search warrant where the evidence in
- 8 -
question had already been seized by a state deputy fire marshal)
(citation omitted).
Here, neither Thomas nor the police officers made a general
search of the apartment prior to obtaining a warrant to search.
The police officers merely followed in the footsteps of Thomas,
who was authorized to enter the residence to fulfill his duties as
a firefighter. "'[W]here firefighters have lawfully discovered
evidence of criminal activity under the plain view doctrine, it is
not necessary for [police] officers to obtain a warrant before
entering a residence to seize the evidence.'" Person, 560 A.2d at
768 (quoting Bell, 737 P.2d at 259). A warrant is not required in
these circumstances because the defendant no longer has a
reasonable expectation of privacy for that area of the apartment
where one official validly on the premises has made the lawful
discovery, and another is merely preserving the incriminating
evidence. See id.; Green, 474 F.2d at 1390; Steigler v. Anderson,
496 F.2d 793, 798 (3d Cir.), cert. denied, 419 U.S. 1002 (1974);
United States v. Brand, 556 F.2d 1312, 1313 (5th Cir. 1977), cert.
denied, 434 U.S. 1063 (1978); Bell, 737 P.2d at 259.
Reece and Sterling only entered those portions of the
apartment where Thomas had entered pursuant to his authority as a
firefighter. See id. (upon entering the residence, the police
officers "are not allowed to exceed the scope of the fire
fighters' earlier intrusion"). The exigency created by the fire
- 9 -
still existed when Sterling entered the building. The officers
did not search the apartment, but merely observed the cocaine that
was in plain view in the bedroom. It was immediately apparent to
all involved that the evidence was contraband, and Sterling
obtained a warrant before seizing the evidence. Accordingly, the
challenged evidence was not obtained as the result of an
unreasonable search and seizure.
For the reasons stated, the judgment of the trial court is
affirmed.
Affirmed.
- 10 -