COURT OF APPEALS OF VIRGINIA
Present: Judges Moon, * Willis and Elder
Argued at Richmond, Virginia
JOSEPH ALDEN LEWIS
OPINION BY
v. Record No. 1852-96-2 JUDGE JERE M. H. WILLIS, JR.
DECEMBER 2, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
James A. Luke, Judge
C. David Whaley (Anthony G. Spencer;
Morchower, Luxton & Whaley, on briefs), for
appellant.
Michael T. Judge, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Joseph Alden Lewis was convicted of possession of a
controlled substance, possession of a firearm while in possession
of a controlled substance and possession of a firearm by a
convicted felon. On appeal, he contends that the trial court
erred in denying his motion to suppress evidence seized from his
home by the police following their forcible entry to execute a
valid search warrant. Finding no error, we affirm the judgment
of the trial court.
In reviewing a trial court's denial of a motion to suppress,
we consider the evidence adduced at both the trial and the
suppression hearing, Spivey v. Commonwealth, 23 Va. App. 715,
*
When the case was argued Judge Moon presided. Judge
Fitzpatrick was elected Chief Judge effective November 19, 1997.
Judge Moon participated in the hearing and decision of this case
prior to his retirement on November 25, 1997.
721, 479 S.E.2d 543, 546 (1997), and place "[t]he burden [] upon
[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).
At approximately 5:00 p.m., on June 28, 1995, Officer King
of the Prince George County Police Department obtained a warrant
to search Lewis' residence in Hopewell for methamphetamine and
items associated with its distribution. King contacted members
of the Hopewell Police Department, the Petersburg Police
Department and the Virginia State Police to assist in the
execution of the warrant. The officers arrived at Lewis' house
at approximately 12:30 a.m. on June 29, 1995. An officer had
driven by Lewis' house about thirty minutes earlier to determine
whether Lewis was home and whether any dogs were on the premises.
The officer observed a white pickup truck believed to belong to
Lewis, and "thought [he] had seen a dog around the house." The
officers did not know who, if anyone, was at the house.
King, Virginia State Police Special Agents Miers and Riley
and at least two uniformed officers approached the front of the
house. At least two other officers approached the rear. King,
Miers and Riley had the words "police" or "State Police"
emblazoned on their outer garments. All three had long hair, and
both Miers and Riley were large men with beards. They wore their
badges on chains around their necks or displayed on their outer
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clothing.
Through a glass storm door, the officers at the front of the
house could see Lewis sitting on a couch, talking on a portable
telephone. The interior wooden door was open. The porch light
was on and the interior lights allowed them to see into the
living room. All of the officers were visible from the front
door. King testified that he did not know whether anyone else
was in the house at that time.
Miers testified that Riley knocked and announced, "State
Police. Search warrant." Miers then repeated, "State Police.
Search warrant. Open the door." Lewis stood up and asked, "How
do I know it's the police." The officers repeated their
identity, purpose and command "[n]umerous times. Five, ten,
maybe more." During the exchange between Lewis and the officers
on the porch, Miers heard what he believed was a large dog
growling. The noise prompted the officers to order Lewis to
"Control the dog. Secure the dog." Lewis told the officers that
he did not have a dog. The officers determined later that the
noise was due to Lewis' heavy breathing through a stoma.
After the passage of between forty to sixty seconds from the
initial announcement, Riley struck the door with a battering ram.
The door did not open, and Lewis walked toward it. Riley rammed
the door again, and Lewis backed up. When Riley rammed the door
a third time, it opened. The record is unclear whether Lewis
opened the door or the battering ram forced it open.
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"[P]rior to forcing entry into a dwelling," police must:
"(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).
"Although the requirement that police officers executing a search
warrant 'knock and announce' gives notice to the suspects of the
officers' presence and the suspect's possible impending
apprehension, it also discourages violence and volatile
confrontations and encourages orderly executions of search
warrants." Hargrave v. Commonwealth, 21 Va. App. 320, 323, 464
S.E.2d 176, 177 (1995) (citation omitted).
Lewis contends that the officers lacked probable cause to
believe that exigent circumstances required a forced entry. He
also argues that the forced entry was unreasonable given the
lateness of the hour, the physical appearance of the officers,
his request for further identification, and his lack of
suspicious activity.
A police officer's conduct in executing a 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." Grover v. Commonwealth,
11 Va. App. 143, 145, 396 S.E.2d 863, 864 (1990). See Wilson v.
Arkansas, 514 U.S. 927, 931 (1995). Moreover:
"[O]fficers are not required to possess
either the gift of prophecy or the infallible
wisdom that comes only with hindsight. They
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must be judged by their reaction to
circumstances as they reasonably appeared to
trained law enforcement officers to exist
when the decision to enter was made."
Commonwealth v. Woody, 13 Va. App. 168, 171, 409 S.E.2d 170, 172
(1991) (quoting Keeter v. Commonwealth, 222 Va. 134, 141, 278
S.E.2d 841, 846 (1981)).
This case does not involve an unannounced entry by police
officers. The officers knocked on the door, repeatedly
identified themselves as law enforcement officers, and stated
that they had come to execute a search warrant. Therefore, the
decision in this case turns upon the final requirement of the
announcement doctrine, whether the officers gave Lewis a
reasonable opportunity to open the door.
In Wynne v. Commonwealth, 15 Va. App. 763, 427 S.E.2d 228
(1993), several police officers arrived at a residence to execute
a warrant to search for drugs. Through the glass storm door, a
police officer "saw appellant in the living room trimming a
Christmas tree and a man seated at the dining room table." Id.
at 764, 427 S.E.2d at 229. After the officer knocked and
announced his presence, the appellant did not move and the man in
the dining room gave no indication that he heard the officer.
Id. After waiting about five seconds, officers entered the
residence through the unlocked storm door. Id. at 765, 427
S.E.2d at 229-30. In reversing the conviction, we concluded that
the five-second delay was unreasonable under the circumstances
and violated the Fourth Amendment. Id. at 767, 427 S.E.2d at
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231.
In so doing, we set no strict time limit for
the period of time the police must wait. A
myriad of circumstances could confront an
officer executing a search warrant. However,
the police must allow the occupant of the
dwelling to be searched a reasonable
opportunity to come to the door and answer
the knock, unless exigent circumstances arise
or the occupant denies admission.
Id. (emphasis added).
In Hargrave, officers executing a warrant to search for
illegal drugs "could see into the house and down the hallway
through the glass storm door" and "would be able to observe
whether the occupants were reasonably responding to their
notice." 21 Va. App. at 324, 464 S.E.2d at 178. Seeing no one,
the officers waited two to three seconds after they had knocked
and announced their presence and then entered the house. Id. We
reversed the conviction, finding that the officers had not waited
a reasonable time under the circumstances. However, we noted
that:
[T]he lapse of a reasonable amount of time
for occupants to respond after police
officers knock and announce their presence
may well be an exigent circumstance from
which the officers can infer that if
occupants are present in the residence, they
are not responding for some reason. Thus,
although the disposable nature of drugs is
not an exigent circumstance that alone
justifies a forced entry, the failure of the
occupants to respond within a reasonable time
after knocking and announcing will justify
the use of that degree of force necessary to
enter and execute a search warrant.
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Id. at 326-27, 464 S.E.2d at 179 (emphasis added).
Acquiescence to the command of a search warrant is not
discretionary. Police officers attempting execution of a valid
warrant need not coax compliance from an unwilling or
unresponding party. See Code § 19.2-56. Following the requisite
"knock and announcement," the failure of an occupant to admit law
enforcement officers after a reasonable opportunity to do so is
tantamount to a refusal and justifies forcible entry.
We agree with the trial court's finding that the officers
gave Lewis a reasonable opportunity to admit them. Forty to
sixty seconds elapsed from the time the officers "knocked and
announced" to their use of the battering ram. Cf. Wynne, 15 Va.
App. at 767, 427 S.E.2d at 231; Hargrave, 21 Va. App. at 327, 464
S.E.2d at 179. The officers announced that they were police
officers. They wore appropriate markings, badges and uniforms
identifying them as such. Lewis was awake and saw them. He
failed to cooperate and made no attempt to unlock the door until
the officers employed the ram.
Lewis was granted ample opportunity to surrender his privacy
voluntarily. He failed to do so, and the officers properly
considered his non-cooperation a refusal to permit their entry.
Accordingly, the officers acted reasonably in forcing the door
open.
Furthermore, the officers faced unknown and possibly
dangerous circumstances. They sought methamphetamine, a
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controlled substance. King testified that the amount discovered
could have been disposed of with a single toilet flush. The mere
fact that drugs are easily disposed of does not by itself justify
a forced entry. See Hargrave, 21 Va. App. at 326-27, 464 S.E.2d
at 179. However, the longer an occupant denies admittance, the
greater the need to enter the premises to prevent the destruction
of evidence. See id.
Society's interest in the safety of police officers when
they are "conducting [their] duties is of paramount importance."
Harris v. Commonwealth, 241 Va. 146, 151, 400 S.E.2d 191, 194
(1991). The officers did not know whether anyone else was in the
house. They were exposed to unknown perils while they waited
outside. Furthermore, they heard a "growl," described as coming
from "a large, unhappy dog." See Carratt v. Commonwealth, 215
Va. 55, 58, 205 S.E.2d 653, 655 (1974). The potential danger to
the officers heightened their need to gain immediate access to
Lewis' house and to secure the premises.
The judgment of the trial court is affirmed.
Affirmed.
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