COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Humphreys
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 1761-02-1 JUDGE ROBERT J. HUMPHREYS
DECEMBER 23, 2002
KEVIN FULLER PURNELL
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford, Taylor, Jr., Judge
Eugene Murphy, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellant.
Ronald L. Smith for appellee.
The Commonwealth of Virginia appeals a decision of the trial
court granting Kevin Fuller Purnell's motion to suppress evidence
pertaining to his indictment for possession of more than one-half
ounce, but less than five pounds, of marijuana, in violation of
Code § 18.2-248.1. The Commonwealth contends the trial court
erred in finding that the police officers' entry into Purnell's
residence was unreasonable and amounted to a violation of his
Fourth Amendment rights. For the reasons that follow, we reverse
the decision of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
In reviewing the ruling of a trial court on a motion to
suppress, we will "consider the evidence in the light most
favorable to the prevailing party below." Commonwealth v. Rice,
28 Va. App. 374, 377, 504 S.E.2d 877, 878 (1998).
At approximately 7:46 a.m., on October 26, 2001, Police
Sergeant Roger Clements heard a radio dispatch advising that "a
resident or a neighbor" had contacted the police department
"indicating that [police] would possibly need to check on the
welfare of the person who lived at [1220 West Queen Street]." 1
Clements knew "approximately who [the caller] was from some
previous dealings," but did not "know anything about [her]
background." Police tried to contact the caller to obtain
additional information, but "she didn't want to talk to anybody."
Officer Steve Nemetz was the first to arrive on the scene.
Officer Nemetz remained outside the residence from about
7:50 a.m. until approximately 8:45 a.m. At that time, Nemetz's
shift ended and Officers Patterson and Cook arrived to relieve
him. Sergeant Clements, who was the supervisor of patrol that
morning, arrived at approximately 9:00 a.m., but left for a few
moments to "check[] on some other supervisory things." He
returned at about 9:30 a.m.
1
Prior to this incident, Sergeant Clements had been
assigned to "vice narcotics for the better part of five years."
He had left that department less than one week before October
26, 2001.
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During the time from 7:50 a.m. to 9:30 a.m., the officers
walked around the residence and "beat on the door[s]," but
received no response. They found that the doors to the residence
were locked, and high bushes surrounding the residence made it
impossible for them to "see anything" inside the house. However,
they observed that the living room window was "open[] just enough
to hear some[]" sound coming from either a "radio or television"
inside the residence.
The officers also observed that the door to the detached
garage was partially open. A car was parked in the driveway, with
the passenger door ajar. The officers saw that there was
"expensive electronic equipment inside." Sergeant Clements
testified "[t]hat looked odd that somebody would just leave a car
door open and leave that available for somebody, and it certainly
wasn't in the process of being stolen." Officers ran a check of
the license plate number and found that the car was registered to
someone named "Bowditch from Newport News."
At the same time, officers learned that the residence was
rented to Purnell. They then had "headquarters" try to contact
Purnell by calling the phone number to the residence, as well as
his cellular phone. The officers received no answer from either
telephone.
Ultimately, officers contacted the rental property manager
and obtained a key to the residence. Officer Clements testified
that the officers had no information of criminal activity and that
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they were not investigating criminal activity. However, based on
the "totality of all of the circumstances," they decided to enter
the residence to "check on [Purnell's] welfare." Officer Clements
stated that they thought Purnell might have been "ill" or "dead."
Nevertheless, they did not call for medical assistance prior to
entering the house, because emergency personnel were "just several
blocks down the street" and could have "respond[ed] . . . within
seconds."
Officers Patterson and Cook first entered the residence
between 9:00 a.m. and 9:30 a.m. As they were walking out of the
residence, at approximately 9:30 a.m., Sergeant Clements returned.
They told him that they had not found Purnell, but had "found some
other things." They also told him that they had not looked
upstairs for Purnell, nor had they looked underneath the beds, or
under any piles of clutter or clothing to determine if Purnell's
body was obscured from view. The officers then re-entered the
residence. That search lasted approximately five to ten minutes.
They did not find Purnell, and found no evidence that anyone had
been injured in the home. However, Sergeant Clements observed a
"gallon size container of what looked to be" "dried" and
"compressed" marijuana in the kitchen. In the spare bedroom he
found what appeared to be "marijuana growing."
"[A]s soon as [the officers] found that there [were] no
bodies or anybody else inside of [the] residence for checking on
the welfare," they left the residence and "froze the house so that
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nobody could enter." Sergeant Clements then called the Special
Investigations Unit, which obtained a search warrant for the
residence and seized the marijuana.
Purnell was subsequently indicted for possession, with intent
to distribute, more than one-half ounce, but less than five pounds
of marijuana, in violation of Code § 18.2-248.1. Prior to trial,
Purnell filed a motion to suppress the evidence contending that
the officers' entry into his home violated his "constitutional
rights."
After a hearing on the motion, the trial court held:
I'm going to sustain the motion to
suppress . . . . There are two problems
with the case, and I certainly don't believe
this was pretest [sic]. I believe that the
officers involved were doing what they
thought was the right thing.
The problem with the case is when Officer
Nemetz went up and couldn't see anything and
went all around the house, I don't think
they were justified under the [F]ourth
[A]mendment to go any further than that.
I also have some concern about the extent of
the emergency based on what was reported.
And, again, not having any other witness to
give anymore information to the officers, I
guess whoever made the call, that in my view
supports the motion to suppress.
On appeal, the Commonwealth contends the trial court erred in
finding the officers violated the Fourth Amendment when they
entered Purnell's residence without a search warrant. We agree.
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In reviewing a trial court's ruling on a motion to suppress
[t]his Court is "bound by the trial court's
findings of historical fact unless 'plainly
wrong' or without evidence to support them
and we give due weight to the inferences
drawn from those facts by resident judges
and local law enforcement officers."
However, whether a defendant is seized in
violation of the Fourth Amendment is a
question that is reviewed de novo on appeal.
Davis v. Commonwealth, 37 Va. App. 421, 429, 559 S.E.2d 374, 378
(2002) (quoting Neal v. Commonwealth, 27 Va. App. 233, 237, 498
S.E.2d 422, 424 (1998)). Furthermore, the burden is upon the
Commonwealth to show, considering the evidence in a light most
favorable to Purnell, granting to him all inferences fairly
deducible therefrom, that the denial constituted reversible error.
Reynolds v. Commonwealth, 9 Va. App. 430, 436, 388 S.E.2d 659, 662
(1990).
It is axiomatic that the "physical entry of
the home is the chief evil against which the
wording of the Fourth Amendment is
directed." United States v. United States
District Court, 407 U.S. 297, 313 (1972).
And a principal protection against
unnecessary intrusions into private
dwellings is the warrant requirement imposed
by the Fourth Amendment on agents of the
government who seek to enter the home for
purposes of search or arrest. See Johnson
v. United States, 333 U.S. 10, 13-14 (1948).
It is not surprising, therefore, that the
[United States Supreme] Court has
recognized, as "a 'basic principle of Fourth
Amendment law[,]' that searches and seizures
inside a home without a warrant are
presumptively unreasonable." [Payton v. New
York, 445 U.S. 573, 586 (1980)].
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Welsh v. Wisconsin, 466 U.S. 740, 748-49 (1984). However, in
considering whether to exclude evidence based upon this rule, we
are constantly reminded that the Fourth Amendment does not
forbid all searches and seizures, only those that are
unreasonable. See Elkins v. United States, 364 U.S. 206, 222
(1960); Verez v. Commonwealth, 230 Va. 405, 410, 337 S.E.2d 749,
752 (1985). Thus, the United States Supreme Court has carved
out a few delineated exceptions to the warrant requirement.
United States District Court, 407 U.S. at 318. One such
exception is known as the "emergency doctrine." See Reynolds, 9
Va. App. at 436-37, 388 S.E.2d at 663-64; see also Mincey v.
Arizona, 437 U.S. 385 (1978).
The "emergency doctrine" is grounded in the consideration
that "the duty of the police extends beyond the detection and
prevention of crime, to embrace also an obligation to maintain
order and to render needed assistance." Barrett v. Commonwealth,
18 Va. App. 773, 777, 447 S.E.2d 243, 245 (1994), rev'd on other
grounds by, 250 Va. 243, 462 S.E.2d 109 (1995). The exception is
expressed in terms of a "reasonably perceived 'emergency'
requiring immediate entry as an incident to the service and
protective functions of the police as opposed to, or as a
complement to, their law enforcement functions." United States v.
Moss, 963 F.2d 673, 678 (4th Cir. 1992). Accordingly, courts "'do
not question the right of the police to respond to emergency
situations. [Indeed,] [n]umerous state and federal [courts] have
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recognized that the Fourth Amendment does not bar police officers
from making warrantless entries and searches when they reasonably
believe that a person within is in need of immediate aid.'"
Reynolds, 9 Va. App. at 436-37, 388 S.E.2d at 663 (quoting Mincey,
437 U.S. at 392).
In order to justify an intrusion under the "emergency
doctrine," a "'police officer must be able to point to specific
and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion.'"
Id. (quoting State v. Resler, 306 N.W.2d 918, 922 (Neb. 1981)).
Thus, to determine whether such an intrusion was properly
warranted, the facts will be "'judged against an objective
standard.'" Id. (quoting Resler, 306 N.W.2d at 922).
Here, a citizen contacted police and told them that they
should check on the "welfare" of the occupant of the residence at
issue. Officers called the citizen back and tried to obtain
additional information, but were unable to do so because the
citizen refused to speak with them further.
The officers then responded immediately to the scene. Over
the course of the next approximately two hours, they canvassed the
outside of the house, knocked on the door, and after determining
the identity of the resident as Purnell, tried to contact Purnell
by his home phone and his cellular phone. All of their attempts
were to no avail.
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During this time, officers observed 1) that the doors to the
residence were locked; 2) that the television and/or a radio was
on inside the home; 3) that a car, not belonging to Purnell, was
in the driveway of the residence with the door ajar; 4) that the
open car was filled with "expensive electronic equipment"; and, 5)
that the garage door was partially open. Based upon the
"totality" of this information, the officers decided to enter the
home in order to determine whether Purnell was inside and in need
of emergency assistance. Accordingly, the officers contacted the
property manager and requested a key to enter the residence. Once
the property manager arrived at the scene with the key, they were
able to enter.
Considering the totality of these circumstances, and most
importantly, the trial court's factual finding that the actions of
the officers here were not pretextual, we find that the officers'
warrantless entry into the residence was constitutionally
permissible pursuant to the emergency exception to the warrant
requirement. The information received by the officers reasonably
led them to believe that Purnell's "welfare" was at risk and that
he was thus, in need of assistance. Their thorough investigation
of the situation, including their inability after several attempts
to obtain a response from Purnell and/or any occupant of the
residence, reinforced this conclusion.
Furthermore, the fact that it was later determined that no
emergency assistance was required is of no moment, because at the
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time the officers entered Purnell's residence, the circumstances
reasonably warranted their belief that the occupant was in need of
immediate assistance. See State v. Hedley, 593 A.2d 576, 582-83
(Del. Sup. 1990) (holding the fact that no emergency existed in
actuality did not affect the emergency exception analysis); see
also Reynolds, 9 Va. App. at 437, 388 S.E.2d at 664 ("Police
officers are not required to possess either the gift of prophecy
or the infallible wisdom that comes with hindsight. Their conduct
in making a warrantless search must be judged by the circumstances
confronting the officers at the time they act.").
Likewise, contrary to Purnell's contention, nothing in the
speed or character of the officers' conduct belied their stated
belief that an emergency existed. In fact, the evidence
demonstrated that the officers took this matter seriously from the
first instance. During the approximate two hour period before
they entered the home, the officers were consistently and busily
attempting to investigate the matter further and determine a
resolution to the problem. Neither the lapse of time, nor the
investigation dissipated the potential urgency of the situation.
See State v. Monroe, 611 P.2d 1036, 1039-40 (Idaho 1980), vacated
on other grounds, 451 U.S. 1014 (1981), on remand, 645 P.2d 363
(1982) (holding that officers' one hour delay in entering
residence was not critical under the emergency doctrine analysis
where evidence demonstrated emergency still existed). Instead,
these factors further justified the officers' belief, at the time
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they entered the residence, that an individual inside was in need
of emergency assistance. See United States v. Jones, 635 F.2d
1357, 1362 (8th Cir. 1980) ("When the police have a reasonable
suspicion that someone is injured or that the public safety is in
jeopardy, but refrain from taking immediate action in an effort to
confirm or deny the suspicion, and then act once they have
received no indication that the danger has been dissipated, the
waiting period does not defeat the applicable exception to the
warrant rule."); see also People v. Brooks, 289 N.E.2d 207 (Ill.
App. 1972) (refusing to suppress evidence pursuant to the
emergency doctrine, noting that "the very uncertainty created by
the totality of all [the] circumstances" can provide a
justification for police to take immediate action). These factors
also established that the officers did not act precipitously, but
acted with reasonable deliberation under the circumstances, by
investigating the information they had received, and by making
careful preparation for the least possible intrusive entry into
the residence. See Reynolds, 9 Va. App. at 438, 388 S.E.2d at 664
(quoting State v. Fisher, 686 P.2d 750, 761 (Ariz. 1984))
("'Police officers must not be doubted because they exercise
caution and take the time to evaluate the need for a warrantless
entry. Were we to hold otherwise, we would encourage precipitous
and hasty entries and discourage pre-entry investigation and
reflection.'").
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Because we find that the officers' entry into Purnell's
residence was constitutionally permissible pursuant to the
emergency exception to the warrant requirement, we reverse the
ruling of the trial court. See Mincey, 437 U.S. at 393
(recognizing that where a warrantless entry is proper under the
emergency exception, the police may seize evidence that is in
plain view).
Reversed.
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Elder, J., dissenting.
I would assume without deciding that Virginia law permits
law enforcement personnel to enter a private residence without a
warrant under an emergency aid doctrine and would conclude the
evidence is insufficient to establish the need for an
"immediate" entry to render aid to someone inside. Therefore, I
respectfully dissent.
I am aware of no controlling legal authority approving the
warrantless entry of a private residence by law enforcement
personnel in a community caretaking or emergency aid context
under circumstances totally divorced from the detection of
crime. Cf. Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct.
2408, 2413, 57 L.Ed.2d 290 (1970) (applying emergency aid
doctrine to allow police entry of home after notification by
resident of possible crime therein); Wood v. Commonwealth, 27
Va. App. 21, 27-28, 497 S.E.2d 484, 487 (1998) (en banc)
(plurality op.) (noting neither United States Supreme Court nor
any Virginia appellate court has applied the community caretaker
doctrine to uphold entry of a private residence); Reynolds v.
Commonwealth, 9 Va. App. 430, 435-39, 388 S.E.2d 659, 662-64
(1990) (applying emergency doctrine as type of exigent
circumstance permitting entry of residence in course of
investigating burglary and confirming safety of residents where
police had already apprehended burglar who admitted prior entry
into residence). Because I conclude the evidence here was
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insufficient to support such an entry, I merely assume without
deciding that circumstances could exist under which such an
entry would be reasonable in a Fourth Amendment context.
As the majority acknowledges, "It is axiomatic that the
'physical entry of the home is the chief evil against which the
wording of the Fourth Amendment is directed.'" Welsh v.
Wisconsin, 466 U.S. 740, 748-49 (1984) (quoting United States v.
United States District Court, 407 U.S. 297, 313 (1972)).
Accordingly, in the criminal context, it is well established
that the warrantless, nonconsensual entry of a private residence
requires proof of both probable cause and exigent circumstances,
which include the need "to prevent imminent removal or
destruction of evidence, to arrest fleeing criminal suspects, or
to avoid imminent threats of death or bodily harm." United
States v. Moss, 963 F.2d 673, 678 (4th Cir. 1992).
Jurisdictions which permit entry of a private residence
under an emergency aid doctrine require proof of a similar
exigency to justify the entrance. See id.; State v. Davis, 497
N.W.2d 910, 921 (Mich. 1993) ("not[ing] that the levels of
intrusion the police make while [inventorying a car and entering
a dwelling] are different" and that, although these activities
"may both be categorized as 'caretaking functions,' it does not
follow that both types of activities should be judged by the
same standard"); see also, e.g., 3 Wayne R. LaFave, Search and
Seizure § 6.6(a) (3d ed. 1996 & 2003 Supp.). "To invoke this
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so-called 'emergency doctrine,' the person making the entry must
have had an objectively reasonable belief that an emergency
existed that required immediate entry to render assistance or to
prevent harm to persons . . . within." Moss, 963 F.2d at 678
(emphasis added); see State v. Nemeth, 23 P.3d 936, 944 (2001)
(in case involving suicide threat, holding entry permitted to
render "immediate aid" or "assistance or protection from serious
harm" (emphases added)); see also Reynolds, 9 Va. App. at
436-37, 388 S.E.2d at 663-64 (to permit warrantless entry under
emergency doctrine in course of investigating burglary,
requiring "'reasonabl[e] belie[f] that a person within is in
need of immediate aid'" (quoting State v. Resler, 306 N.W.2d
918, 922 (Neb. 1981) (quoting Mincey, 437 U.S. at 392, 98 S. Ct.
at 2413)) (emphasis added)). See generally, LaFave, supra,
§ 6.6(a), at 391-93.
Here, although the evidence supported the trial court's
finding that Sergeant Clements' decision to enter defendant's
residence was not pretextual, I would hold it also compels the
conclusion that neither Sergeant Clements nor the officers he
supervised could have held "an objectively reasonable belief
that an emergency existed that required immediate entry to
render assistance or to prevent harm to persons . . . within."
See Moss, 963 F.2d at 678 (emphasis added).
The evidence in the record establishes only that the
officers responded to defendant's residence based on a telephone
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call indicating the officers "possibly would need to check on
[defendant's] welfare" because defendant "couldn't be reached by
home phone or cell phone." The caller did not indicate for how
long she had been unable to reach defendant by phone, and she
set out no other basis for her concern. When the police tried
to contact her to obtain further information, she refused to
speak with them. When the officers arrived at defendant's home,
they noticed the door to the detached garage was open but gave
no indication that anything inside the garage appeared amiss.
They also noticed the door to a car parked in the driveway was
partially open and that expensive electronic equipment was
visible inside. At some point they obtained information that
defendant was "some type of a D.J. or had something to do with
music." Although the car was registered to someone other than
appellant, Sergeant Clements observed merely that the open car
door "looked odd" and said "[the electronic equipment] certainly
wasn't [in the process of] being stolen."
Although the garage and car doors were open, the residence
itself was locked, and the officers received no response to
their repeated knocks and telephone calls. The officers were
unable to see inside the house due to the presence of thick
bushes in front of the windows, and they gained no additional
information, while present at the house for a period of less
than two hours, which tended to indicate that anyone inside the
residence needed immediate assistance or was at risk of serious
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harm. The officers heard an unidentified noise, later
determined to be a television, emanating from an open window in
the home's living room, but they did not describe the noise as
including raised voices, screams, moans or any other sounds
indicative of distress.
I would hold this information was insufficient to provide
the police with a reasonable belief that the warrantless entry
of defendant's residence was necessary to render "immediate aid"
or "protect[] [defendant or another] from serious harm." Id.
(emphases added); see State v. Carlson, 548 N.W.2d 138, 142-43
(Iowa 1996); Nemeth, 23 P.2d at 941-45 (upholding warrantless
entry where police received report that defendant threatened
suicide during course of argument with boyfriend and when police
arrived at defendant's house, she appeared "very distraught and
emotional" and said "nobody cared about her"); Duquette v.
Godbout, 471 A.2d 1359, 1361-63 (R.I. 1984) (upholding
warrantless entry of apartment where police encountered woman
screaming and banging on door and woman said she believed her
sixteen-year-old daughter was inside and that she had heard
screaming in the building); see also LaFave, supra, at 396 &
n.30 (noting that entry to render aid may be permissible "to
seek an occupant reliably reported as missing" and citing cases
involving persons missing "for some time" although they were
ordinarily seen or heard from frequently).
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For these reasons, I would affirm the trial court's
decision to grant defendant's motion to suppress, and I
respectfully dissent.
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