COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia
CHRISTOPHER MICHAEL POWELL
MEMORANDUM OPINION * BY
v. Record No. 2419-01-3 JUDGE RUDOLPH BUMGARDNER, III
SEPTEMBER 24, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge Designate
Gregory W. Smith for appellant.
Marla Graff Decker, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Christopher Michael Powell appeals his conviction of
possession of cocaine with intent to distribute. He contends
the trial court erred by admitting evidence seized when police
executed a search warrant after an unannounced entry.
Concluding the officers had reasonable suspicion to believe that
announcing their presence would be dangerous, we affirm.
The defendant must show reversible error when the evidence
is viewed most favorably to the Commonwealth. Fore v.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980).
Investigator J.T. Loyd obtained a search warrant for the
defendant's apartment based on information supplied by a
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
reliable and confidential informant. The informant had observed
the defendant selling cocaine from that residence. The
informant also advised he had seen a handgun in the defendant's
residence. He made the observations within 48 hours of the
police executing the warrant. The investigator's affidavit for
the search warrant did not mention the presence of the handgun,
and the warrant did not address unannounced entry.
Wilson v. Arkansas, 514 U.S. 927, 934-36 (1995), held
police generally must knock, identify themselves, and state
their purpose when executing a search warrant. However, police
may enter forcibly when they 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 by, for
example, allowing the destruction of evidence." Richards v.
Wisconsin, 520 U.S. 385, 394 (1997).
In Spivey v. Commonwealth, 23 Va. App. 715, 479 S.E.2d 543
(1997), 1 a reliable informant told the police he had observed the
defendant distribute cocaine in her residence within the last 72
hours. She distributed drugs daily and "may possibly be in
possession of . . ." and was "known to have . . ." a .38 caliber
1
Spivey was decided before Richards v. Wisconsin
established that police needed reasonable suspicion, not
probable cause, to justify a "no-knock" entry. Henry v.
Commonwealth, 32 Va. App. 547, 552, 529 S.E.2d 796, 799 (2000),
adopted reasonable suspicion as the proper standard to justify
such entry.
- 2 -
handgun. Id. at 719, 479 S.E.2d at 545. Spivey's son supplied
her with cocaine and frequently stayed at her residence. The
son had been arrested ten days earlier for shooting into an
unoccupied vehicle. When executing the search warrant, the
police did not know his whereabouts. This Court concluded the
"no knock" entry was justified because the police knew two
firearms were possibly present in the residence. Id. at 722-23,
479 S.E.2d at 547.
The facts in Spivey constituted probable cause that
announcing entry increased the peril to the officers executing
the warrant. In this case, the facts more strongly support a
conclusion that the defendant was armed. The information was
more current, and it positively placed a gun inside the place to
be searched. When the police execute a search warrant for
narcotics, there is a possibility of "sudden violence or frantic
efforts to conceal or destroy evidence." Michigan v. Summers,
452 U.S. 692, 702 (1981) (footnote omitted); United States v.
Grogins, 163 F.3d 795, 798 (4th Cir. 1998). The officers in
this case had a current report of the presence of narcotics and
a firearm. 2 If the possibility of firearms constituted probable
2
The defendant argues that Investigator Loyd testified, "I
didn't feel that this search warrant had any more danger
possibilities than any other search warrant we do." However,
the standard is objective not subjective. Spivey, 23 Va. App.
at 722, 479 S.E.2d at 547.
- 3 -
cause in Spivey, the actual observation of one would constitute
reasonable suspicion under Richards. Accordingly, we affirm.
Affirmed.
- 4 -