COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Senior Judge Hodges
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 0467-99-4 JUDGE LARRY G. ELDER
JULY 20, 1999
CARLOS F. MARTINEZ
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
F. Bruce Bach, Judge
Virginia B. Theisen, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellant.
David Bernhard (Cheryl Gardner; Bernhard &
Gardner, on brief), for appellee.
Carlos F. Martinez (defendant) stands indicted for two
counts of assault and battery on a police officer. The
Commonwealth appeals a pretrial ruling of the Fairfax County
Circuit Court (trial court) granting defendant’s motion to
suppress all evidence resulting from an allegedly illegal entry
into defendant’s home. On appeal, the Commonwealth contends the
trial court erroneously held (1) that no exigent circumstances
justified the entry and (2) that the officer subjected defendant
to a custodial interrogation without first Mirandizing him. We
affirm the trial court’s ruling granting the motion to suppress.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I.
FACTS
On the evening of October 19, 1998, Police Officer Kristi
Denham received information that, during a 911 call, a man and
woman were screaming in the background and that the woman
sounded as if she was out of breath before the phone was
disconnected.
Denham testified that she had responded to a minimum of one
hundred domestic violence calls and that she knew, based on her
experience and specialized training, that domestic violence
situations tend to be emotional, high stress encounters. Her
goal was to keep the suspected disputants apart so as to ensure
their safety and the safety of others.
Officer Denham arrived on the scene, and her back-up
officer, Officer Vickery, arrived about thirty seconds later.
Officer Denham saw Milvia Galeano, defendant’s wife, standing in
the front yard crying. Galeano had a “fresh” red mark on her
neck and was holding her neck and pointing toward defendant, who
was standing in the front door of the house. Denham spoke
briefly to Galeano, who spoke Spanish and could not communicate
very well in English. Officer Denham interpreted Galeano’s
statements and actions to mean that defendant was the cause of
her injury and her emotional upset. Although Officer Vickery
spoke Spanish and could have communicated more easily with
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Galeano, Denham chose to approach defendant before attempting,
through Vickery, to obtain further information from Galeano.
Denham testified that the storm door was open several
inches and that she thought defendant, who had a set of keys in
his hand, was “getting ready to exit the house.” As Denham
approached, she noticed two children inside the house with the
defendant, and Denham became concerned for their safety, as well
as the safety of Galeano, herself and Officer Vickery. Denham
said her training taught her to be conscious of the risk of a
parent taking his children hostage in order to prevent arrest or
the risk that he would obtain a weapon with which to threaten
those outside the house. Denham did not believe at that point
that she had sufficient cause to arrest defendant or pat him
down for weapons, but she wanted to question him about the
possible domestic dispute and said she did not consider him free
to leave.
Without requesting permission from defendant or Galeano,
Denham opened the storm door and walked a few feet inside the
door. Prior to Denham’s entry, defendant was “calm in that he
wasn’t yelling [or] . . . screaming.” He was not threatening
the children or anyone else, and Denham saw no weapons. The
only behavior Denham thought was unusual or “strange” was that
defendant refused to look at her, looking instead at the ground
and shifting his eyes back and forth, which she interpreted to
mean “he was looking for an avenue of escape.”
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Denham, viewing the keys in defendant’s hand as a potential
weapon, took them out of his hand and tossed them onto the
nearby couch. When she asked him twice what had happened, he
told her both times to ask the children. In a more
authoritative voice, Denham told him that he needed to tell her
what happened. He then said that he and his wife had an
argument over the use of the telephone and that, during the
argument, “he somehow hit her neck.” Denham advised him that
she was placing him under arrest for domestic assault. Denham
said he refused to cooperate, and he subsequently was charged
with assault and battery on both Denham and Vickery.
Galeano testified at the motion hearing with the aid of an
interpreter. Galeano explained that she and defendant had had
“an altercation” that “wasn’t anything great” and that her
ten-year-old son called 911. She said she was outside when the
police arrived because she was going to make a phone call.
Galeano testified that, in response to Denham’s questions,
Galeano told her three times that “everything was calm.”
Galeano denied that she was crying when Denham arrived. When
Officer Vickery arrived on the scene, Denham “went up to the
door [and] . . . told [defendant] to put his hands up.”
Defendant then asked Denham three times to “let [him] explain.”
Galeano denied that defendant was responsible for the red mark
on her neck and said that Officer Hall, “who . . . offered . . .
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to take [her] to prison,” caused those marks without
provocation. 1
Galeano admitted that defendant had been convicted for
assaulting her on three prior occasions. No evidence indicated
that Officer Denham was aware of this fact when she responded to
the call. Further, no evidence indicated that appellant
previously had harmed or threatened to harm his children.
The trial court granted the motion to suppress, ruling that
no exigent circumstances existed to justify Denham’s warrantless
entry into defendant’s home and that defendant was subjected to
a custodial interrogation without benefit of Miranda warnings.
II.
ANALYSIS
At a hearing on a defendant’s motion to suppress, the
Commonwealth has the burden of proving that a warrantless search
or seizure did not violate the defendant’s Fourth Amendment
rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380
S.E.2d 656, 659 (1989). On appeal, 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). “[W]e are bound by the trial court’s findings of
historical fact unless ‘plainly wrong’ or without evidence to
1
No evidence in the transcript of the motion hearing
further identified Officer Hall or explained his involvement.
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support them[,] and we give due weight to the inferences drawn
from those facts by resident judges and local law enforcement
officers.” McGee v. Commonwealth, 25 Va. App. 193, 198, 487
S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United
States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d
911 (1996)). However, we review de novo the trial court’s
application of defined legal standards such as probable cause
and reasonable suspicion to the particular facts of the case.
See Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663.
The Fourth Amendment protects people from unreasonable
searches and seizures. U.S. Const. amend. IV. “In terms that
apply equally to seizures of property and to seizures of
persons, the Fourth Amendment has drawn a firm line at the
entrance to the house. Absent exigent circumstances, that
threshold may not reasonably be crossed without a warrant.”
Payton v. New York, 445 U.S. 573, 590, 100 S. Ct. 1371, 1382, 63
L. Ed. 2d 639 (1980) (emphasis added). “Among the circumstances
accepted as providing ‘exigent circumstances’ for a warrantless
search [or seizure in a private residence] are those where a
true ‘emergency’ exists.” Reynolds v. Commonwealth, 9 Va. App.
430, 436, 388 S.E.2d 659, 663 (1990). As the United States
Supreme Court has observed,
[w]e do not question the right of the police
to respond to emergency situations. . . .
[T]he Fourth Amendment does not bar police
officers from making warrantless entries and
searches when they reasonably believe that a
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person within is in need of immediate
aid. . . . “The need to protect or preserve
life or avoid serious injury is
justification for what would be otherwise
illegal absent an exigency or emergency.”
. . . [A] warrantless search must be
“strictly circumscribed by the exigencies
which justify its initiation” . . . .
Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408, 2413, 57
L. Ed. 2d 290 (1978) (emphases added; citations and footnotes
omitted).
In each such case, the court must determine “whether the
law enforcement officers had probable cause at the time of their
warrantless entry to believe that cognizable exigent
circumstances were present.” Keeter v. Commonwealth, 222 Va.
134, 141, 278 S.E.2d 841, 846 (1981) (entry to prevent
destruction of evidence); see Oliver v. United States, 656 A.2d
1159, 1166 (D.C. 1995) (equating “reasonable belief” language in
Mincey with “probable cause”). We evaluate the existence of
probable cause under a standard of objective reasonableness.
See, e.g., Whren v. United States, 517 U.S. 806, 813, 116 S. Ct.
1769, 1774, 135 L. Ed. 2d 89 (1996). “The officers are not
required to possess either the gift of prophecy or the
infallible wisdom that comes only with hindsight. They 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.” Keeter, 222 Va. at 141, 278 S.E.2d
at 846.
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Here, regardless of whether we view the facts in the light
most favorable to the Commonwealth or to the defendant, 2 the
outcome is the same. Even under the Commonwealth’s version of
the facts, Officer Denham lacked a sufficient legal basis for
entering defendant’s home without a search or arrest warrant.
Although a potentially volatile domestic situation existed in
this case, the facts known to Officer Denham did not provide
probable cause to believe the officer’s “immediate” entry into
defendant’s home was necessary to “protect or preserve life or
avoid serious injury” to Galeano or her children. Galeano
herself was outside the home with Officer Vickery while
defendant was inside the home. Although the officer’s
experience and training are relevant to interpreting the
dynamics of a potentially dangerous situation, they cannot be
the sole basis for exigent circumstances without evidence to
substantiate the officer’s concerns. The record contains no
evidence that defendant was armed, raised his voice, or made any
threats toward Galeano, his children or the officers. In fact,
2
The Commonwealth argues that the trial court ruled on the
motion to suppress without considering Galeano’s testimony and
contends that Galeano’s testimony was inherently incredible.
The trial court did not--and was not required to--make clear
whether it believed the testimony of Officer Denham or the
testimony of Milvia Galeano, or some combination of the two.
However, it appears to have assumed, for the purpose of its
ruling, that Galeano’s testimony was incredible and to have
found under the version of the facts most favorable to the
Commonwealth that no exigent circumstances justified Denham’s
warrantless entry.
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the evidence indicates that, prior to Officer Denham’s entry,
appellant was calm and, at most, was “looking for an avenue of
escape.” Defendant’s mere presence in his own home with his two
children following some sort of altercation with his wife did
not provide the officers with probable cause to believe that
immediate entry was necessary to prevent death or serious
injury. To hold otherwise would be to create a blanket
exception to the warrant requirement in cases involving domestic
disputes. We decline the Commonwealth’s invitation to do so.
Compare Oliver, 656 A.2d at 1168 (holding that “person’s status
as a kidnapping victim places him or her in continuing danger of
harm at the hands of his or her captor,” permitting immediate
entry of residence under emergency exception to warrant
requirement, “even if the victim apparently is being well
treated”); State v. Applegate, 626 N.E.2d 942, 943-44 (Ohio
1994) (holding that police who responded to 911 call from wife
reporting domestic dispute and asking that husband be removed
from the home were justified in entering house under emergency
exception to warrant requirement to ascertain welfare of wife
after they arrived outside residence and heard an angry male
voice and the sound of furniture being turned over).
Because we affirm the trial court’s ruling granting the
motion to suppress all statements and evidence based on the
officer’s illegal entry into the defendant’s home, we do not
reach the issue of whether his statements about hitting his wife
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should have been suppressed as the product of a custodial
interrogation for which he received no Miranda warnings.
For these reasons, we affirm the ruling of the trial court
and remand for further proceedings consistent with this opinion.
We make no comment on the impact of this ruling on defendant’s
two pending charges for assault and battery of a law enforcement
officer as no such question is before us on appeal.
Affirmed and remanded.
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