COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Senior Judge Baker
Argued at Norfolk, Virginia
MICHAEL SIMMS, S/K/A
MICHAEL KENNETH SIMMS
MEMORANDUM OPINION * BY
v. Record No. 1477-98-2 JUDGE RICHARD S. BRAY
JULY 13, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Oliver A. Pollard, Jr., Judge
Joseph A. Sadighian, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Michael Kenneth Simms (defendant) was convicted in a bench
trial on indictments charging possession of cocaine with intent
to distribute, possession of marijuana with intent to
distribute, and two counts of possession of heroin with intent
to distribute. In a pretrial motion, defendant sought to
suppress certain physical evidence related to the offenses,
contending that the items were seized incident to an
unconstitutional “‘no knock’ entry” in execution of a search
warrant. After considering testimony, argument, and memoranda
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
of counsel, the court denied the motion, convicted defendant of
the offenses, and this appeal followed. Finding no error, we
affirm the decision of the trial court.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to
disposition of the appeal.
On review of a trial court’s denial of a motion to
suppress, we consider the evidence in the light most favorable
to the prevailing party below, the Commonwealth in this
instance, granting “all reasonable inferences fairly deducible
from that evidence.” Commonwealth v. Grimstead, 12 Va. App.
1066, 1067, 407 S.E.2d 47, 48 (1991). To prevail on appeal,
defendant “carries the burden to show . . . that the denial of
[the] motion . . . constitute[d] reversible error.” Motley v.
Commonwealth, 17 Va. App. 439, 440-41, 437 S.E.2d 232, 233
(1993).
I.
On August 13, 1996, at 7:15 p.m., Petersburg police
executed a search warrant at an apartment occupied by defendant
and his wife, Rosalind Moore. Before acting on the warrant,
Detective W.E. Wells directed Officer Stacy Lucas, then “in full
uniform,” to “knock on the door” of the residence and advise
Wells “by radio if [defendant] was at home.” Without objection,
Wells testified that Lucas complied with instructions and
notified him that “there was somebody home at the residence.”
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In response, Wells, accompanied by other officers, then
approached the front entrance to the apartment, intending to
execute the warrant.
Wells found “the front door [of the apartment] . . . open,
[but] the screen door . . . closed.” He observed Rosalind Moore
“standing in the front living room area with Officer Lucas,”
fifteen to eighteen feet from the screen door. Wells knocked
and announced, “police, search warrant.” Mrs. Moore “looked in
[Wells’] direction,” the two “look[ed] directly at each other,”
“made contact with each other.” Wells was dressed in a shirt
with “police wrote [sic] on the front.” When Mrs. Moore did not
respond, Wells “knocked several [more] times and stood there for
approximately ten [to fifteen] seconds,” awaiting admittance.
Again, Mrs. Moore made no effort to comply, and Wells opened the
unlocked screen door and entered the room.
II.
“‘Generally, police officers, before resorting to forced
entry into premises to be searched under warrant, must attempt
to gain admittance peaceably by announcing their presence,
identifying themselves as police officers and stating their
purpose.’” Commonwealth v. Viar, 15 Va. App. 490, 494, 425
S.E.2d 86, 88-89 (1992) (citation omitted). Thus, “[t]he
announcement doctrine . . . requires that the police, prior to
forcing entry into a dwelling: (1) knock; (2) identify
themselves as police officers; (3) indicate the reason for their
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presence; and (4) wait a reasonable period of time for the
occupants to answer the door.” 1 Gladden v. Commonwealth, 11 Va.
App. 595, 598, 400 S.E.2d 791, 793 (1991) (citations omitted)
(emphasis added).
However,
[a]cquiescence 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. 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.
Lewis v. Commonwealth, 26 Va. App. 113, 119, 493 S.E.2d 397, 400
(1997) (citation omitted). 2 The reasonableness of police conduct
is “‘judged in terms . . . within the meaning of the fourth
amendment to the United States Constitution and Article I, § 10
of the Constitution of Virginia,’” and the “‘circumstances as
they reasonably appeared to trained law enforcement officers
. . . when the decision to enter was made.’” Id. at 117-18, 493
S.E.2d at 399 (citations omitted).
1
The Commonwealth does not assert that exigent
circumstances justified a “no knock” entry in this instance.
See Richards v. Wisconsin, 520 U.S. 385, 394 (1997).
2
This Court has expressly declined to establish a “strict
time limit for the period . . . police must wait” for admission.
Wynne v. Commonwealth, 15 Va. App. 763, 767, 427 S.E.2d 228, 231
(1993).
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Relying on Wynne v. Commonwealth, 15 Va. App. 763, 427
S.E.2d 228 (1993), defendant argues that police in this instance
did not afford occupants of the apartment a “reasonable
opportunity to respond.” His argument, however, is belied by
the record.
When Wells and other officers arrived at the front entrance
to the apartment, only an unlocked screen door separated them
from the interior. Officer Lucas, already inside, was observed
talking with Mrs. Moore only fifteen feet from the doorway.
Wells, dressed in a shirt emblazoned with “Police,” knocked and
clearly identified himself and his purpose to Mrs. Moore. In
response, she “looked” directly at Wells, “made [eye] contact,”
but made no move to admit the officers. Wells again knocked
several times without compliance from Mrs. Moore and, after
waiting no less than ten seconds, opened the screen door and
entered the room. Under such circumstances, Wells reasonably
concluded that, after a proper “knock and announce,” Mrs. Moore
did not intend to admit him into the apartment and acted
appropriately.
Accordingly, the trial court properly denied defendant’s
motion to suppress, and we affirm the resulting convictions.
Affirmed.
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