COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Huff and Senior Judge Annunziata
UNPUBLISHED
Argued at Lexington, Virginia
LYNN WINSTON WHEELER
MEMORANDUM OPINION* BY
v. Record No. 1469-13-3 JUDGE GLEN A. HUFF
DECEMBER 2, 2014
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
F. Patrick Yeatts, Judge
M. Kevin Bailey (M. Kevin Bailey, PLLC, on briefs), for appellant.
Elizabeth C. Kiernan, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Lynn Winston Wheeler (“appellant”) appeals his conviction of possession of a Schedule I
or II controlled substance, in violation of Code § 18.2-250. Following a bench trial in the Circuit
Court of the City of Lynchburg (“trial court”), appellant was sentenced to three years’
incarceration in the Department of Corrections. On appeal, appellant argues that the trial court
erred by “denying [appellant’s] motion to suppress the evidence resulting from the warrantless
search of his residence . . . because there were no exigent circumstances permitting a warrantless
search.” For the following reasons, this Court affirms the ruling of the trial court.
I. BACKGROUND
On appeal from a trial court’s denial of a motion to suppress, this Court reviews the
evidence “in the light most favorable to the Commonwealth, giving it the benefit of any
reasonable inferences.” Glenn v. Commonwealth, 49 Va. App. 413, 416, 642 S.E.2d 282, 283
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
(2007) (en banc). This standard requires us to “give due weight to inferences drawn from those
facts by resident judges and local law enforcement officers.” Marlbrough v. Commonwealth,
275 Va. 163, 169, 655 S.E.2d 1, 3 (2008). “In doing so, we ‘consider facts presented both at the
suppression hearing and at trial.’” Tizon v. Commonwealth, 60 Va. App. 1, 15, 723 S.E.2d 260,
267 (2012) (quoting Morris v. City of Va. Beach, 58 Va. App. 173, 176, 707 S.E.2d 479, 480
(2011)). So viewed, the evidence is as follows.
At 11:38 p.m. on July 9, 2012, Officers D.C. Dubie (“Dubie”) and Nicolas R. Barb (“Barb”)
of the Lynchburg Police Department were patrolling in the area of Loraine Street when a call came
over their radios that a “shooting victim” had arrived at Lynchburg General Hospital. The
dispatcher informed the officers that the shooting occurred on Loraine Street. The officers did not
have a specific address, but went to the 2700 block of Loraine Street because, according to Dubie,
“that’s where . . . Loraine Street starts.”
As the officers were walking down the sidewalk, they noticed “a large wet patch on the walk
path leading up to 2703 Loraine Street.” The wet patch had a “strong odor of bleach,” which was
“unusual” because “it had rained earlier in the night.” Upon closer examination, the officers found
“blood droplets located next to the wet patch,” which led to the entrance of the residence at 2703
Loraine Street.
The officers approached the residence and knocked on the front door. Jewel Allen (“Allen”)
and Clifton Taylor (“Taylor”) answered the door and stepped outside onto the porch to speak with
the officers. During the conversation, Allen informed the officers that earlier in the night she was
asleep in her bedroom with her children when her housemate, appellant, woke her up and told her
that he had been shot. Allen gave appellant a towel and told him to go to the hospital. Dubie asked
Allen why she did not call the police, and Allen responded that “she didn’t think anything about it
because [appellant] was already on the way to the hospital.” Dubie testified that “Allen and . . .
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Taylor weren’t really giving us much information about if they knew anything about what was
going on.”
During the conversation, Allen’s neighbor, Patricia Vaughan (“Vaughan”) walked onto the
porch and told the officers that she heard “a loud pop sometime during the night but believed it had
been a trash can falling over.” Dubie testified that while he was on the porch he “could hear several
voices inside the residence,” but he could not ascertain the location or identity of the individuals
who were speaking.1 Consequently, Dubie told Allen that the residence was a “crime scene,” and
the officers executed “a protective sweep . . . due to the nature of the call [and] not knowing who
was inside [or] if the suspect was still inside.”
The officers were inside the residence for a “couple of minutes” as they “cleared” each room
“in an attempt to locate any person that [could] harm [them].” While inside, the officers observed,
in plain sight, several plastic bags containing what was later determined to be cocaine, as well as
green plant material that was later determined to be marijuana. The officers exited the property and
applied for a search warrant based on the items they observed as they were sweeping the residence.
Approximately three hours later, the officers obtained a warrant and reentered the house.
While executing the warrant, the officers recovered a green duffle bag from a closet on the ground
floor of the house. The duffle bag contained male clothing, a corner of a plastic bag containing
what was later determined to be cocaine, and paperwork from the Virginia Department of Motor
Vehicles bearing appellant’s name.
Prior to trial, appellant moved to suppress the evidence obtained as a result of the officers’
warrantless search of the residence. At the conclusion of the motion to suppress, the trial court
found that
1
Barb, who was standing behind Dubie, testified that he did not hear any voices coming
from inside the house.
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[i]t’s not in dispute that [appellant] had been shot . . . [but] there’s
really no evidence . . . of when he was shot . . . . The fact of the
matter is [Allen] had cleaned up blood from a crime scene and the
evidence is there was blood on her porch, on the walkway leading up
to her home and that [appellant] had been in her home. That is a
crime scene . . . .
* * * * * * *
[Dubie] has testified that he observed the wet spot on the sidewalk
leading up to this residence . . . . They went into this residence where
clearly there was blood and bleach located. There were blood
droplets still visible on the sidewalk. Not only that, there’s testimony
from [Dubie] that the occupants were less than forthcoming about
information and they hadn’t notified the authorities . . . . Seems a
little bizarre that an occupant cleans up blood from their sidewalk
with bleach, knows that a person has been shot on their premises and
never calls the authority . . . . So whether there’s additional blood . . .
that blood is relevant evidence in a gunshot case and there’s a
potential that there’s additional evidence in that home that certainly
the officers are concerned about being cleaned up . . . . Those
individuals [still located within the residence] could be doing
something with evidence . . . . Needless to say, [Allen’s] activity is
more than suspicious and it’s certainly not reasonable . . . .
After additional legal analysis, the trial court denied appellant’s motion to suppress, and the case
proceeded directly to trial.
Following trial, the trial court convicted appellant of possession of a Schedule I or II
controlled substance, in violation of Code § 18.2-250, and sentenced appellant to three years’
incarceration in the Department of Corrections. This appeal followed.
II. ANALYSIS
On appeal, appellant contends that the trial court erred by denying appellant’s motion to
suppress. Specifically, appellant argues that there were no exigent circumstances to justify the
officers’ warrantless entry into the residence.
When reviewing a trial court’s denial of a motion to suppress, “[t]he burden is on the
defendant to show that the denial of his suppression motion, when the evidence is considered in
the light most favorable to the Commonwealth, was reversible error.” McCain v.
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Commonwealth, 261 Va. 483, 490, 545 S.E.2d 541, 545 (2001) (citing Fore v. Commonwealth,
220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)). “While [this Court is] bound to review de
novo the ultimate questions of law, we ‘review findings of historical fact only for clear error and
. . . give due weight to inferences drawn from those facts by resident judges and local law
enforcement officers.’” Woodson v. Commonwealth, 25 Va. App. 621, 625, 491 S.E.2d 743,
745 (1997) (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)). Additionally, this
Court “‘give[s] due weight to a trial court’s finding that the officer was credible and the
inference was reasonable.’” Id.
“The right of the people to be secure in their . . . houses . . . against unreasonable searches
and seizures, shall not be violated.” U.S. Const. amend. IV. “‘Among the many interests served
by the Fourth Amendment, the privacy interest in one’s home has few equals.’” Ross v.
Commonwealth, 61 Va. App. 752, 759, 739 S.E.2d 910, 913 (2013) (quoting Kyer v.
Commonwealth, 45 Va. App. 473, 480-81, 612 S.E.2d 213, 217 (2005) (en banc)). Indeed, “‘the
physical entry of the home is the chief evil against which the wording of the Fourth Amendment
is directed.’” Id. (quoting Welsh v. Wisconsin, 466 U.S. 740, 748 (1984)).
Generally, “‘[w]arrantless entries into dwellings, followed by searches, seizures, and
arrests . . . are presumed to be unreasonable . . . .’” Cherry v. Commonwealth, 44 Va. App. 347,
356, 605 S.E.2d 297, 301 (2004) (quoting Verez v. Commonwealth, 230 Va. 405, 410, 337
S.E.2d 749, 752-53 (1985)). “‘But even on this topic the Fourth Amendment’s text endorses no
absolutes. It instead condemns only “unreasonable” searches and seizures.’” Ross, 61 Va. App.
at 759, 739 S.E.2d at 913 (quoting Kyer, 45 Va. App. at 480, 612 S.E.2d at 217). Accordingly,
the Fourth Amendment’s “warrant requirement is subject to certain reasonable exceptions.”
Kentucky v. King, 131 S. Ct. 1849, 1856 (2011).
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“One well-recognized exception applies when ‘the exigencies of the situation’ make the
needs of law enforcement so compelling that a warrantless search is objectively reasonable under
the Fourth Amendment.” Washington v. Commonwealth, 60 Va. App. 427, 436, 728 S.E.2d
521, 526 (2012) (quoting King, 131 S. Ct. at 1856).
Such exigencies often arise in one of two scenarios: (i) where the
police have probable cause to enter or search a location or thing,
but exigent circumstances excuse the need to obtain a warrant, and
(ii) where no probable cause exists, but a warrantless entry or
search is justified because of an emergency.
Ross, 61 Va. App. at 760, 739 S.E.2d at 914; see also Verez, 230 Va. at 410-11, 337 S.E.2d at
753 (listing ten categories of “exigent circumstances which might justify a warrantless entry”).
The first scenario, “the exigent circumstance exception[,] ‘necessarily embraces the
separate, but closely related, question of probable cause.’” Ross, 61 Va. App. at 760, 739 S.E.2d
at 914 (quoting Smith v. Commonwealth, 56 Va. App. 592, 600, 696 S.E.2d 211, 215 (2010)).
In these cases, the “police have probable cause to enter or search and exigent circumstances
justify doing so without first obtaining a warrant.” Id.
“Probable cause exists when the facts and circumstances within the arresting officer’s
knowledge and of which he has reasonably trustworthy information are sufficient in themselves
to warrant a man of reasonable caution in the belief that an offense has been or is being
committed,” Mazza v. Commonwealth, 16 Va. App. 907, 911, 434 S.E.2d 339, 342 (1993), or
when “there is a fair probability that contraband or evidence of a crime will be found in a
particular place,” Jones v. Commonwealth, 277 Va. 171, 178, 670 S.E.2d 727, 731 (2009)
(emphasis added).
When determining if probable cause exists, this Court “will test what the totality of the
circumstances meant to police officers trained in analyzing the observed conduct for purposes of
crime control.” Mazza, 16 Va. App. at 911, 434 S.E.2d at 342. Indeed, probable cause is
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“evaluate[d] . . . under a standard of objective reasonableness.” Cherry, 44 Va. App. at 357, 605
S.E.2d at 302. Police “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 v. Commonwealth, 222 Va. 134, 141, 278 S.E.2d 841, 846
(1981).
In the present case, after learning that there had been a shooting on Loraine Street, the
officers observed a large wet spot that smelled like bleach next to a blood trail that led to the
entrance of the residence at 2703 Loraine Street. Then, Allen informed the officers that
appellant, who had been shot, was inside her house earlier that night. Under these
circumstances, a reasonable police officer could believe that there was a “fair probability” that
appellant’s blood was within the residence. Jones, 277 Va. at 178, 670 S.E.2d at 731. The
question, therefore, becomes whether appellant’s blood is “evidence of a crime,” as is required
by the exigent circumstances exception. Id.
“Evidence is ‘something (including testimony, documents, and tangible objects) that
tends to prove or disprove the existence of an alleged fact . . . .’” In re Neal, 44 Va. App. 89, 90,
603 S.E.2d 170, 170 (2004) (quoting Black’s Law Dictionary 595 (8th ed. 2004)). Appellant’s
blood tends to prove that appellant was, in fact, shot. Moreover, the presence and location of the
blood within the residence could either corroborate or impeach Allen’s statements to the officers
regarding the shooting. As such, it is evidence of a crime.
Additionally, “[d]epending on the type of stain and the circumstances, a number of
different conclusions can be reached [from blood spatter evidence], such as the cause of the
stain, its point of origin, and the direction in which the blood droplets were going at impact.”
Smith v. Commonwealth, 265 Va. 250, 252, 576 S.E.2d 465, 467 (2003). Therefore, the
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presence or absence of any spatter stains in the residence would indicate whether appellant was
shot within or outside of the residence – a fact not know by the officers when they made entry.
Accordingly, in the present case, appellant’s blood was evidence of a crime, and the officers had
probable cause to believe that it was within the residence.
But probable cause that evidence of a crime was within the residence is not, by itself,
sufficient to justify a warrantless search of the residence. This Court must next determine
whether any “exigent circumstances excuse[d] the need to obtain a warrant.” Ross, 61 Va. App.
at 760, 739 S.E.2d at 914.
“One category of exigent circumstances that, together with probable cause, will justify a
warrantless search of a house applies when ‘evidence would be lost, destroyed or removed
during the time required to obtain a search warrant.’” Smith, 56 Va. App. at 598, 696 S.E.2d at
214 (quoting Mincey v. Arizona, 437 U.S. 385, 394 (1978)). When determining whether an
exigent circumstance exists, “‘[t]he police need not . . . produce concrete proof that the
occupants of the room were on the verge of destroying evidence; rather, the proper inquiry
focuses on what an objective officer could reasonably believe.’” Id. at 599, 696 S.E.2d at 214
(quoting United States v. Grissett, 925 F.2d 776, 778 (4th Cir. 1991)).
In the present case, this Court concludes that an objective officer could reasonably
believe that the biological evidence within the house “would be . . . destroyed . . . during the time
required to obtain a search warrant.” Id. at 598, 696 S.E.2d at 214. Some biological evidence,
such as blood, saliva, or DNA, is particularly susceptible to destruction, and this Court has
acknowledged that fear of its destruction could create an exigent circumstance. West v.
Commonwealth, 54 Va. App. 345, 356, 678 S.E.2d 836, 841 (2009) (noting “appellant could
easily destroy the biological evidence of his guilt while the police proceeded to get a search or
arrest warrant”).
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In the present case, not only were the officers aware that people were awake inside the
house, where they had probable cause to believe there was biological evidence of a crime, but
they were also aware that some of the blood evidence had already been destroyed with bleach on
the sidewalk. Additionally, as the trial court found, Allen’s behavior was “more than suspicious”
in that she failed to call the police upon learning that appellant was shot and she was “less than
forthcoming” when talking with the officers.
Due to the readily disposable nature of the biological evidence, the fact that some of this
evidence had already been destroyed, and Allen’s suspicious behavior, “an objective officer
could reasonably believe” that the biological evidence within the house would be destroyed if the
officers waited to obtain a warrant. Smith, 56 Va. App. at 599, 696 S.E.2d at 214; see also
Cherry, 44 Va. App. at 361-62, 605 S.E.2d at 304 (noting it was reasonable for an officer to
conclude once the defendants knew of his presence they would try to destroy the marijuana
before he came back with a warrant).2
Therefore, this Court holds that the officers had probable cause to believe that evidence
of a crime was within the residence and that such evidence would be destroyed if they waited to
obtain a warrant before entering the premises.
2
Appellant argues on brief that the officers entered the house because Dubie heard voices
inside while talking to Allen, not because they believed the blood spatter evidence would be
destroyed. “Examining the subjective intent of the officer,” however, “is fundamentally
inconsistent with our Fourth Amendment jurisprudence . . . because the Fourth Amendment
regulates conduct rather than thoughts.” Washington, 60 Va. App. at 435, 728 S.E.2d at 525
(citations and internal quotations marks omitted). Phrased differently, this Court does “not
consider allegations of the officer’s real motive for his actions if they otherwise satisfy the
objective reasonableness standard adopted by the Fourth Amendment. An officer’s ulterior
motive, whatever it might be, does not nullify an objectively valid legal justification for his
actions.” Thomas v. Commonwealth, 57 Va. App. 267, 274, 701 S.E.2d 87, 91 (2010) (citations
and internal quotations marks omitted); see also Whren v. United States, 517 U.S. 806, 813
(1996) (holding that “[s]ubjective intentions play no role in ordinary, probable-cause Fourth
Amendment analysis”).
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III. CONCLUSION
Accordingly, this Court affirms the trial court’s decision to deny appellant’s motion to
suppress because the officers had probable cause to believe evidence of a crime was within the
home, and exigent circumstances justified dispensing with the warrant requirement.
Affirmed.
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