COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton, Elder,
Annunziata, Bumgardner, Frank, Humphreys, Clements,
Agee, Felton and Kelsey
Argued at Richmond, Virginia
BENJAMIN WAYNE McCRACKEN
OPINION BY
v. Record No. 2912-00-3 JUDGE RUDOLPH BUMGARDNER, III
NOVEMBER 26, 2002
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Nicholas E. Persin, Judge
John B. Coleman (Scyphers & Austin, P.C., on
brief), for appellant.
Virginia B. Theisen, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
A jury convicted Benjamin Wayne McCracken of possession of
marijuana and two counts of assault and battery of a law
enforcement officer. He contends the trial court erroneously
admitted evidence obtained when a deputy sheriff illegally
entered a home, frisked the defendant, and found marijuana in
his pocket. He maintains he lawfully used reasonable force to
resist his arrest because it was unlawful.
A panel of this court held that the trial court erred in
admitting unlawfully seized marijuana and reversed the
conviction of possession of marijuana. The panel held the
defendant was not entitled to resist his arrest and affirmed the
two convictions for assault and battery of a law enforcement
officer. We granted a petition for rehearing en banc and stayed
the mandate of the panel decision. Upon rehearing en banc, we
affirm the trial court.
On appeal of the denial of a motion to suppress, we view
the evidence in the light most favorable to the Commonwealth.
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
support them," McGee v. Commonwealth, 25 Va. App. 193, 198, 487
S.E.2d 259, 261 (1997) (en banc), but we review de novo the
trial court's application of legal standards such as reasonable
suspicion to the particular facts of the case. See Ornelas v.
United States, 517 U.S. 690, 699 (1996).
The defendant and Teresa Fields had lived together for
almost three years in a house owned by Fields. During an
argument, Fields called the 911 emergency dispatcher to have the
defendant removed from her residence. When Deputies Dollar and
Sexton responded to the "domestic disturbance" the couple were
still arguing, but the situation had not escalated to violence.
The defendant agreed to move out of Fields' house, and the
deputies remained for forty-five minutes and helped him remove
his belongings. The defendant went to stay with his mother.
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After the defendant arrived there, he telephoned Fields,
and the two renewed their argument. When that call ended, the
defendant's mother telephoned Fields and warned her that the
defendant was going to her house. Fields called the 911
emergency dispatcher a second time and reported the defendant
was returning. The dispatcher instructed her to lock her doors
and dispatched Deputies Dollar and Sexton to the "domestic
call."
When Deputy Dollar arrived at Fields' house, the back door
was locked, neighbors were in the front yard screaming, and the
deputy heard Fields and the defendant arguing inside the house.
The front door was partially open, but the screen door was
closed. The deputy drew his weapon, pushed open the screen
door, and entered.
The defendant and Fields were standing four to six feet
apart. The deputy saw nothing in their hands. He holstered his
weapon, but as he looked over the defendant, he noticed a bulge
in his right front pants pocket. He asked the defendant to
place his hands on the wall so he could make sure the defendant
did not have any weapons. The defendant did not comply and kept
moving around the room despite repeated requests to put his
hands on the wall. Finally, the defendant stopped and put his
hands on the back of a love seat.
While the defendant leaned against the love seat, the
deputy patted the defendant's front right pocket and felt a
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hard, rigid object in it. The deputy reached into the pocket
for the hard object, but first uncovered a plastic baggie
containing plant matter, which had been on top of the hard
object. The deputy believed the bag contained marijuana. He
told the defendant he was under arrest for possession of it and
instructed the defendant to put his hands behind his back.
Again the defendant disregarded instructions. He "kept easing
away," and then stated he wanted his Skoal and his gun. The
defendant started toward the kitchen at a fast pace.
Deputy Dollar told the defendant to stop and grabbed hold
of him. The defendant resisted; the two began to scuffle, and
then to fight. During the altercation the defendant kicked the
deputy, struck him in the face, and began choking him with a
headlock hold. At that point, Deputy Sexton arrived. While he
tried to break the defendant's hold on Dollar, the defendant
elbowed Sexton in the ribs. Eventually, the two deputies
subdued the defendant and handcuffed him. 1
Before opening the screen door, the deputy had probable
cause to believe the defendant was trespassing, Code § 18.2-119. 2
1
Later searches revealed a rifle behind the bedroom door,
five feet from the site of the struggle, and a folding knife in
the defendant's right front pants pocket.
2
Code § 18.2-119 provides:
If any person without authority of law goes
upon or remains upon the lands, buildings or
premises of another . . . after having been
forbidden to do so, either orally or in
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The deputies responded to the initial domestic disturbance call
because Teresa Fields wanted the defendant removed from her
house. Fields was the owner of the residence, and she could
properly revoke the defendant's permission to be on the
property. He left voluntarily the first time, but ninety
minutes later he returned to her house causing Fields to place a
second call to the 911 emergency dispatcher. When the deputy
responded, neighbors were screaming, and the deputy heard the
defendant inside arguing with Fields. "In determining whether
probable cause exists courts will test what the totality of the
circumstances meant to police officers trained in analyzing the
observed conduct for purposes of crime control." Hollis v.
Commonwealth, 216 Va. 874, 877, 223 S.E.2d 887, 889 (1976).
As a trespasser, defendant had no justifiable expectation
of privacy in Fields' home and therefore no standing to contest
the entry of the house. See Woodson v. Commonwealth, 25
Va. App. 621, 626, 491 S.E.2d 743, 745 (1997) ("We hold that
appellant was not lawfully on the premises and that, as a
trespasser, he lacks the privacy interest necessary to claim a
Fourth Amendment violation."). 3
writing, by the owner, lessee, custodian or
other person lawfully in charge thereof
. . . he shall be guilty of a Class 1
misdemeanor.
3
The deputy was answering a complaint, a call for
assistance from the homeowner, and he was entering the property
of the complainant, not of the defendant. The deputy was not
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The deputy entered armed with probable cause to believe the
defendant was trespassing. "If an officer has probable cause to
believe that an individual has committed even a very minor
criminal offense in his presence, he may, without violating the
Fourth Amendment, arrest the offender." Atwater v. City of Lago
Vista, 532 U.S. 318, 354 (2001). When an officer has probable
cause to arrest, he may conduct a search prior to the arrest.
Cardwell v. Lewis, 417 U.S. 583, 595 (1974).
The argument between Fields and the defendant could easily
have escalated if the deputy had not acted immediately upon
noticing the bulge in the defendant's pocket. Domestic
disturbances have a low flash point, and "violence may be
lurking and explode with little warning." Fletcher v. Town of
Clinton, 196 F.3d 41, 50 (1st Cir. 1999). 4
making a warrantless arrest of the defendant in his home as in
Payton v. New York, 445 U.S. 573, 574 (1980). Nor was the
homeowner prosecuted with evidence seized in the home while
executing an arrest warrant for someone else as in Steagald v.
United States, 451 U.S. 204, 205 (1981).
4
In recognition of the difficulty of protecting against
domestic violence, the General Assembly increased the duties of
law-enforcement officers when responding to such incidents. See
Code § 19.2-81.3. Police are entitled to arrest without a
warrant though the violation does not occur in their presence.
They must arrest "the primary physical aggressor" if they
develop probable cause unless special circumstances exist. The
police must make a written report of any incident in which they
have probable cause that "family abuse" occurred and written
explanation of the special circumstances if they do not arrest.
Finally, if the officer has probable cause to believe that a
danger of acts of family abuse exists, he "shall seek an
emergency protective order . . . ." "Family abuse" not only
includes violence and force resulting in bodily injury, but it
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After initially resisting, the defendant placed his hands
on the love seat and permitted the officer to pat down the
defendant's pants pocket. At that point, the deputy was
lawfully taking "such steps as [were] reasonably necessary to
protect [his and others'] personal safety . . . ." United
States v. Hensley, 469 U.S. 221, 235 (1985). The marijuana
found in the course of that lawful search was properly admitted
in evidence.
While a person is entitled to use reasonable force to
resist an unlawful arrest, he is not entitled to resist a lawful
arrest. Brown v. Commonwealth, 27 Va. App. 111, 116-17, 497
S.E.2d 527, 529-30 (1998). The deputies arrested on probable
cause to believe the defendant was trespassing and possessed
marijuana, thus the defendant had no right to resist this lawful
arrest.
A lawful arrest, when made with unlawful force, may be
resisted. Palmer v. Commonwealth, 143 Va. 592, 602-03, 130 S.E.
398, 401 (1925); Foote v. Commonwealth, 11 Va. App. 61, 66, 396
S.E.2d 851, 856 (1990). "[A]n arrest utilizing excessive force
is a battery because that touching is not justified or excused
and therefore is unlawful." Gnadt v. Commonwealth, 27 Va. App.
148, 151, 497 S.E.2d 887, 888 (1998). The officers in this case
also includes a threat that places one in reasonable
apprehension of bodily injury. See Code § 16.1-228.
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used reasonable force to subdue the defendant when he refused to
submit. The deputies did not use excessive force by ratcheting
the force employed when nothing less brought the defendant under
control. The defendant was not entitled to resist his lawful
arrest made with lawful force.
We conclude the conduct of the deputy sheriffs in
responding to this series of events was reasonable under the
totality of the circumstances. Accordingly, we affirm.
Affirmed.
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Benton, J., dissenting.
I.
The evidence proved that Benjamin McCracken and Teresa
Fields lived together in the house for nearly three years.
Fields testified that on April 8, 2000, McCracken was asleep
when she began cleaning the house. After the cleaning noise
awakened McCracken, Fields and McCracken argued. Fields
testified that she "had an excruciating headache, . . . was ill,
irritable." When she became tired of arguing, she called the
police dispatcher, who sent two officers to the residence at
midday in response to Fields' telephone call. One of the
officers testified that they responded to a complaint of "verbal
arguing." No evidence indicates Fields told the dispatcher or
the officers she wanted the officers to remove McCracken from
the house.
When the police arrived, McCracken was putting various
personal possessions in his car. Fields and McCracken explained
that "they'd had [a] verbal argument and that [there] had been
no assault." When asked if he was able to calm the situation,
the officer responded, "It seemed to have been not very
escalated." The officers remained while McCracken gathered some
of his personal possessions and put them in his car. One
officer described the situation as "very peaceful" and said they
helped McCracken load some of his possessions. The other
officer testified that McCracken was "very friendly, [that
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McCracken] agreed to leave, and [that] there were no problems
whatsoever." Fields testified that she and McCracken declined
"to fill out any type of papers to keep each other away" and
said "there was no purpose for that."
McCracken went to his mother's residence with some of his
personal possessions and later telephoned Fields. During that
conversation, McCracken and Fields were both agitated.
McCracken's mother later telephoned Fields to inform her that
McCracken was returning to collect more of his personal
possessions. Before McCracken arrived at the residence, Fields
telephoned the police dispatcher and requested that the officers
return to her home. Fields testified that she "overreacted" and
telephoned for the officers to return because she had to go to
work. She expected to be late arriving at work and did not want
to be further delayed by an argument with McCracken. She
testified that when McCracken arrived he told her "he was there
to pick up some of his belongings."
The officers returned to the residence about an hour and a
half after they had left the residence. The first officer to
arrive testified that before entering the residence, he heard
neighbors hollering something to him. Fields' sister testified
that, when she saw the officer having difficulty opening the
screen door, she called to him that "the front door drags." The
officer testified that he heard Fields and McCracken "verbally
arguing back and forth when he walked up on the porch." Fields
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testified, however, that she was talking to McCracken and that
they were not arguing. The officer drew his weapon and walked
into the house without knocking.
II.
McCracken contends the officers had neither probable cause
to believe a crime was being committed nor exigent circumstances
to justify their entry. The Commonwealth responds the "officers
had probable cause at the time of their warrantless entry to
believe that cognizable exigent circumstances were present"
because of a "domestic" dispute.
The United States Supreme Court has held that, "absent
probable cause and exigent circumstances, warrantless [entries
and] arrests in the home are prohibited by the Fourth
Amendment." Welsh v. Wisconsin, 466 U.S. 740, 741 (1984);
Payton v. New York, 445 U.S. 573, 590 (1980). "[W]arrantless
entries into dwellings, followed by searches, seizures, and
arrests therein . . . are presumed to be unreasonable, in Fourth
Amendment terms, casting upon the police a heavy burden of
proving justification by exigent circumstances." Verez v.
Commonwealth, 230 Va. 405, 410, 337 S.E.2d 749, 752-53 (1985);
Welsh, 446 U.S. at 750. Furthermore, "[e]xigent circumstances
justify a warrantless entry . . . only when the police have
probable cause to obtain a search warrant." Alexander v.
Commonwealth, 19 Va. App. 671, 674, 454 S.E.2d 39, 41 (1995).
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The trial judge found that the officers acted reasonably in
entering the residence and denied the motion to suppress. His
findings included the following:
There is no question or at least I haven't
heard any evidence that would cause the
Court to believe that the first call was not
made by her complaining about the conduct of
[McCracken]. The officers responded. When
they got there, evidently a reasonable
inference would be that . . . Fields and
[McCracken] had come to some sort of
agreement. The officers testified that
there was no fighting or arguing, that he
was in the process of removing his property.
He was cooperative, he was loading his
vehicle, his personal items, some of his
stereo equipment. The officers even
assisted him. So there is no evidence of
any ill feeling or ill will from the first
call. But the fact remains that . . .
Fields called for help the first time. . . .
Shortly thereafter, an hour or hour and a
half later, a second call comes in. And the
evidence is unrebutted that [McCracken] is
back on her property where he was living
with her. And the Jury has heard evidence
that there was screaming on the outside, one
of the officers heard it, the other one
didn't. Officer Sexton says he didn't. And
when they go inside of the house, the Court
is of the opinion that that was reasonable.
I mean, here you had a second call where the
officers thought [McCracken] was leaving and
was cooperative and left. Now he's back on
the scene. And the owner of the property is
calling the officers again for assistance.
They respond. They come in, they observe,
they know there's been prior problems.
We have held that a call to the police dispatcher for
assistance does not, without more, give rise to probable cause
to believe a crime is occurring. Id. at 674-75, 454 S.E.2d at
41. The evidence proved that when the police arrived in
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response to the first call from Fields, McCracken had made no
threats. Indeed, Fields had not even expressed fear of
McCracken when she first called the police dispatcher. She
testified that when the dispatcher specifically "asked [her] if
[McCracken] was hitting [her] or being physical," she "told him
no, that it was just verbal." Although McCracken and Fields had
had an argument, the officers testified that matters were
peaceful and non-threatening.
The evidence also proved that when Fields called the police
on the second occasion, McCracken had not arrived. Fields knew
the police dispatcher and told him "that [her problem with
McCracken] was just verbal." She testified that she reported no
crime, that she expected no trouble from McCracken, and that she
wanted the officers there because she had to go to work and did
not want to be delayed by an argument with McCracken. Thus, she
had not given the police dispatcher or the officers any basis to
believe McCracken would do anything other than continue to
gather his property. "Probable cause for police officers to
enter a person's [residence] must be based on more than
speculation, suspicion, or surmise that a crime might be in
progress." Id. at 674, 454 S.E.2d at 41. The officers could
not reasonably infer from either their first visit to the house
or the call to return to the house that when McCracken returned
to remove more of his property he either posed any threat to
Fields or would commit a crime. Simply put, this evidence
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failed to prove the officer had probable cause to believe a
crime had been or was being committed when he made the
warrantless entry into the home.
Although the majority contends that McCracken had committed
a trespass and had no expectation of privacy in the residence,
no evidence supports that hypothesis. The Commonwealth never
suggested at trial that McCracken committed a trespass or lacked
standing. Moreover, the trial judge made no finding that
McCracken committed a trespass or lacked standing. Indeed,
prior to this hearing en banc, the Commonwealth never argued
trespass or the lack of standing. I substantially agree,
therefore, with the discussion in Part I(A) of Judge Elder's
concurring and dissenting opinion that we have no basis to
consider, in the first instance, these issues on appeal.
In addition, the evidence proved that when the prosecutor
asked Fields, "who actually owns the home where this incident
took place?," Fields responded, "My father. He give it to me
and my [minor] daughter." Although the evidence did not
indicate whether Fields and McCracken paid rent to Fields'
father, the evidence also did not prove McCracken had been
barred by anyone from entering the house. Significantly, Fields
did not testify that she had barred McCracken from returning to
the house. Instead, she testified she told the dispatcher, whom
she knew, that McCracken had never physically abused her, and
she further testified she wanted the police there solely to
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prevent another argument which would delay her departure to
work. Indeed, when McCracken initially left with some of his
possessions, Fields told the officers it was not necessary for
her "to fill out any type of papers to keep each other away from
each other." The trial judge specifically found that Fields and
McCracken "had come to some sort of agreement" before the
officers initially arrived and before McCracken went to his
mother's residence. Thus, the evidence proved that when
McCracken returned to the house in which he had lived for three
years, he had not been barred from the premises, and he used his
key to enter the house to gather his possessions. The
assertions of trespass and lack of standing at this stage of the
proceedings are an after the fact rationale unfounded by the
evidence.
The principle is well established that "no amount of
probable cause can justify a warrantless [entry into a home]
. . . absent 'exigent circumstances.'" Coolidge v. New
Hampshire, 403 U.S. 443, 468 (1971); Payton, 445 U.S. at 590.
"Before agents of the government may invade the sanctity of the
home, the burden is on the government to demonstrate exigent
circumstances that overcome the presumption of unreasonableness
that attaches to all warrantless home entries." Welsh, 466 U.S.
at 750. The evidence proved that McCracken had never physically
abused Fields and that she had no fear of him. Moreover, Fields
did not tell the police dispatcher McCracken had threatened her.
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She testified she has known the dispatcher "for years" and told
the dispatcher her only concern was the arguments. She merely
wanted someone there to prevent another argument. Although the
trial judge could believe the officer's testimony that he heard
argument and disbelieve Fields' testimony that she and McCracken
were not arguing, the mere occurrence of an argument is not
indicative of a threat to life or serious injury. The officer
had no other basis to believe an emergency existed. Indeed, the
officers earlier had witnessed McCracken's conduct at the home
and testified that the situation was "peaceful."
As in Shannon v. Commonwealth, 18 Va. App. 31, 34, 441
S.E.2d 225, 226, aff'd on reh'g en banc, 19 Va. App. 145, 449
S.E.2d 584 (1994), and Alexander, this evidence contains no
basis upon which the police officers could have concluded that
an emergency existed. Thus, the Commonwealth failed to meet its
"heavy burden" of proving exigent circumstances existed
justifying the warrantless entry. Alexander, 19 Va. App. at
674, 454 S.E.2d at 41.
III.
"At the very core [of the Fourth Amendment] stands the
right of a [person] to retreat into his [or her] own home and
there be free from unreasonable governmental intrusion."
Silverman v. United States, 365 U.S. 505, 511 (1961). "It is
axiomatic that the 'physical entry of the home is the chief evil
against which the wording of the Fourth Amendment is directed.'"
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Welsh, 466 U.S. at 748 (citation omitted). "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." Payton, 445 U.S. at 590. Thus, the Supreme Court has
reiterated that it "held in Payton . . . that a suspect should
not be arrested in his house without an arrest warrant, even
though there is probable cause to arrest him." Minnesota v.
Olson, 495 U.S. 91, 95 (1990).
Unlike in United States v. Moore, 483 F.2d 1361, 1364 (9th
Cir. 1973), where "[t]he warrantless arrest was . . . lawful, in
itself," id. at 1364, here it was not. The officer's
warrantless entry to McCracken's residence presumptively was
constitutionally unlawful, Payton, 445 U.S. at 586, and could
not support an arrest even upon probable cause. See Olson and
Payton. See also Horton v. California, 496 U.S. 128, 137 n.7
(1990). The principle is well established and long standing
that an unlawful, warrantless entry by a police officer into a
residence renders void the power to arrest even if probable
cause arises upon a discovery inside the residence after the
unlawful entry. Johnson v. United States, 333 U.S. 10, 15-17
(1948); Welsh, 466 U.S. at 748-50; Payton, 445 U.S. at 588-90.
See also Jefferson v. Commonwealth, 27 Va. App. 1, 18, 497
S.E.2d 474, 482-83 (1998) (holding that the "arrest of appellant
. . . executed after the officer entered the curtilage of
appellant's home without a warrant . . . violated the Fourth
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Amendment"). The purpose of these decisions, holding the
arrests to be void, is "to protect [the] home from entry."
Olson, 495 U.S. at 95.
An officer gaining access to private living
quarters under color of his office and of
the law which he personifies must then have
some valid basis in law for the intrusion.
Any other rule would undermine "the right of
the people to be secure in their persons,
houses, papers, and effects," and would
obliterate one of the most fundamental
distinctions between our form of government,
where officers are under the law, and the
police-state where they are the law.
Johnson, 333 U.S. at 17 (footnote omitted).
"It has long been held in Virginia that where an officer
attempts an unlawful arrest, the officer is an aggressor which
gives the arrestee the right to use self-defense to resist so
long as the force used is reasonable." Brown v. Commonwealth,
27 Va. App. 111, 116-17, 497 S.E.2d 527, 530 (1998). This
principle of law treats the unlawful arrest as an unauthorized
touching and, thus, a battery against the attempted arrestee.
The Supreme Court, therefore, has held that where an officer
attempts an unlawful arrest, the arrestee "could resist with
such reasonable force as was necessary to repel that being
exercised by the officer in that undertaking." Broaddus v.
Standard Drug Co., 211 Va. 645, 652, 179 S.E.2d 497, 503 (1971).
Thus, for example, in further contrast to Moore, where the Ninth
Circuit indicated an arrestee may only resist unlawful arrests
that are the result of "bad faith, unreasonable force, or
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provocative conduct on the part of the arresting officer,"
Moore, 483 F.2d at 1365, Virginia decisions hold that even if a
police officer acts in "good faith" an arrestee may still resist
an unlawful arrest. Brown, 27 Va. App. at 118, 497 S.E.2d at
530.
The evidence proved that McCracken initially resisted being
searched and then attempted to maneuver his way around the
officer after the officer sought to arrest him. Because the
attempt to search and arrest McCracken was made after the
officer had unlawfully entered the home without a warrant,
McCracken had a right to use reasonable force to resist any of
the officer's conduct. The encounter escalated to a physical
altercation only when the officer jumped onto McCracken's back.
The events that gave rise to the search and arrest all
occurred within the home, after the officers had unlawfully
entered the home and upon the officer's discovery of evidence
within the home during that unlawful entry. This is precisely
the circumstance the Supreme Court's decision in Payton barred
by holding that "'physical entry of the home is the chief evil
against which the wording of the Fourth Amendment is directed.'"
445 U.S. at 585 (citation omitted). The rule in Payton was
derived from the "overriding respect for the sanctity of the
home that has been embedded in our traditions since the origins
of the Republic." Id. at 601. By drawing a line at the
entrance to a home, the Fourth Amendment protects the physical
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integrity of the home. As the Court noted in Johnson, "officers
. . . thrust[ing] themselves into a home is . . . a grave
concern not only to the individual but to a society which
chooses to dwell in reasonable security and freedom from
surveillance." 333 U.S. at 14. Based on the unlawful entry,
McCracken was not unreasonable in his attempt to resist the
unlawful arrest and did not use excessive force in resisting.
IV.
For these reasons, I would hold that the officer's
warrantless entry into the residence violated the Fourth
Amendment. The officer's unlawful entry negated his authority
to search McCracken and make an arrest for events occurring
inside the home. 5 Therefore, I would reverse all the convictions
and dismiss the indictments. See Alexander, 19 Va. App. at 675,
454 S.E.2d at 41.
5
Although I would hold that the officer's warrantless entry
was presumptively unlawful and negated his power to arrest, I
agree with the portion of Part I(B) of Judge Elder's concurring
and dissenting opinion which indicates that the circumstances
did not provide the officer with a reasonable, articulable
suspicion that McCracken was armed and dangerous. "An officer
may not, simply by observing some item causing a 'bulge' in
one's clothing, conduct a general frisk where the nature of the
bulge or the surrounding circumstances do not reasonably support
the conclusion that . . . the person is armed and dangerous."
Stanley v. Commonwealth, 16 Va. App. 873, 877, 433 S.E.2d 512,
515 (1993). As we noted in Stanley, these facts would
impermissibly sanction an officer "in patting down anyone who
happened to be carrying a checkbook or wallet in his pants
pocket." 16 Va. App. at 877, 433 S.E.2d at 515.
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Elder, J., concurring, in part, in the judgment and dissenting,
in part.
For the reasons that follow, I concur in the majority's
affirmance of appellant's two convictions for assault and
battery on a law enforcement officer but dissent from its
affirmance of his conviction for marijuana possession. I
substantially concur in the majority's recitation of the
relevant facts.
I.
A.
TRESPASS
The majority concludes the search of appellant was valid as
incident to arrest because Deputy Dollar had probable cause to
arrest for trespass before he conducted the search. I recognize
the principle that an appellate court may affirm the judgment of
the trial court when it has reached the right result for the
wrong reason. See, e.g., Driscoll v. Commonwealth, 14 Va. App.
449, 452, 417 S.E.2d 312, 313 (1992). However, this principle
requires that both "the correct reason and its factual basis
were presented at trial." McLellan v. Commonwealth, 37 Va. App.
144, 155, 554 S.E.2d 699, 704 (2001). Because the existence of
probable cause to arrest for trespass or any other crime was not
raised at trial as a basis for justifying Deputy Dollar's search
of appellant and because no challenge was made to appellant's
standing to contest Deputy Dollar's entry, I would hold that
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neither of these grounds may serve as the basis for this Court's
affirmance of appellant's convictions.
In the trial court, the Commonwealth argued that the deputy
had a right
to do a frisk search . . . to protect
himself because . . . he didn't know what he
was looking at coming in on that second
call. And once he found an object in the
pocket, he had the right to take that object
out and that turned out to be the marijuana.
It's a valid frisk, it's a valid arrest
. . . .
Appellant argued the police lacked probable cause to enter and
also lacked the articulable suspicion necessary to justify a
weapons frisk. The trial court ruled that, based on the events
occurring during the deputies' first and second trips to the
residence, they had the right to "do[] a pat down to ensure
their own safety." The court expressly found that Teresa Fields
was the owner of the house, a subsidiary factual finding
relevant to the issue of whether a trespass occurred. However,
neither party mentioned whether appellant was a trespasser or
had standing to contest Deputy Dollar's entry of the residence,
and the trial court gave no indication that it considered these
issues or made any of the additional factual findings critical
to their resolution.
Thus, I would hold that neither the existence of probable
cause to arrest appellant for trespassing nor his alleged lack
of standing to contest Deputy Dollar's entry of the residence,
- 22 -
provides a valid basis for affirming appellant's convictions and
would consider only the arguments advanced in the trial court.
Based on these arguments, for the reasons that follow, I would
reverse appellant's conviction for marijuana possession and
affirm his convictions for assault and battery on a law
enforcement officer.
B.
WEAPONS FRISK
In order for an officer to conduct a weapons frisk, two
conditions must exist. First, the officer must rightly be in
the presence of the party frisked so as to be endangered if the
person is armed. See, e.g., 4 Wayne R. LaFave, Search and
Seizure § 9.5, at 246 (3d ed. 1996). Second, the officer must
be able to point to "'specific and articulable facts'" "which
reasonably lead[] him to conclude, in light of his experience,
. . . that the suspect 'may be armed and presently dangerous.'"
Lansdown v. Commonwealth, 226 Va. 204, 209, 308 S.E.2d 106, 110
(1983) (quoting Terry v. Ohio, 392 U.S. 1, 21, 30, 88 S. Ct.
1868, 1880, 1884, 20 L. Ed. 2d 889 (1968)).
In assessing whether a particular person may be armed and
dangerous, an officer may consider "characteristics of the area
surrounding the stop, the time of the stop, the specific conduct
of the suspect individual, the character of the offense under
suspicion, and the unique perspective of a police officer
trained and experienced in the detection of crime." Christian
- 23 -
v. Commonwealth, 33 Va. App. 704, 714, 536 S.E.2d 477, 482
(2000) (en banc) (footnote omitted). "An officer may not,
simply by observing some item causing a 'bulge' in one's
clothing, conduct a general frisk where the nature of the bulge
or the surrounding circumstances do not reasonably support the
conclusion that . . . the person is armed and dangerous."
Stanley v. Commonwealth, 16 Va. App. 873, 877, 433 S.E.2d 512,
515 (1993); see also United States v. Wilson, 953 F.2d 116, 125
(4th Cir. 1991) (holding that, absent additional evidence,
seeing "a bulge [in clothing of person at airport] is not the
sort of observation that has any significance"). Compare
Stanley, 16 Va. App. at 876, 433 S.E.2d at 514 (holding the
Fourth Amendment "does not legitimize a patdown search of
someone stopped for a routine traffic offense simply because he
is carrying an item the size and configuration of a wallet or
checkbook in his front pants pocket"), with Troncoso v.
Commonwealth, 12 Va. App. 942, 945, 407 S.E.2d 349, 350-51
(1991) (holding that if bulge observed in stomach area of driver
during routine traffic stop is accompanied by fidgeting,
nervousness, and effort to conceal bulge, officer's belief that
subject may be armed and dangerous is reasonable).
Here, Deputy Dollar responded to Fields' second 911 call
and entered her residence through an unlocked door only after he
encountered neighbors in the front yard yelling and heard
arguing inside the residence. Thus, Deputy Dollar was rightly
- 24 -
in appellant's presence. Nevertheless, the evidence did not
provide Deputy Dollar with reasonable, articulable suspicion to
conclude that the object in appellant's pocket may have been a
weapon. Although Deputy Dollar was responding to a 911
"domestic call" at Fields' residence for the second time that
day, the first call involved only "verbal arguing," was "not
very escalated," and resolved peacefully with no indication that
either party possessed a weapon or was predisposed to use
violence toward the other or toward the deputies. When Deputy
Dollar returned the second time, neighbors were in the front
yard yelling, and Dollar heard the parties inside "verbally
arguing back and forth" while he stood on the front porch, but
Dollar did not testify that he overheard either party threaten
the other or that he heard anything indicating physical violence
or abuse.
When Dollar entered unannounced, he immediately saw Fields
and appellant standing at least four feet apart, he noticed
nothing unusual about Fields' appearance, and he saw nothing in
either party's hands. Although he noticed appellant's right
front pocket was "bulging" and concluded that appellant had
"something" inside his pocket, Dollar articulated no specific
basis for believing that "something" might be a weapon. Before
Deputy Dollar attempted to frisk appellant for weapons,
appellant engaged in no additional behavior and made no
- 25 -
statements tending to indicate that he was armed and presently
posed a danger to Fields or Deputy Dollar.
Thus, I would conclude Deputy Dollar lacked reasonable
articulable suspicion to believe appellant was both armed and
presently dangerous when Dollar told appellant he intended to
frisk appellant for weapons. I recognize that domestic disputes
often are fraught with danger for both their participants and
the law enforcement officers trying to diffuse them. See, e.g.,
Fletcher v. Town of Clinton, 196 F.3d 41, 50 (1st Cir. 1999)
(noting that in domestic disputes, "violence may be lurking and
explode with little warning"). Nevertheless, I am unwilling to
hold that an officer responding to a verbal domestic dispute may
frisk a party to the dispute solely because that party has an
unidentified "bulge" in his pocket. Accordingly, I would hold
that Deputy Dollar's frisk of appellant and search of his pocket
were unreasonable and that the fruits of that search should have
been suppressed. Because no evidence other than the illegally
seized marijuana supported appellant's conviction for marijuana
possession, I would reverse that conviction and dismiss the
underlying charge.
C.
ASSAULT AND BATTERY ON A LAW ENFORCEMENT OFFICER
"An unlawful arrest or an arrest utilizing excessive force
is a battery because that touching is not justified or excused
and therefore is unlawful." Gnadt v. Commonwealth, 27 Va. App.
- 26 -
148, 151, 497 S.E.2d 887, 888 (1998). In either case, the
arrestee may use reasonable force to resist the arrest. See
Palmer v. Commonwealth, 143 Va. 592, 602-03, 130 S.E. 398, 401
(1925); Foote v. Commonwealth, 11 Va. App. 61, 69, 396 S.E.2d
851, 856 (1990). Here, I would hold appellant was not entitled
to use reasonable force to resist his arrest because the arrest
was not unlawful in the sense required to permit him to resist
the arrest, and I concur in the majority's conclusion that the
officers used no more force than was necessary to effect the
arrest.
"In Virginia, . . . [t]he lawfulness of an attempted arrest
[for purposes of assessing an arrestee's right to resist the
arrest] is determined by [Code §§ 19.2-77, 19.2-81, and
19.2-100]." Brown v. Commonwealth, 27 Va. App. 111, 116, 497
S.E.2d 527, 530 (1998); see also Johnson v. United States, 333
U.S. 10, 15 & n.5, 68 S. Ct. 367, 370 & n.5, 92 L. Ed. 436, 441
& n.5 (1948) (in reviewing reasonableness of search claimed
constitutional as incident to arrest, holding state law
"determine[s] whether the arrest itself was lawful"). Code
§ 19.2-81, the statute applicable here, provides in pertinent
part that a sheriff's deputy "may arrest, without a warrant, any
person who commits any crime in the presence of the officer and
any person whom he has reasonable grounds or probable cause to
suspect of having committed a felony not in his presence."
Thus, "[t]he dispositive question is whether the officers had
- 27 -
probable cause to arrest . . . ." Smith v. Commonwealth, 30
Va. App. 737, 740, 519 S.E.2d 831, 832 (1999).
No Virginia appellate decision holds that an arrest is
unlawful for purposes of entitling the arrestee to resist the
arrest simply because the evidence which provides probable cause
for the arrest is obtained in a search or seizure that is
unreasonable under the Fourth Amendment. Cf. Commonwealth v.
Hill, 264 Va. ___, ___, 570 S.E.2d 805, ___ (Nov. 1, 2002) (in
holding no right exists to resist an unlawful detention without
revisiting the continuing validity of the right to resist an
unlawful arrest, noting that "'"[c]lose questions as to whether
an officer possesses articulable suspicion must be resolved in
the courtroom and not fought out on the streets"'" (quoting
State v. Wiegmann, 714 A.2d 841, 849-50 (Md. 1998) (quoting
State v. Blackman, 617 A.2d 619, 630 (Md. Ct. Spec. App.
1992)))). Further, the Ninth Circuit Court of Appeals has held
that an arrest flowing from an unreasonable search which yields
marijuana is not "unlawful" in the sense required to permit the
arrestee to resist. United States v. Moore, 483 F.2d 1361,
1364-65 (9th Cir. 1973). As that court explained,
[t]he privilege [to resist] is available
only if the arrest was "unlawful." The
parties agree that appellant was arrested
after the agents discovered the marihuana in
his suitcase [while conducting an
unreasonable search]. The agents then had
probable cause to believe that a felony was
being committed in their presence. The
warrantless arrest was therefore lawful, in
- 28 -
itself. It was "unlawful" only in the
exclusionary-rule sense that it was "fruit"
of the prior unlawful search. We have been
cited no authority, and have found none,
that permits resistance to an arrest that is
unlawful only in this derivative sense.
Id. (emphasis added).
The court in Moore examined "[t]he purposes of the
privilege [to resist an unlawful arrest]," which it cited as
"deter[ring] abuses of police authority" and "preserv[ing] the
sense of personal liberty and integrity . . . by protecting from
punishment persons who reasonably resist unlawful intrusions by
government agents." Id. at 1365. It concluded that "the
resolution of often difficult issues relating to the lawfulness
of the search [upon which the challenged arrest was based] are
surely best left to subsequent court proceedings." Id.; see
also Hill, 264 Va. at ___, 570 S.E.2d at ___. As a result, the
court was "unwilling," under the facts of that case, "to
initiate . . . an extension of the privilege [to resist]" an
arrest that was unlawful only in a "derivative sense." 6 Moore,
483 F.2d at 1365.
6
The court indicated in Moore that it might be willing to
extend the right to resist an arrest supported by probable cause
if the arrestee "claim[ed] . . . bad faith, unreasonable force,
or provocative conduct on the part of the arresting officer."
473 F.2d at 1365; see also United States v. Span, 970 F.2d 573,
579-80 (9th Cir. 1992).
Assuming that whether the officer acted in bad faith would
be relevant under Virginia law, see Brown, 27 Va. App. at 116,
497 S.E.2d at 530 (holding that where officer makes arrest
without valid warrant or probable cause, arrest is unlawful and
whether officer acted in good faith is irrelevant to arrestee's
- 29 -
Similarly, in appellant's case, the arrest was unlawful
only in a "derivative sense." Id. Assuming the entry and the
weapons frisk violated the Fourth Amendment's prohibition
against unreasonable searches and seizures, the evidence
establishes that "appellant was arrested after [Deputy Dollar]
discovered the mari[j]uana in his [pocket]. [Deputy Dollar]
then had probable cause to believe that a [crime] was being
committed in [his] presence. The warrantless arrest was
therefore lawful, in itself," even if unlawful in a "derivative
sense." Id. at 1364-65; see Code § 19.2-81. Assuming without
deciding that appellant would have been privileged to use
reasonable force to resist the entry or the weapons frisk or
both, but see Hill, 264 Va. at ___, 570 S.E.2d at ___, appellant
lost the privilege to resist his subsequent arrest once Deputy
Dollar discovered marijuana in his possession, even if Dollar's
right to resist that unlawful arrest); Foote, 11 Va. App. at 67,
396 S.E.2d at 855 (holding that where officer makes arrest based
on radio transmission regarding existence of charges against
particular person in another jurisdiction but does not obtain
name or reasonably accurate description of person to confirm
arrestee is the person wanted, arrest is unlawful and whether
officer acted in good faith is irrelevant to arrestee's right to
resist that unlawful arrest), no evidence established that
Deputy Dollar acted in bad faith. As counsel for appellant
conceded in argument, "I don't need to come in here to Court and
say, bad cop, bad cop, [I] don't believe that. The simple fact
is these two officers have nine months of experience between
them. . . . I think what happened was, adrenalin[e] took over,
. . . and the Fourth Amendment went out the window."
Further, as discussed in the majority opinion, Virginia law
recognizes a right to resist an arrest involving excessive
force, and this right did not apply under the facts of this
case.
- 30 -
discovery of the marijuana resulted from an unreasonable entry
and search.
- 31 -
II.
In sum, I would hold that, although Deputy Dollar was
rightly in appellant's presence, the weapons frisk violated the
Fourth Amendment because the presence of a bulge in appellant's
pocket was insufficient under the facts of this case to provide
reasonable suspicion that appellant was armed and dangerous.
However, I would also hold that appellant had no right to resist
his arrest for possession of marijuana. Thus, I concur in the
majority's affirmance of appellant's two convictions for assault
and battery of a law enforcement officer but dissent from its
affirmance of the conviction for marijuana possession.
- 32 -
Wednesday 12th
June, 2002.
Benjamin Wayne McCracken, Appellant,
against Record No. 2912-00-3
Circuit Court Nos. CR00-259, CR00-260 and
CR00-262
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before the Full Court
On May 28, 2002 came the appellant, by court-appointed
counsel, and filed a petition praying that the Court set aside
the judgment rendered herein on May 14, 2002, and grant a
rehearing en banc thereof.
On consideration whereof, the petition for rehearing en
banc is granted, the mandate entered herein on May 14, 2002 is
stayed pending the decision of the Court en banc, and the appeal
is reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule
5A:35. The appellant shall attach as an addendum to the opening
brief upon rehearing en banc a copy of the opinion previously
rendered by the Court in this matter. It is further ordered that
the
appellant shall file with the clerk of this Court twelve
additional copies of the appendix previously filed in this case.
A Copy,
- 33 -
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
- 34 -
COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bumgardner
Argued at Salem, Virginia
BENJAMIN WAYNE McCRACKEN
MEMORANDUM OPINION * BY
v. Record No. 2912-00-3 JUDGE LARRY G. ELDER
MAY 14, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Nicholas E. Persin, Judge
John B. Coleman (Scyphers & Austin, P.C., on
brief), for appellant.
Virginia B. Theisen, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Benjamin Wayne McCracken (appellant) appeals from his jury
trial convictions for marijuana possession and two counts of
assault and battery on a law enforcement officer. On appeal, he
contends the trial court erroneously denied his motion to
suppress because the officer's warrantless entry and weapons
frisk violated the Fourth Amendment proscription against
unreasonable searches and seizures. As a result, appellant
argues, his arrest for marijuana possession was unlawful.
Because the arrest was unlawful and because the officers used
excessive force in effecting the arrest, he contends, he was
entitled to use reasonable force to resist.
We hold in Part II.A. that the trial court erred in refusing
to suppress the marijuana discovered in the weapons frisk and to
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
- 35 -
dismiss the marijuana possession charge. However, we hold in
Part II.B. that appellant was not entitled to resist the
warrantless arrest, which was based on probable cause and met the
requirements of Code § 19.2-81. Thus, we reverse and dismiss
appellant's conviction for marijuana possession and affirm his
two convictions for assault and battery on a law enforcement
officer. 7
I.
BACKGROUND
As of April 8, 2000, appellant and Teresa Fields were
romantically involved and had resided together in Fields'
residence for about two-and-one-half years. That morning, Fields
and appellant had an argument, and around noon, Fields called 911
to have appellant removed from her residence. Uniformed
Sheriff's Deputies Resinol L. Dollar, Jr., and Jason D. Sexton
responded to the "[911] domestic disturbance call at Teresa
Fields' residence." Upon their arrival, the deputies heard
"verbal arguing." Appellant was "irritable," but "[t]here was no
violent confrontation[]," and Deputy Dollar said the situation
"seemed to have been not very escalated." Appellant "agreed to
leave" and go stay with his mother. The deputies supervised
appellant's collection of his belongings, and they told Fields to
7
For the reasons set out in his attached opinion, Judge
Benton "substantially concur[s]" in both the reasoning and
result of Part II.A., which reverses and dismisses appellant's
conviction for marijuana possession. Judge Bumgardner concurs
in the result of Part II.B., which affirms appellant's
convictions for assault and battery. Thus, the marijuana
possession conviction is reversed and dismissed by Judges Elder
and Benton, with Judge Bumgardner dissenting, and the assault
and battery convictions are affirmed by Judges Elder and
- 36 -
call them "if [she] had anymore trouble." After forty-five
minutes to an hour, appellant and the deputies departed.
After appellant arrived at his mother's residence, appellant
telephoned Fields. During that conversation, appellant and
Fields were "still agitated," "upset" and "very angry." Shortly
after the conversation ended, appellant's mother called Fields to
tell her that appellant was on his way back to Fields' residence.
Fields then called 911 a second time and told the dispatcher that
appellant was on his way back to her house. The dispatcher told
her to "lock [her] doors," and he notified Deputies Dollar and
Sexton to return to Fields' residence on a "domestic call."
When Deputy Dollar arrived, he found neighbors in the front
yard "screaming" and "hollering," and he also "could hear [Fields
and appellant inside the house] verbally arguing back and forth."
Knowing that Fields had "called [the 911 dispatcher] for
assistance," Deputy Dollar drew his weapon, pointed it at the
ground, and entered the residence, without knocking, through the
closed screen and partially open "main door."
Upon entering, Dollar saw Fields and appellant standing four
to six feet apart. Dollar noticed nothing odd about Fields'
condition or appearance. Appellant had nothing in his hands, but
Dollar saw a bulge in appellant's right front pants pocket, and
he asked appellant to place his hands on the wall so that Dollar
could "make sure [appellant] didn't have any weapons." Appellant
kept moving away from Dollar but finally put his hands on the
back of a love seat.
Bumgardner, with Judge Benton dissenting.
- 37 -
While appellant leaned on the love seat, Dollar put one of
his hands in the center of appellant's back, holstered his weapon
and patted the bulge in appellant's pocket. The bulge was "a
hard rigid object." When Dollar attempted to retrieve the
object, he instead pulled out a baggie containing 2.1 grams of
marijuana which had been on top of the hard object, and he asked
appellant what he had found. Appellant "was becoming very
agitated" and "jerked away" from Dollar, and Dollar was unable to
"retrieve the rigid object out of [appellant's] pocket after
that."
Dollar told appellant he was under arrest for marijuana
possession, but appellant resisted Dollar's instructions to put
his hands behind his back. Appellant "kept easing away" and told
Dollar he was "just there to get some more of his belongings,"
including "his gun." Appellant then "started going from the
living room to the kitchen at a real quick pace, going toward the
back of the house."
Deputy Dollar told appellant to stop, "[got] ahold of
[appellant]" from behind and "[tried] to subdue him." Appellant
resisted, despite Dollar's verbal instructions. Dollar then used
his baton, striking appellant on the thigh and leg, but appellant
"was still fighting and kicking and trying to push off the wall
back toward [Dollar]." Deputy Dollar then slipped while still
holding onto appellant's waist, and appellant "struck [him]
across the face when [Deputy Dollar] fell." Appellant put Dollar
"in a sort of choking headlock" which covered Dollar's nose and
mouth. Dollar was unable to breathe and "was getting very
concerned for [his] safety."
- 38 -
About that time, Deputy Sexton arrived and saw appellant and
Deputy Dollar on the floor of the kitchen. When Sexton attempted
to get appellant to release his hold on Deputy Dollar, appellant
"threw his left elbow back and struck [Sexton] in the ribs."
Sexton then sprayed appellant with pepper spray in an effort to
get appellant to release Deputy Dollar. Appellant, recognizing
Sexton was a law enforcement officer, said, "'That tear gas ain't
shit, cop,' and then he returned his attention to Deputy Dollar."
Deputy Dollar managed to grab one of appellant's arms.
While Deputy Sexton held appellant's other arm, appellant kicked
the right side of Sexton's face and his right knee. Appellant
was "doing his best to keep Deputy Dollar from [handcuffing]
him," but the deputies finally succeeded and transported him to
the jail.
A search of Fields' residence revealed a rifle belonging to
appellant was behind the door of the bedroom located five feet
from the site in the kitchen where the struggle took place. A
search of appellant at the jail revealed a folding knife in his
right front pocket, the same pocket in which Deputy Dollar had
felt the hard object and from which he had recovered the baggie
of marijuana.
II.
ANALYSIS
A.
WEAPONS FRISK
Appellant contends that the trial court erroneously denied
his motion to suppress the marijuana because both Dollar's second
entry of Fields' residence and his frisk of appellant for weapons
- 39 -
were unreasonable. Assuming, for purposes of analyzing the
frisk, that Deputy Dollar's second entry of Fields' residence was
reasonable, we nevertheless hold that the frisk violated the
Fourth Amendment because Dollar lacked reasonable suspicion to
believe appellant was armed and dangerous.
On appeal of the denial of a motion to suppress, we view the
evidence in the light most favorable to the Commonwealth.
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
support them," McGee v. Commonwealth, 25 Va. App. 193, 198, 487
S.E.2d 259, 261 (1997) (en banc), but we review de novo the trial
court's application of legal standards such as reasonable
suspicion to the particular facts of the case, see Ornelas v.
United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134
L. Ed. 2d 911 (1996).
In order for an officer to conduct a weapons frisk, two
conditions must exist. First, the officer must rightly be in the
presence of the party frisked so as to be endangered if the
person is armed. See, e.g., 4 Wayne R. LaFave, Search and
Seizure § 9.5, at 246 (3d ed. 1996). Second, the officer must be
able to point to "'specific and articulable facts'" "which
reasonably lead[] him to conclude, in light of his experience,
. . . that the suspect 'may be armed and presently dangerous.'"
Lansdown v. Commonwealth, 226 Va. 204, 209, 308 S.E.2d 106, 110
(1983) (quoting Terry v. Ohio, 392 U.S. 1, 21, 30, 88 S. Ct.
1868, 1880, 1884, 20 L. Ed. 2d 889 (1968)).
- 40 -
In assessing whether a particular person may be armed and
dangerous, an officer may consider "characteristics of the area
surrounding the stop, the time of the stop, the specific conduct
of the suspect individual, the character of the offense under
suspicion, and the unique perspective of a police officer trained
and experienced in the detection of crime." Christian v.
Commonwealth, 33 Va. App. 704, 714, 536 S.E.2d 477, 482 (2000)
(en banc) (footnote omitted). "An officer may not, simply by
observing some item causing a 'bulge' in one's clothing, conduct
a general frisk where the nature of the bulge or the surrounding
circumstances do not reasonably support the conclusion that . . .
the person is armed and dangerous." Stanley v. Commonwealth, 16
Va. App. 873, 877, 433 S.E.2d 512, 515 (1993); see also United
States v. Wilson, 953 F.2d 116, 125 (4th Cir. 1991) (holding
that, absent additional evidence, seeing "a bulge [in clothing of
person at airport] is not the sort of observation that has any
significance"). Compare Stanley, 16 Va. App. at 876, 433 S.E.2d
at 514 (holding the Fourth Amendment "does not legitimize a
patdown search of someone stopped for a routine traffic offense
simply because he is carrying an item the size and configuration
of a wallet or checkbook in his front pants pocket"), with
Troncoso v. Commonwealth, 12 Va. App. 942, 945, 407 S.E.2d 349,
350-51 (1991) (holding that if bulge observed in stomach area of
driver during routine traffic stop is accompanied by fidgeting,
nervousness, and effort to conceal bulge, officer's belief that
subject may be armed and dangerous is reasonable).
Here, assuming without deciding that Deputy Dollar was
rightly in the presence of appellant when he entered Fields'
- 41 -
residence in response to her second 911 call, the evidence did
not provide Deputy Dollar with reasonable, articulable suspicion
to conclude that the object in appellant's pocket may have been a
weapon. Although Deputy Dollar was responding to a 911 "domestic
call" at Fields' residence for the second time that day, the
first call involved only "verbal arguing," was "not very
escalated," and resolved peacefully with no indication that
either party possessed a weapon or was predisposed to use
violence toward the other or toward the deputies. When Deputy
Dollar returned the second time, neighbors were in the front
yard yelling, and Dollar heard the parties inside "verbally
arguing back and forth" while he stood on the front porch, but
Dollar did not testify that he overheard either party threaten
the other or that he heard anything indicating physical violence
or abuse.
When Dollar entered unannounced, he immediately saw Fields
and appellant standing at least four feet apart, he noticed
nothing unusual about Fields' appearance, and he saw nothing in
either party's hands. Although he noticed appellant's right
front pocket was "bulging" and concluded that appellant had
"something" inside his pocket, Dollar articulated no specific
basis for believing that "something" might be a weapon. Before
Deputy Dollar attempted to frisk appellant for weapons, appellant
engaged in no additional behavior and made no statements tending
to indicate that he was armed and presently posed a danger to
Fields or Deputy Dollar.
Thus, we conclude Deputy Dollar lacked reasonable
articulable suspicion to believe appellant was both armed and
- 42 -
presently dangerous when Dollar told appellant he intended to
frisk appellant for weapons. We recognize that domestic disputes
often are fraught with danger for both their participants and the
law enforcement officers trying to diffuse them. See, e.g.,
Fletcher v. Town of Clinton, 196 F.3d 41, 50 (1st Cir. 1999)
(noting that in domestic disputes, "violence may be lurking and
explode with little warning"). Nevertheless, we are unwilling to
hold that an officer responding to a verbal domestic dispute may
frisk a party to the dispute solely because that party has an
unidentified "bulge" in his pocket. Accordingly, we hold that
Deputy Dollar's frisk of appellant and search of his pocket were
unreasonable and that the fruits of that search should have been
suppressed. Because no evidence other than the illegally seized
marijuana supported appellant's conviction for marijuana
possession, we reverse that conviction and dismiss the underlying
charge.
B.
ASSAULT AND BATTERY ON A LAW ENFORCEMENT OFFICER 8
"An unlawful arrest or an arrest utilizing excessive force
is a battery because that touching is not justified or excused
8
Part II.B. represents the opinion only of Judge Elder.
Judge Bumgardner concurs only in the resulting affirmance of the
assault and battery convictions.
- 43 -
and therefore is unlawful." Gnadt v. Commonwealth, 27 Va. App.
148, 151, 497 S.E.2d 887, 888 (1998). In either case, the
arrestee may use reasonable force to resist the arrest. See
Palmer v. Commonwealth, 143 Va. 592, 602-03, 130 S.E. 398, 401
(1925); Foote v. Commonwealth, 11 Va. App. 61, 69, 396 S.E.2d
851, 856 (1990). Here, appellant was not entitled to use
reasonable force to resist his arrest (1) because the arrest was
not unlawful in the sense required to permit him to resist the
arrest and (2) because the evidence, viewed in the light most
favorable to the Commonwealth, establishes that the officers used
no more force than was necessary to effect that arrest.
1. Lawfulness of Arrest
"In Virginia, . . . [t]he lawfulness of an attempted arrest
[for purposes of assessing an arrestee's right to resist the
arrest] is determined by [Code §§ 19.2-77, 19.2-81, and
19.2-100]." Brown v. Commonwealth, 27 Va. App. 111, 116, 497
S.E.2d 527, 530 (1998); see also Johnson v. United States, 333
U.S. 10, 15 & n.5, 68 S. Ct. 367, 370 & n.5, 92 L. Ed. 436, 441 &
n.5 (1948) (in reviewing reasonableness of search claimed
constitutional as incident to arrest, holding state law
"determine[s] whether the arrest itself was lawful"). Code
§ 19.2-81, the statute applicable here, provides in pertinent
part that a sheriff's deputy "may arrest, without a warrant, any
person who commits any crime in the presence of the officer and
any person whom he has reasonable grounds or probable cause to
suspect of having committed a felony not in his presence." Thus,
"[t]he dispositive question is whether the officers had probable
- 44 -
cause to arrest . . . ." Smith v. Commonwealth, 30 Va. App. 737,
740, 519 S.E.2d 831, 832 (1999).
No Virginia appellate decision holds that an arrest is
unlawful for purposes of entitling the arrestee to resist the
arrest simply because the evidence which provides probable cause
for the arrest is obtained in a search or seizure that is
unreasonable under the Fourth Amendment. Cf. Hill v.
Commonwealth, 37 Va. App. 1, 553 S.E.2d 529 (2001) (holding
detention not based on reasonable suspicion or probable cause was
illegal and detainee was entitled to use reasonable force to
resist). Further, the Ninth Circuit Court of Appeals has held
that an arrest flowing from an unreasonable search which yields
marijuana is not "unlawful" in the sense required to permit the
arrestee to resist. United States v. Moore, 483 F.2d 1361,
1364-65 (9th Cir. 1973). As that Court explained,
[t]he privilege [to resist] is available only
if the arrest was "unlawful." The parties
agree that appellant was arrested after the
agents discovered the marihuana in his
suitcase [while conducting an unreasonable
search]. The agents then had probable cause
to believe that a felony was being committed
in their presence. The warrantless arrest
was therefore lawful, in itself. It was
"unlawful" only in the exclusionary-rule
sense that it was "fruit" of the prior
unlawful search. We have been cited no
authority, and have found none,
- 45 -
that permits resistance to an arrest that is
unlawful only in this derivative sense.
Id. (emphasis added).
The Court in Moore examined "[t]he purposes of the privilege
[to resist an unlawful arrest]," which it cited as "deter[ring]
abuses of police authority" and "preserv[ing] the sense of
personal liberty and integrity . . . by protecting from
punishment persons who reasonably resist unlawful intrusions by
government agents." Id. at 1365. It concluded that "the
resolution of often difficult issues relating to the lawfulness
of the search [upon which the challenged arrest was based] are
surely best left to subsequent court proceedings." Id. As a
result, the Court was "unwilling," under the facts of that case,
"to initiate . . . an extension of the privilege [to resist]" an
arrest that was unlawful only in a "derivative sense." 9 Id.
Similarly, in appellant's case, the arrest was unlawful only
in a "derivative sense." Id. Assuming the entry and the weapons
9
The Court indicated in Moore that it might be willing to
extend the right to resist an arrest supported by probable cause
if the arrestee "claim[ed] . . . bad faith, unreasonable force,
or provocative conduct on the part of the arresting officer."
473 F.2d at 1365; see also United States v. Span, 970 F.2d 573,
579-80 (9th Cir. 1992).
Assuming that whether the officer acted in bad faith is
relevant under Virginia law, see Brown, 27 Va. App. at 116, 497
S.E.2d at 530; Foote, 11 Va. App. at 67, 396 S.E.2d at 855, no
evidence established that Deputy Dollar acted in bad faith. As
counsel for appellant conceded in argument, "I don't need to come
in here to Court and say, bad cop, bad cop, [I] don't believe
that. The simple fact is these two officers have nine months of
experience between them. . . . I think what happened was,
adrenalin[e] took over, . . . and the Fourth Amendment went out
the window."
Further, as discussed infra in the text, Virginia law
recognizes a right to resist an arrest involving excessive force,
and this right did not apply under the facts of this case.
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frisk violated the Fourth Amendment's prohibition against
unreasonable searches and seizures, the evidence establishes that
"appellant was arrested after [Deputy Dollar] discovered the
mari[j]uana in his [pocket]. [Deputy Dollar] then had probable
cause to believe that a [crime] was being committed in [his]
presence. The warrantless arrest was therefore lawful, in
itself," even if unlawful in a "derivative sense." Id. at
1364-65; see Code § 19.2-81. Assuming without deciding that
appellant would have been privileged to use reasonable force to
resist the entry or the weapons frisk or both, see Hill, 37 Va.
App. at 6-7, 553 S.E.2d at 532, appellant lost the privilege to
resist his subsequent arrest once Deputy Dollar discovered
marijuana in his possession, even if Dollar's discovery of the
marijuana resulted from an unreasonable entry and search.
2. Force Used to Effect the Arrest
"[W]hen an officer attempts to arrest a person charged with
a felony and uses more force than is reasonably necessary to make
the arrest, the officer himself becomes a wrongdoer and the
person whose arrest is sought, if himself without fault, can
resist such excessive force . . . ." Palmer, 143 Va. at 602-03,
130 S.E. at 401. Whether the force used is reasonable is a mixed
question of law and fact. See Brown, 27 Va. App. at 117, 497
S.E.2d at 530. In reviewing the factual predicate for the trial
court's ruling, we view the evidence in the light most favorable
to the Commonwealth. See Smith, 30 Va. App. at 740, 519 S.E.2d
at 832.
None of Deputy Dollar's or Deputy Sexton's actions
constituted excessive force in light of appellant's attempts to
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resist. Fields testified that Deputy Dollar pushed appellant's
head into a window unnecessarily while frisking appellant for
weapons. However, the fact finder was entitled to reject Fields'
explanation as to how the window was broken and to conclude that
the damage occurred either prior to Dollar's encounter with
appellant or, if during the encounter, in an accidental fashion.
Further, even accepting Fields' testimony as to what occurred
during the weapons frisk, Fields admitted that appellant refused
to comply with Deputy Dollar's request to him to remain still
during the frisk, permitting the inference that Dollar was simply
attempting to maintain control of appellant and did not use
unreasonable force in doing so. Finally, Deputy Dollar's use of
force during the weapons frisk did not entitle appellant to
resist the subsequent arrest for marijuana possession by
assaulting and battering the deputies. Assuming without deciding
appellant was entitled to resist the frisk because it was not
supported by reasonable suspicion, see Hill, 37 Va. App. at 6-7,
553 S.E.2d at 532, the arrest itself was based on probable cause
resulting from Dollar's discovery of the marijuana.
When Deputy Dollar told appellant he was placing appellant
under arrest, appellant refused to submit to Deputy Dollar's
authority. Instead, appellant said he was "just there to get
some more of his belongings," including "his gun," and he walked
to the back of the house "at a real quick pace." When Deputy
Dollar "[got] ahold of [appellant]" from behind, appellant
refused to cooperate, despite Dollar's verbal instructions and
efforts to subdue appellant physically. Only then did Dollar use
his baton, striking appellant on the thigh and leg, but appellant
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"was still fighting and kicking." When Deputy Dollar slipped,
appellant struck him across the face and placed him in a "choking
headlock" which restricted Dollar's ability to breathe.
Dollar was very concerned for his safety at that time, as
was Deputy Sexton when he entered the kitchen and found appellant
had Deputy Dollar in a headlock. As Deputy Sexton attempted to
assist Dollar, appellant struck Sexton in the ribs. Sexton then
sprayed appellant with pepper spray in an effort to get appellant
to release Dollar. Appellant, clearly recognizing Sexton as a
law enforcement officer, said, "That tear gas ain't shit, cop,"
and continued to resist. When Dollar managed to wriggle free and
the deputies tried again to subdue appellant, appellant kicked
Sexton in the face and knee. Thus, the evidence supported a
finding that, by that point in the altercation, appellant had
assaulted and battered both deputies, who had exercised only as
much force as was necessary to subdue appellant and take him into
custody.
Because the deputies did not use excessive force to arrest
and subdue appellant, the amount of force they did use did not
entitle appellant to resist.
III.
For these reasons, we hold the weapons frisk violated the
Fourth Amendment because the presence of a bulge in appellant's
pocket was insufficient under the facts of this case to provide
reasonable suspicion that appellant was armed and dangerous.
However, appellant had no right to resist his arrest for
possession of marijuana. Thus, we reverse and dismiss the
- 49 -
marijuana possession conviction and affirm the two convictions
for assault and battery of a law enforcement officer.
Affirmed, in part,
and reversed and dismissed, in part.
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Benton, J., concurring, in part, and dissenting, in part.
I substantially concur in Parts I. and II.A. and, therefore,
I concur in reversing the conviction for possession of marijuana
and dismissing the underlying charge. I do not join in the
remainder of the opinion. For the reasons that follow, I would
also reverse and dismiss the assault and battery convictions.
I.
The evidence proved that Benjamin McCracken and Teresa
Fields lived together for nearly three years in a house Fields'
father owned. Fields testified that she and McCracken argued
about noise she made while cleaning the house and that she called
the police because she "had an excruciating headache, . . .
was ill, irritable" and tired of arguing. Midday, on April 8,
2000, two officers went to the residence in response to Fields'
telephone call. One of the officers testified that they
responded to a complaint of "verbal arguing." No other evidence
proved that Fields told the police anything else during her
initial telephone call.
When the police arrived, McCracken was putting various
personal items in his car. Fields and McCracken explained that
"they'd had [a] verbal argument and that [there] had been no
assault." When asked if he was able to calm the situation, the
officer responded, "It seemed to have been not very escalated."
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The officers remained while McCracken gathered some of his
personal belongings and put them in his car. One officer
described the situation as "very peaceful" and said they helped
McCracken load some of his items. The other officer testified
that McCracken was "very friendly, he agreed to leave, and there
were no problems whatsoever." Fields testified that she and
McCracken declined "to fill out any type of papers to keep each
other away" and said "there was no purpose for that."
McCracken went to his mother's residence and later
telephoned Fields. During that conversation, McCracken and
Fields were both agitated. McCracken's mother then telephoned
Fields to inform her that McCracken was returning to collect more
of his belongings. Before McCracken arrived at the residence,
Fields telephoned the police dispatcher and requested that the
officers return to her home. The officers received the second
call about an hour and a half after they had left the residence.
Fields testified that she wanted the officers to return because
she had to go to work and did not want to be delayed by an
argument with McCracken.
The first officer to arrive testified that before entering
the residence, he heard neighbors hollering something to him.
Fields' sister testified that when she saw the officer having
difficulty opening the screen door, she called to him that "the
front door drags." The officer testified that he heard Fields
and McCracken "verbally arguing back and forth when he walked up
on the porch." Fields testified, however, that she was talking
to McCracken and that they were not arguing. The officer drew
his weapon and walked into the house without knocking.
II.
McCracken contends the officers did not have either probable
cause to believe a crime was being committed or exigent
circumstances to justify their entry. The Commonwealth responds
the "officers had probable cause at the time of their warrantless
entry to believe that cognizable exigent circumstances were
present."
The United States Supreme Court has held that, "absent
probable cause and exigent circumstances, warrantless [entries
and] arrests in the home are prohibited by the Fourth Amendment."
Welsh v. Wisconsin, 466 U.S. 740, 741 (1984); Payton v. New York,
445 U.S. 573, 590 (1980). "[W]arrantless entries into dwellings,
followed by searches, seizures, and arrests therein . . . are
presumed to be unreasonable, in Fourth Amendment terms, casting
upon the police a heavy burden of proving justification by
exigent circumstances." Verez v. Commonwealth, 230 Va. 405, 410,
337 S.E.2d 749, 752-53 (1985); Welsh, 446 U.S. at 750.
Furthermore, "[e]xigent circumstances justify a warrantless entry
. . . only when the police have probable cause to obtain a search
warrant." Alexander v. Commonwealth, 19 Va. App. 671, 674, 454
S.E.2d 39, 41 (1995).
- 53 -
The trial judge found that the officers acted reasonably in
entering the residence and denied the motion to suppress. His
findings included the following:
There is no question or at least I haven't
heard any evidence that would cause the
Court to believe that the first call was not
made by her complaining about the conduct of
[McCracken]. The officers responded. When
they got there, evidently a reasonable
inference would be that . . . Fields and
[McCracken] had come to some sort of
agreement. The officers testified that
there was no fighting or arguing, that he
was in the process of removing his property.
He was cooperative, he was loading his
vehicle, his personal items, some of his
stereo equipment. The officers even
assisted him. So there is no evidence of
any ill feeling or ill will from the first
call. But the fact remains that . . .
Fields called for help the first time. . . .
Shortly thereafter, an hour or hour and a
half later, a second call comes in. And the
evidence is unrebutted that [McCracken] is
back on her property where he was living
with her. And the Jury has heard evidence
that there was screaming on the outside, one
of the officers heard it, the other one
didn't. Officer Sexton says he didn't. And
when they go inside of the house, the Court
is of the opinion that that was reasonable.
I mean, here you had a second call where the
officers thought [McCracken] was leaving and
was cooperative and left. Now he's back on
the scene. And the owner of the property is
calling the officers again for assistance.
They respond. They come in, they observe,
they know there's been prior problems.
We have held that a call to the police dispatcher for
assistance does not, without more, give rise to probable cause to
believe a crime is occurring. Id. at 674-75, 454 S.E.2d at 41.
Indeed, the evidence proved that when Fields called the police on
the second occasion, McCracken had not arrived. Fields knew the
- 54 -
police dispatcher and told him "that [her problem with McCracken]
was just verbal." She testified that she reported no crime, that
she expected no trouble from McCracken, and that she wanted the
officers there because she had to go to work and did not want to
be delayed by an argument with McCracken. Thus, she had not
given the police dispatcher or the officers any basis to believe
McCracken would do anything other than continue to gather his
property. "Probable cause for police officers to enter a
person's [residence] must be based on more than speculation,
suspicion, or surmise that a crime might be in progress." Id.
The evidence also proved that when the police arrived in
response to the first call from Fields, McCracken had made no
threats. Although he and Fields had had an argument, the
officers testified that matters were peaceful and non-
threatening. The evidence proved Fields had not even expressed
fear of McCracken when she first called the police. Thus, the
officers could not reasonably infer from their first visit to the
house or the call before their second visit to the house that
when McCracken returned to remove more of his property he either
posed any threat to Fields or would commit a crime. Simply put,
this evidence failed to prove the officer had probable cause to
believe a crime had been or was being committed when he made the
warrentless entry into the home.
In addition, the principle is well established that "no
amount of probable cause can justify a warrantless [entry into a
home] . . . absent 'exigent circumstances.'" Coolidge v. New
Hampshire, 403 U.S. 443, 468 (1971); Payton, 445 U.S. at 590.
"Before agents of the government may invade the sanctity of the
- 55 -
home, the burden is on the government to demonstrate exigent
circumstances that overcome the presumption of unreasonableness
that attaches to all warrantless home entries." Welsh, 466 U.S.
at 750. The evidence proved that McCracken had never physically
abused Fields and that she had no fear of him. Moreover, Fields
did not tell the police dispatcher McCracken had threatened her.
She testified she has known the dispatcher "for years" and told
him her only concern was the arguments. She merely wanted
someone there to prevent another argument. Although the trial
judge could believe the officer's testimony that he heard
argument and disbelieve Fields' testimony that she and McCracken
were not arguing, the mere occurrence of an argument is not
indicative of a threat to life or serious injury. The officer
had no other basis to believe an emergency existed. As in
Shannon v. Commonwealth, 18 Va. App. 31, 34, 441 S.E.2d 225, 226,
aff'd on reh'g en banc, 19 Va. App. 145, 449 S.E.2d 584 (1994),
and Alexander, this evidence contains no basis upon which the
police officers could have concluded that an emergency existed.
Thus, the Commonwealth failed to meet its "heavy burden" of
proving exigent circumstances existed justifying the warrantless
entry. Alexander, 19 Va. App. at 674, 454 S.E.2d at 41.
III.
"At the very core [of the Fourth Amendment] stands the right
of a [person] to retreat into his [or her] own home and there be
free from unreasonable governmental intrusion." Silverman v.
United States, 365 U.S. 505, 511 (1961). "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, 466
- 56 -
U.S. at 748 (citation omitted). "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."
Payton, 445 U.S. at 589-90. Thus, the Supreme Court has
reiterated that it "held in Payton . . . that a suspect should
not be arrested in his house without an arrest warrant, even
though there is probable cause to arrest him." Minnesota v.
Olson, 495 U.S. 91, 95 (1990).
Indeed, the principle is well established and long standing
that an unlawful, warrantless entry by a police officer into a
residence renders void an arrest which is founded upon a
discovery inside the residence after the unlawful entry. Johnson
v. United States, 333 U.S. 10, 15-17 (1948); see also Welsh, 466
U.S. at 748-50; Payton, 445 U.S. at 588-90; Jefferson v.
Commonwealth, 27 Va. App. 1, 18, 497 S.E.2d 474, 482-83 (1998)
(holding that the "arrest of appellant . . . executed after the
officer entered the curtilage of appellant's home without a
warrant . . . violated the Fourth Amendment"). The purpose of
these decisions, holding the arrests to be void, is "to protect
[the] home from entry." Olson, 495 U.S. at 95.
An officer gaining access to private living
quarters under color of his office and of
the law which he personifies must then have
some valid basis in law for the intrusion.
Any other rule would undermine "the right of
the people to be secure in their persons,
houses, papers, and effects," and would
obliterate one of the most fundamental
distinctions between our form of government,
where officers are under the law, and the
police-state where they are the law.
Johnson, 333 U.S. at 17 (footnote omitted).
- 57 -
"It has long been held in Virginia that where an officer
attempts an unlawful arrest, the officer is an aggressor which
gives the arrestee the right to use self-defense to resist so
long as the force used is reasonable." See Brown v.
Commonwealth, 27 Va. App. 111, 116-17, 497 S.E.2d 527, 530
(1998). This principle of law treats the unlawful arrest as an
unauthorized touching and, thus, a battery against the attempted
arrestee. Thus, the Supreme Court has held that where an officer
attempts an unlawful arrest, the arrestee "could resist with such
reasonable force as was necessary to repel that being exercised
by the officer in that undertaking." Broaddus v. Standard Drug
Co., 211 Va. 645, 652, 179 S.E.2d 497, 503 (1971).
The evidence proved that McCracken initially resisted being
searched and then attempted to maneuver his way around the
officer after the officer sought to arrest him. Because the
arrest of McCracken was made after the police had unlawfully
entered the home without a warrant, McCracken had a right to use
reasonable force to resist any of the officer's conduct. The
encounter escalated to a physical altercation only when the
officer jumped onto McCracken's back. See Hill v. Commonwealth,
37 Va. App. 1, 7, 533 S.E.2d 529, 532 (2001) (holding that
striking an officer after being assaulted by the officer during
an unlawful arrest was not excessive force).
The events that gave rise to the search and arrest all
occurred within the home, after the officers had unlawfully
entered the home and upon the officer's discovery of evidence
within the home during that unlawful entry. This is precisely
the circumstance the Supreme Court's decision in Payton barred by
- 58 -
holding that "'physical entry of the home is the chief evil
against which the wording of the Fourth Amendment is directed.'"
445 U.S. at 585 (citation omitted). The rule in Payton was
derived from the "overriding respect for the sanctity of the home
that has been embedded in our traditions since the origins of the
Republic." Id. at 601. By drawing a line at the entrance to a
home, the Fourth Amendment protects the physical integrity of the
home. As the Court noted in Johnson, "officers . . . thrust[ing]
themselves into a home is . . . a grave concern not only to the
individual but to a society which chooses to dwell in reasonable
security and freedom from surveillance." 333 U.S. at 14. Based
on the unlawful entry, McCracken was not unreasonable in his
attempt to resist the unlawful arrest and did not use excessive
force in resisting.
IV.
For these reasons, I would hold that the officer's
warrantless entry into the residence violated the Fourth
Amendment. That unlawful entry negated the officer's authority
to make an arrest for events occurring inside the home.
Therefore, I would reverse all the convictions and dismiss the
indictments. See Alexander, 19 Va. App. at 675, 454 S.E.2d at
41.
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Bumgardner, J., dissenting, in part, and concurring, in part.
I do not believe the police acted unreasonably and,
therefore, conclude the trial court did not err. While I concur
in the decision to affirm the convictions of assault and battery,
I do not join that opinion.
Police officers responded to a domestic disturbance call
from Teresa Fields because she wanted the defendant removed from
her house. The defendant left voluntarily the first time.
Ninety minutes later, Fields placed a second call to the 911
emergency dispatcher because the defendant was returning to her
house. When the officers responded, neighbors were screaming
that the defendant was inside, and the officers heard him inside
arguing.
If the first officer had not entered Fields' house
immediately and investigated the domestic disturbance complaint,
he would have been derelict. Before entering the front door, the
officer had probable cause to believe the defendant was
trespassing, Code § 18.2-119, and at least, reasonable suspicion
of assault on a family member, Code § 18.2-57.2. 10
After the officer entered, he saw the bulge in the
defendant's pocket. The defendant did not cooperate and refused
to put his hands on the wall. When the defendant finally
10
In recognition of the difficulty of protecting against
domestic violence, the General Assembly increased the duties of
law-enforcement officers when responding to such incidents. See
Code § 19.2-81.3. Police are entitled to arrest without a
warrant when the violation does not occur in their presence.
They must arrest "the primary physical aggressor" if they develop
probable cause unless special circumstances exist. The police
must make written report of any incident in which they have
probable cause that "family abuse" occurred and written
explanation of the special circumstances if they do not arrest.
- 60 -
complied by putting his hands on the love seat, the officer
patted the defendant's pocket. At that point, the officer was
"authorized to take such steps as [are] reasonably necessary to
protect [his and others'] personal safety and to maintain the
status quo during the course of the stop." United States v.
Hensley, 469 U.S. 221, 235 (1985). The officer felt a hard,
rigid object, and when trying to remove it, the officer pulled
out a bag of marijuana. From that point, the officer had
probable cause to arrest for possession of marijuana, and the
defendant had no right to resist.
I believe the decisions to reverse the trial court fail to
view the evidence in the light most favorable to the
Commonwealth. By failing to take the appropriate appellate
perspective, each permits the lens of hindsight to distort its
inspection of the reasonableness of the police response to this
emergency call.
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