COURT OF APPEALS OF VIRGINIA
Present: Judge Annunziata, Senior Judge Duff and Judge Clements ∗
Argued at Alexandria, Virginia
ROBERT WEATHERS
OPINION BY
v. Record No. 1795-99-2 JUDGE ROSEMARIE ANNUNZIATA
JUNE 20, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
Robert G. O'Hara, Jr., Judge
Steven Brent Novey (Hudson Law Office, on
brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
Appellant, Robert Weathers, was convicted of possession of
cocaine with intent to distribute and sentenced to twelve years
in prison, six years of which were suspended. He contends the
trial court erred in denying his motion to suppress evidence.
We disagree and affirm.
FACTS
When we review a trial court's denial of a motion to
suppress, we must view the facts in the light most favorable to
the Commonwealth, the prevailing party below, and grant to it
∗
Judge Jean H. Clements took part in the consideration of
this case by designation pursuant to Code § 17.1-400,
recodifying Code § 17-116.01.
all reasonable inferences that are fairly deducible from that
evidence. See Commonwealth v. Grimstead, 12 Va. App. 1066,
1067, 407 S.E.2d 47, 48 (1991). On October 29, 1998, Lieutenant
Alvin Pair of the Greensville County Sheriff's Department sent a
confidential informant to Room 117 of the Dixie Motel in order
to make a controlled purchase of cocaine. Pair searched the
informant beforehand to determine that he had no drugs on his
person and gave him a marked twenty dollar bill to use to
purchase cocaine. Police surveillance was positioned outside
the motel room while the informant knocked on the door. Robert
Ferguson, a codefendant, opened the door, stepped outside the
room, looked around, and allowed the informant to enter, closing
the door after the informant was inside. Soon thereafter,
Ferguson walked out of the room again and looked around,
whereupon the informant exited the room, got into his car, drove
a short distance away, and met the police. The informant gave
the police the crack cocaine he had just purchased, and a search
of his person established that he no longer had possession of
the marked twenty dollar bill.
Pair and two other officers "immediately went back to Room
117." Pair knocked on the door. One of the occupants asked who
was there. Pair identified himself and said, "Police, open the
door." The immediate reply from inside the room was, "wait a
minute." Pair then heard voices, movements and a commode being
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flushed, whereupon he knocked on the door again. Ferguson
opened the door and, after he and Weathers exited the room and
were placed in custody, the officers entered. They searched the
room and found cocaine located in and around the commode. The
marked bill was found on Weathers' person, together with
additional cash and a single-edged razor.
On July 22, 1999, Weathers was tried for possession of
cocaine with intent to distribute and was convicted on that
charge. This appeal followed.
ANALYSIS
"'Ultimate questions of reasonable suspicion and probable
cause' . . . involve questions of both law and fact and are
reviewed de novo on appeal." McGee v. Commonwealth, 25 Va. App.
193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc) (quoting
Ornelas v. United States, 517 U.S. 690, 691 (1996)). In
performing this Fourth Amendment analysis, "we are bound by the
trial court's findings of historical fact unless 'plainly wrong'
or without evidence to support them and we give due weight to
the inferences drawn from those facts by resident judges and
local law enforcement officers." Id. (citing Ornelas, 517 U.S.
at 699). Likewise, the determination of whether there was an
improper seizure is subject to consideration de novo. See id.
In conducting this review, great deference is afforded the
"peculiar fact finding capability of the trial court" because it
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is "not limited to the stark, written record," but "has before
it the living witnesses and can observe their demeanors and
inflections." Satchell v. Commonwealth, 20 Va. App. 641, 648,
460 S.E.2d 253, 256 (1995).
The touchstone of a Fourth Amendment analysis is
reasonableness under the facts and circumstances of the case.
See Pierson v. Commonwealth, 16 Va. App. 202, 204, 428 S.E.2d
758, 760 (1993) (citing Michigan v. Long, 463 U.S. 1032, 1051
(1983)) (additional citation omitted). Because a warrantless
entry and search of a motel room is presumptively unreasonable,
see Shannon v. Commonwealth, 18 Va. App. 31, 33, 441 S.E.2d 225,
226 (1994), aff'd, 19 Va. App. 145, 449 S.E.2d 584 (1994) (en
banc), the Commonwealth has a heavy burden at trial to show that
the warrantless entry was justified. See Reynolds v.
Commonwealth, 9 Va. App. 430, 435-36, 388 S.E.2d 659, 663 (1990)
(citing Commonwealth v. Verez, 230 Va. 405, 410, 337 S.E.2d 749,
753 (1985)). However, on appeal, the defendant has the burden
to show the denial of a motion to suppress evidence constitutes
reversible error. See Motley v. Commonwealth, 17 Va. App. 439,
440-41, 437 S.E.2d 232, 233 (1993).
Weathers contends that by knocking on the door and stating,
"Police, open the door," Pair "constructively entered" the motel
room and seized Weathers and Ferguson. We disagree. No seizure
can occur before the defendant is either physically seized or
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complies with a police officer's show of authority. See Cochran
v. Commonwealth, 258 Va. 604, 608, 521 S.E.2d 287, 289 (1999);
Woodson v. Commonwealth, 245 Va. 401, 404-05, 429 S.E.2d 27, 29
(1993). 1 Thus, Weathers was not seized until Ferguson opened the
door and the two men stepped outside and were placed in custody.
Weathers further contends that the seizure that occurred
when Ferguson opened the door was unlawful because the door was
not opened voluntarily in response to the police command and
there were no "exigent circumstances" warranting such a seizure.
We agree that the door to the motel room was not voluntarily
opened in response to the police command, see Lugar v.
Commonwealth, 214 Va. 609, 610, 202 S.E.2d 894, 896 (1974), but
we do not agree that there were no exigent circumstances
warranting police entry at that time. Accordingly, there being
exigent circumstances, the search and seizure which ensued were
lawful.
1
Weathers contends that our decision in McGee, 25 Va. App.
193, 487 S.E.2d 259, implicitly recognized that a Fourth
Amendment seizure may occur before the defendant has submitted
to a show of authority by police. Weathers mischaracterizes
McGee. In that case, we held the defendant was seized when he
was approached by three police officers as he was sitting on a
porch and was told by the police that he matched the description
of a man reported to be selling drugs in the area. The
defendant did not flee or resist, and there was no delay between
his initial contact with the police and the effectiveness of the
seizure. Thus, he was not seized before he complied with the
police, because his compliance was immediate.
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Whether Ferguson voluntarily opened the door is a question
of fact to be determined from all the circumstances. Consent
cannot be the product of coercion or duress. See Cosby v.
Commonwealth, 6 Va. App. 193, 197-98, 367 S.E.2d 730, 733
(1988). Among the factors to be considered in determining
whether a reasonable person under the circumstances would have
believed he or she was not free to ignore the request of the
officer are: "the threatening presence of several officers, the
display of a weapon by an officer, some physical touching of the
person of the citizen, or the use of language, or tone of voice
indicating that compliance with the officer's request might be
compelled." United States v. Mendenhall, 446 U.S. 544, 554
(1980) (emphasis added); see Baldwin v. Commonwealth, 243 Va.
191, 199, 413 S.E.2d 645, 649 (1992); see also United States v.
Morales, 171 F.3d 978, 980 (5th Cir. 1999) (defendants were
seized when they complied with police officers' knock on door,
accompanied by the words "Fort Worth Police: open the door";
court considered the loudness of the officers' knocking, the
tone and volume of voice used by the officers, and the
authoritative manner of speaking).
Given the compelling nature of Pair's command, "Police,
open the door," a reasonable person inside the motel room would
not have felt free to ignore it. The encounter between the
police and the occupants, therefore, cannot be construed as
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consensual. However, no seizure occurred in this case until
Ferguson complied with the officer's show of authority by
opening the door. It is at this juncture that we must apply the
Fourth Amendment analysis. See Cochran, 258 Va. at 608, 521
S.E.2d at 289; Woodson, 245 Va. at 404-05, 429 S.E.2d at 29; see
also Morales, 171 F.3d at 983.
"[E]xigent circumstances that will justify a warrantless
search include . . . the risk of loss or destruction of
evidence." Hayes v. Commonwealth, 29 Va. App. 647, 656, 514
S.E.2d 357, 361 (1999) (citing Helms v. Commonwealth, 10
Va. App. 368, 371, 392 S.E.2d 496, 497 (1990)) (footnote
omitted).
[I]n determining whether exigent
circumstances were sufficient to overcome
the presumption of unreasonableness and
justify a warrantless entry, the court must
examine the circumstances as they reasonably
appeared to the law enforcement officers on
the scene. The officers are not required to
possess either the gift of prophecy or the
infallible wisdom that comes 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.
Verez, 230 Va. at 411, 337 S.E.2d at 753. At the moment
Ferguson finally complied with Pair's command by opening the
door, the officers had only minutes earlier obtained information
from their informant that gave them probable cause to believe
Weathers and Ferguson possessed illegal drugs and were
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distributing them from the motel room. Lieutenant Pair and his
fellow officers had also just heard various noises from inside
the room consistent with the destruction of evidence, in
apparent reaction to Pair's command, "Police, open the door."
Given this knowledge, the officers reasonably perceived exigent
circumstances warranting their immediate entry of the motel room
to search for drug evidence before such evidence might be
irretrievably lost. We will not require them "to possess either
the gift of prophecy or the infallible wisdom that comes with
hindsight," id., by holding that they should have waited to
obtain a search warrant before entering the room to search for
drug evidence. Their immediate search was warranted, and we
find no error.
Additionally, the police had probable cause, based on the
evidence gleaned from the informant, to arrest Weathers and
Ferguson for distribution of cocaine, and the officers' search
of Weathers' person was made incident to his arrest. The search
was, therefore, valid, and the evidence obtained as a result was
admissible at trial. See Buck v. Commonwealth, 20 Va. App. 298,
304, 456 S.E.2d 534, 536-37 (1995).
For the foregoing reasons, we affirm the conviction.
Affirmed.
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