Washington v. Com.

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Coleman, *
Willis, Elder, Bray, Bumgardner and Senior Judge Baker
Argued at Richmond, Virginia

WELFORD V. WASHINGTON
OPINION BY
v. Record No. 0230-96-2 JUDGE RUDOLPH BUMGARDNER, III
JANUARY 19, 1999
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge

Patricia P. Nagel, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.

Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

Welford V. Washington appeals his convictions of possession

of heroin and of cocaine. He contends that the trial court erred

in denying his motion to suppress evidence found when the police

seized him and entered his home. A panel of this Court reversed

the convictions. See Washington v. Commonwealth, 26 Va. App.

657, 496 S.E.2d 135 (1998). Upon a rehearing en banc, we affirm

his convictions.

Reginald Ford was free on bond, but a felony capias had been

issued for his arrest. His bondsman received a tip from an

*
Judge Baker participated in the hearing and decision of
this case prior to the effective date of his retirement on July
31, 1998 and thereafter by his designation as senior judge
pursuant to Code § 17.1-400, recodifying Code § 17-116.01.
informant that Ford was at 2347 Bethel Street in Richmond, and

the bondsman contacted Officer Michael Moore for assistance.

Before going to that address, Officer Moore verified that a

capias was outstanding, but he did not obtain a copy of the

capias. He believed that Ford either had jumped or was about

ready to jump bail. Officer Moore did not determine Ford's

residence address and did not have a description of him. The

bondsman knew and could recognize Ford.
Two additional officers met Moore and the bondsman at 2347

Bethel Street. The additional officers learned that Ford was

supposed to be in the house. They only knew his name and did not

have a description. Officer Moore and the bondsman went to the

front door, and the other two went to the back door. Moore

knocked on the front door, and Officer Samuels, one of the

officers at the back door, heard the knocking.

Three to four seconds after the knocking began, the

defendant opened the back door "rather fast" and stepped out.

Officer Samuels placed his hands on the defendant and asked, "Mr.

Ford?" The defendant replied, "[N]o. I'm Welford Washington."

Samuels frisked him and then asked for identification. The

defendant said that his driver's license was inside and turned to

go back inside. Samuels stepped in front of him and entered the

house first as the second officer followed. As soon as they

entered the kitchen, the officers saw cocaine and heroin on the

kitchen table. They seized the drugs and arrested Washington.

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Ford was not in the residence.

The defendant contends the officers violated the Fourth

Amendment when they entered his residence without a search

warrant. We hold that the officers could go upon the property in

search of Ford, that they had reasonable belief the person

exiting the house was Ford, and that they could accompany that

person back into the house while they completed identifying him.

The officers did not violate the defendant's rights.
The police possessed a capias for Reginald Ford's arrest.

The capias was issued on probable cause, and it required all

police officers to arrest Ford if they found him. The bondsman

had pledged to produce Ford according to the terms of the bond.

The police officers possessed judicially mandated authority to

seize Ford while the bondsman had statutory authority to seize

and return him to the court. In exercising their authority,

either could lawfully approach any citizen and ask if he were

Ford or if he had information that would help them find Ford.

The officers did not implicate the Fourth Amendment when

they went to 2347 Bethel Street to find Ford. Not every

encounter that the police have with a member of the public is a

seizure. "[L]aw enforcement officers do not violate the Fourth

Amendment by merely approaching an individual on the street or in

another public place, by asking him if he is willing to answer

some questions . . . ." Florida v. Royer, 460 U.S. 491, 497

(1983) (citation omitted). "[O]ur recent decision in Royer . . .

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plainly implies that interrogation relating to one's identity or

a request for identification by the police does not, by itself,

constitute a Fourth Amendment seizure." I.N.S. v. Delgado, 466

U.S. 210, 216 (1984).

Police officers implicate the Fourth Amendment when they

seize a person or search a person's home or effects. A seizure

occurs when by physical force or show of authority and submission

thereto, an individual's freedom of movement is restrained and

the person is not free to leave. See California v. Hodari D.,

499 U.S. 621, 626 (1991).

The critical moment occurred when the defendant stepped out

the back door and the police confronted him. The officer seized

Washington when he placed his hands on the defendant. At that

instant, if the officers had reason to believe that the person

was Ford, they had the right to detain that person briefly and to

identify him. See Terry v. Ohio, 392 U.S. 1, 21-22 (1968). Cf.

White v. Commonwealth, 25 Va. App. 662, 666-67, 492 S.E.2d 451,

453 (1997) (en banc). The issue is whether Officer Samuels had a

reasonable suspicion that Reginald Ford was coming out the back

door.

We need not address whether the officers believed that

criminal activity was occurring. The police were not

investigating a crime. The judge who issued the capias

determined that the person named in the warrant was engaging in

criminal conduct. The officers were executing lawful process, an

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arrest warrant. Their investigation was to find Ford. When they

gathered enough information to develop a reasonable, good-faith

belief that they had found Ford, they could seize that person.

Since the warrant gave the officers probable cause to arrest, the

only issue is whether the officers had a reasonable and

good-faith belief that the defendant was Ford. See Shears v.

Commonwealth, 23 Va. App. 394, 399, 477 S.E.2d 309, 311 (1996)

(citing United States v. McEachern, 675 F.2d 618, 621 (4th Cir.

1982)).
The informant's tip was unsubstantiated information about

Ford's location. "An informant's tip can provide the

justification for a Terry stop even if the informant's

reliability is unknown and certainly can do so if, as here, the

information is corroborated." United States v. Porter, 738 F.2d

622, 625 (4th Cir.), cert. denied, 469 U.S. 983 (1984). In this

case, the officers raised their level of knowledge to reasonable

suspicion by corroborating the tip.

To give the tip some indicia of reliability, the officers

needed only to verify that the person detained was reasonably

believed to be the person whom they were to arrest pursuant to

the capias. Anonymous information sufficiently corroborated may

give reasonable suspicion for an investigative stop although the

unverified tip by itself would not justify a forcible stop. See

Alabama v. White, 496 U.S. 325, 331 (1990).

Partial corroboration has always been available to bolster

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the reliability of a tip and increase the accumulated knowledge

to the level of reasonable suspicion. If partial corroboration

can raise an unreliable tip to the point that it provides

probable cause, see Draper v. United States, 358 U.S. 307, 313

(1959); Illinois v. Gates, 462 U.S. 213, 246 (1983); Alabama v.

White, 496 U.S. at 331, it can raise such a tip to the point it

provides reasonable suspicion.
Reasonable suspicion is a less demanding
standard than probable cause not only in the
sense that reasonable suspicion can be
established with information that is
different in quantity or content than that
required to establish probable cause, but
also in the sense that reasonable suspicion
can arise from information that is less
reliable than that required to show probable
cause.
Alabama v. White, 496 U.S. at 330.

Corroboration of the informant's tip could have been

accomplished many ways. In this case, Moore verified that there

was a capias for Ford, and he took the bondsman who could

identify Ford on sight with him. They went to the house to see

if Ford was there. The fugitive warrant gave the officer reason

to suspect that the person might flee. As soon as they knocked

on the front door, someone exited the back door rather fast. A

reasonable person could believe that these were the acts of a

person trying to flee the police. The police were looking for

just such a person at this address. The defendant's reaction to

the police knocking at the door provided articulable facts that

corroborated the tip and raised Officer Samuels' accumulated

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knowledge to the level of reasonable suspicion.

A single instance of attempted flight or furtive behavior by

a suspect is suggestive of guilt and provides a significant

reason to believe that the informant was correct and that

Reginald Ford was at the specified address. See Gregory v.

Commonwealth, 22 Va. App. 100, 109, 468 S.E.2d 117, 121 (1996)

("defendant's . . . behavior tended to support informer's

report"). "[D]eliberately furtive actions and flight at the

approach of strangers or law officers are strong indicia of mens
rea, and when coupled with specific knowledge on the part of the

officer relating the suspect to the evidence of crime, they are

proper factors to be considered in the decision to make an

arrest." Sibron v. New York, 392 U.S. 40, 66-67 (1968).

If articulable facts support a reasonable suspicion that a

person has committed a criminal offense, the police may stop that

person to identify him, to question him briefly, or to detain him

briefly while attempting to obtain additional information. See
Hayes v. Florida, 470 U.S. 811, 816 (1985). "A brief stop of a

suspicious individual, in order to determine his identity or to

maintain the status quo momentarily while obtaining more

information, may be most reasonable in light of the facts known

to the officer at the time." Adams v. Williams, 407 U.S. 143,

146 (1972) (citations omitted).

Officer Samuels had reasonable suspicion that Ford was the

person coming out the back door. He had the authority to detain

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briefly the person whom he suspected was Ford and to confirm his

identity. Although Washington gave his name, the officer was

entitled to verify this statement. See Terry, 392 U.S. at 21-22;

Jones v. Commonwealth, 230 Va. 14, 19, 334 S.E.2d 536, 540 (1985)

(questions about identity did not end when officer was handed

identification card that appeared to have been tampered with).

The next question is whether Samuels could accompany

Washington inside the dwelling without a search warrant.

"[W]arrantless entries into dwellings, followed by . . . 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)

(citations omitted), cert. denied, 479 U.S. 813 (1986). See

Payton v. New York, 445 U.S. 573, 589-90 (1980).

One of the situations that has been held sufficient to

justify a warrantless intrusion upon a citizen's personal privacy

is that "[o]nce an officer has lawfully stopped a suspect, he is

'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.'" Servis v.

Commonwealth, 6 Va. App. 507, 519, 371 S.E.2d 156, 162 (1988)

(alteration in original) (quoting United States v. Hensley, 469

U.S. 221, 235 (1985)). As we noted in Servis, relying upon
Michigan v. Long, 463 U.S. 1032 (1983), frisking for weapons

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based upon the exigency of protecting an officer's safety is not

limited to a pat-down of the suspect but may extend to nearby

vehicles, as in Long, or rooms or premises to which the suspect

may retreat to secure a weapon, as in Servis. See 6 Va. App. at

520, 371 S.E.2d at 162-63.

Once the officer had reason to stop and identify the

defendant, he could stay with the defendant to keep him in sight.

See id. at 519, 371 S.E.2d at 162. This protects the police, an

important consideration during any investigatory detention. It

also maintains the status quo.
Officer Samuels knew that Ford was a fugitive wanted for a

crime. He detained the person he reasonably suspected was trying

to evade the officers at the front door. The officer could not

reasonably be expected to allow that person to re-enter the

premises alone. Although Samuels could not have entered the

premises to search for weapons or contraband, he could accompany

the suspect inside solely to maintain the status quo and ensure

the officers' safety. See id.

Samuels reasonably suspected that Washington was Ford, a

person for whom he possessed a capias as a fugitive. Thus, not

only could Samuels enter the premises to maintain a safe

situation while identifying the person, Samuels could enter the

premises to prevent the suspected fugitive from escaping. Cf.

United States v. Santana, 427 U.S. 38, 42 (1976) (officer had

right based on exigencies of situation to pursue individual into

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private premises without a search warrant where officer had set

in motion an arrest outside). The subject of an arrest warrant

can be seized before entering or after leaving the home of a

third party. See Steagald v. United States, 451 U.S. 204, 221

(1981). The threshold of one's home may be private under the

common law of property, but it is a "public place" when

interpreting the Fourth Amendment. See Santana, 427 U.S. at 42.

That Samuels could have taken the defendant around to the

front door or had the bondsman come to the back door to identify

defendant does not detract from the propriety of what he did.

"The reasonableness of the officer's decision to stop a suspect

does not turn on the availability of less intrusive investigatory

techniques." United States v. Sokolow, 490 U.S. 1, 11 (1989).

"[D]efining what means are 'least intrusive' is a virtually

unmanageable and unbounded task." United States v. Sharpe, 470

U.S. 675, 694 (1985) (Marshall, J., concurring). When

"evaluating whether an investigative detention is unreasonable,

common sense and ordinary human experience must govern over rigid

criteria." Id. at 685. The test is whether the police methods

were calculated to confirm or dispel the suspicion quickly and

with minimal intrusion upon the person detained. See Thomas v.

Commonwealth, 16 Va. App. 851, 856-57, 434 S.E.2d 319, 323

(1993).

Officer Samuels possessed reasonable suspicion to detain the

person he reasonably thought was Ford while verifying his

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identity. Samuels had the right to accompany Washington into the

home to prevent him from fleeing and to ensure the officers'

safety. The contraband was not the fruit of an illegal entry or

illegal search because the officers immediately observed it in

the kitchen in open view. We affirm the trial court's decision.

Affirmed.

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Benton, J., dissenting.

The Fourth Amendment protects "[t]he right of the people to

be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures." U.S. Const. amend. IV.

Contrary to the majority's ruling, I believe the officers' entry

into Welford Washington's residence violated Washington's Fourth

Amendment rights. For this reason, I would reverse the trial

judge's refusal to suppress the seized evidence.
I.

A bondsman informed Officer Michael Moore that he had

received a tip from an informant that Reginald Ford, for whom a

capias had been issued, could be found at 2347 Bethel Street.

Although Officer Moore verified that a capias was outstanding, he

did not obtain a copy of the capias. Additionally, Moore never

independently confirmed Ford's address and did not obtain a

physical description of him. Only the bondsman could identify

Ford. Based upon the limited information he had received, Moore

believed Ford "had either jumped or was about ready to jump

[bail]."

At 10:30 a.m., Officer Samuels and Sergeant Kemp met Moore

and the bondsman at 2347 Bethel Street, which was Welford

Washington's residence. Samuels testified that he was told that

Ford "was supposed" to be in the residence. He knew only Ford's

name, and he did not have a physical description of Ford.

Samuels knew only that a capias had been issued, "that it was a

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bondsman's bail piece [and that] the bondsman was there to pick

[Ford] up." Although he did not know whether Ford had originally

been charged with a felony or a misdemeanor and he had not been

told that Ford was dangerous, Samuels testified that he "take[s]

everybody to be dangerous."

Samuels and Kemp went to the back door of Washington's

residence. With the bondsman accompanying him, Moore went to the

front door and knocked on the door. Moore did not see anyone

look out of a window and did not hear any activity in the

residence.
Samuels testified that he heard Moore knock on the front

door. Three to four seconds after Moore knocked, Washington

opened the back door and stepped out. Samuels testified that

Washington opened the door "rather fast." Samuels placed his

hands on Washington and said, "Mr. Ford." Washington replied,

"[N]o. I'm Welford Washington." Samuels then frisked Washington

and asked Washington for identification. Washington said his

driver's license was inside the residence and turned to go

inside. Samuels went into the house in front of Washington.

Sergeant Kemp followed. When Samuels entered the kitchen, he saw

"syringes with cocaine and heroin" residue and baggies of white

powder. He arrested Washington. Ford was not in the residence.

The trial judge ruled that Samuels' detention of Washington

and "limited intrusion" into Washington's residence were lawful.

II.

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 On appeal, we review de novo the trial judge's determination

that reasonable suspicion existed to detain Washington. See

Johnson v. Commonwealth, 26 Va. App. 674, 682, 496 S.E.2d 143,

147 (1998). To justify a Terry detention, a "police officer must

be able to point to specific and articulable facts which, taken

together with rational inferences from those facts, reasonably

warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21 (1968).

When a detention is based on an informant's tip, "[t]he informant

must provide some basis for his knowledge [of the facts he

reported] before the police officer relies upon it as being

reliable enough to support an investigatory stop." Beckner v.

Commonwealth, 15 Va. App. 533, 537, 425 S.E.2d 530, 533 (1993).

In addition, "[s]ignificant aspects of the informer's information

must be independently corroborated . . . to give 'some degree of

reliability to the . . . allegation' of the informant." Bulatko

v. Commonwealth, 16 Va. App. 135, 137, 428 S.E.2d 306, 307 (1993)

(quoting Alabama v. White, 496 U.S. 325, 332 (1990)).

Clearly, the officers lacked a reasonable suspicion that

Ford was at 2347 Bethel Street, that Washington was Ford, or that

Washington was engaging in criminal activity. The evidence

proved that Washington resided at 2347 Bethel Street. No

evidence established the basis of the unknown informant's

asserted knowledge that Ford could be found at Washington's

residence. The bondsman could not create legal justification to

stop Washington merely by communicating to the police the

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bondsman's informant's unsubstantiated tip that Ford might be in

the residence. See United States v. Hensley, 469 U.S. 221, 232

(1985) (ruling that if a communication "has been issued in the

absence of a reasonable suspicion, then a stop in the objective

reliance upon it violates the Fourth Amendment"); United States

v. Robinson, 536 F.2d 1298, 1300 (9th Cir. 1976) (holding that if

a police officer does not have a reasonable basis to conduct an

investigative stop "he could not create justification simply by

relaying a direction to a fellow officer to make the stop").
Furthermore, no evidence established that either the

informant or the bondsman was a reliable informant. The United

States Supreme Court has held that the police may rely on

information from an anonymous tipster to briefly detain a suspect

only if the information from the anonymous tipster is

"sufficiently corroborated" to provide an indicia of reliability.

White, 496 U.S. at 331. In White, which the Supreme Court

itself described as "a close case," id. at 332, the Court found

indicia of reliability because of the following:
[T]he independent corroboration by the police
of significant aspects of the informer's
predictions imparted some degree of
reliability to the other allegations made by
the caller.

[It is] also important that, as in
[Illinois v. Gates, 462 U.S. 213 (1983)],
"the anonymous [tip] contained a range of
details relating not just to easily obtained
facts and conditions existing at the time of
the tip, but to future actions of third
parties ordinarily not easily predicted."
Id., at 245.

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Id. at 332.

Clearly, the lesson to be gleaned from White, Gates, and

Draper v. United States, 358 U.S. 307 (1959), is that a tip from

an anonymous source does not gain indicia of reliability merely

because the police decide to act upon the tip. The Supreme Court

has never lowered the bar to the level that the majority now

deems acceptable. In this case, the officers corroborated no

information supplied by the bondsman's unknown, anonymous

informant. The record contains no evidence, apart from the

unsubstantiated and uncorroborated informant's tip, that Ford

might have been in or near the residence. The officers acted

upon the tip and by so acting set in motion circumstances that

they deemed suspicious. When the officers knocked on the door, a

man emerged from the residence. The emergence of an unknown male

from the residence does not, to my mind, constitute

corroboration, especially when the officers possessed no ability

to recognize Ford and the man who emerged immediately identified

himself.
None of the officers attempted to determine Ford's address
1
or determine who resided at 2347 Bethel Street. Because neither
1
In fact, the failure of the officers to take reasonable
steps to corroborate the information supplied by the bondsman
demonstrates the fallacy of the majority's position. Had the
officers first determined who resided at 2347 Bethel Street,
obtained a description of Ford, determined the purpose for which
the capias had been issued - all perfectly reasonable steps to
take - the incident may never have occurred. Rather than condemn
the officers' failure to investigate before acting, the majority
rewards their conduct and, by so doing, denigrates the
protections afforded by the Fourth Amendment.

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the informant's reliability nor the basis for the informant's

knowledge was established, the officers lacked a reasonable

suspicion to believe that Ford was in the residence at 2347

Bethel Street. See McGhee v. Commonwealth, 25 Va. App. 193, 203,

487 S.E.2d 259, 264 (1997) (en banc). See also State v. Rubert,

612 P.2d 771 (Or. App. 1980).

The uncontroverted testimony established that none of the

officers had a physical description of Ford. Lacking a physical

description of Ford, Samuels lacked a reasonable suspicion to

believe that Washington was Ford. He simply speculated that

Washington might be Ford. The uncorroborated, unsubstantiated

informant's tip was not enough, alone, to provide Samuels with

reasonable suspicion to believe that Ford was in the residence or

that any man in the residence might be Ford. Furthermore,

Washington promptly identified himself to Samuels by stating that

his name was Welford Washington.
The fact that Washington opened the rear door of the

residence after Moore knocked on the front door is insufficient

to justify a detention of Washington. No evidence proved that

Moore announced his presence or that Washington knew a police

officer was at the front door. No evidence proved where

Washington was located in his house when Moore knocked.

Washington testified that he opened the rear door because he

believed the knock was at that door. Indeed, the reasonableness

of his response in opening the rear door is buttressed by the

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fact that two police officers were at that door.

Washington's appearance at the rear door could give rise "to

no more than an 'inchoate and unparticularized suspicion or

"hunch"'" concerning his intentions. Deer v. Commonwealth, 17

Va. App. 730, 736, 441 S.E.2d 33, 37 (1994) (quoting Terry, 392

U.S. at 27). The officer's knock at a door caused Washington to

respond. Washington opened a door; he did not leave through a

window. Any conclusion that he opened the door to escape is pure

speculation. Furthermore, even if Samuels suspected that

Washington intended to flee, "flight alone may not supply

sufficient reason to suspect a person of criminal activity."
Buck v. Commonwealth, 20 Va. App. 298, 303, 456 S.E.2d 534, 536

(1995). In the absence of any particular information, Samuels

lacked a reasonable, articulable suspicion that Washington, when

he opened the door, was fleeing, was involved in a criminal

offense, or was armed and dangerous.

The majority asserts that the officers acted in good faith.

I respectfully disagree. The officers had no basis, reasonable
or otherwise, to conclude that the person who opened the door at

Washington's residence was Ford. They had never seen Ford and

had no description of Ford. They had no reliable information

that Ford was in the residence. The officers cannot bootstrap

reasonable suspicion from good faith reliance on a tip totally

devoid of any indicia of reliability. Certainly, good faith is

not established by ignorance or even innocent disregard of

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well-established Fourth Amendment principles. The officers had

no authority to detain any man they met at the residence on the

chance they might be lucky and find Ford.

"Th[e] demand for specificity in the information upon which

police action is predicated is the central teaching of [the

United States Supreme] Court's Fourth Amendment jurisprudence."

Terry, 392 U.S. at 21 n.18. Based upon the scant, unverified

information provided by the informant, I would hold that Samuels

lacked a reasonable suspicion to believe that Ford could be found

at 2347 Bethel Street, that Washington was Ford, or that

Washington was involved in a criminal offense. Accordingly, the

detention and frisk of Washington was unlawful.
III.

Citing Barnes v. Commonwealth, 234 Va. 130, 360 S.E.2d 196

(1987), the Commonwealth initially argued at the three-judge

panel hearing that the officers had a "limited authority to enter

[Washington's residence] pursuant to the capias." I disagree.

Even if the police had been armed with an arrest warrant for Ford

and had a reasonable basis to believe he was in the residence,

they still would have needed a search warrant to lawfully enter

Washington's residence to arrest Ford. "[T]he entry into a home

[of a person not named in an arrest warrant] to . . . make an

arrest is unreasonable under the Fourth Amendment unless done

pursuant to a [search] warrant." Steagald v. United States, 451

U.S. 204, 211 (1981).
The Fourth Amendment protects the

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 individual's privacy in a variety of
settings. In none is the zone of privacy
more clearly defined than when bounded by the
unambiguous physical dimensions of an
individual's home -- a zone that finds its
roots in clear and specific constitutional
terms: "The right of the people to be secure
in their . . . houses . . . shall not be
violated." That language unequivocally
establishes the proposition that "[a]t 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." In
terms that apply equally to seizures of
property and to seizures of persons, the
Fourth Amendment has drawn a firm line at the
entrance to the house. Absent exigent
circumstances, that threshold may not
reasonably be crossed without a warrant.

Payton v. New York, 445 U.S. 573, 589-90 (1980) (citation

omitted). Thus, "to the extent that [an arrest warrant] is

invoked as authority to enter the homes of third parties," that

entry is violative of the Fourth Amendment rights of those third

parties. Steagald, 451 U.S. at 220.

At the en banc hearing, the Commonwealth abandoned that

argument and contended that Samuels' entry into the residence was

justified because of "the potential for danger." No evidence

supports that argument. In fact, the officers had no information

that Washington's residence was Ford's home. When the officers

went to Washington's residence, none of them knew whether Ford

had originally been charged with a felony or a misdemeanor. They

only knew that a capias had been issued for Ford's detention.

Indeed, the trial judge found that "Officer Samuels did not know

whether it was a felony warrant or not, and I know there was a

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capias, but I don't know . . . what the capias was for, other

than failure to appear."

Samuels justified his entry on the grounds that he "needed

to know who [Washington] was" and that he considers "everybody to

be dangerous." Thus, by Samuels' own testimony, his detention of

Washington supplied the basis for concluding danger existed and

the justification for the search of and entry into Washington's

residence. Until today, that generalized, subjective judgment

has never been sufficient to justify a warrantless search of or

entry into a private residence.
In upholding the officer's warrantless entry into

Washington's residence, the majority fails to recognize that even

if Samuels had a legitimate need to verify Washington's assertion

that he was not Ford, Samuels was not privileged to enter

Washington's residence. Washington identified himself to

Samuels. The bondsman, who could identify Ford, was on the

scene. In view of these circumstances, the conclusion easily and

necessarily follows that the officers unreasonably entered

Washington's residence. "'Nothing is more clear than that the

Fourth Amendment was meant to prevent wholesale intrusions upon

the personal security of our citizenry, whether these intrusions

be termed "arrests" or "investigatory detentions."'" Dunaway v.

New York, 442 U.S. 200, 214-15 (1979) (citation omitted). "[T]he

Fourth Amendment's command that searches be 'reasonable' requires

that when the State seeks to intrude upon an area in which our

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society recognizes a significantly heightened privacy interest, a

more substantial justification is required to make the search

'reasonable.'" Winston v. Lee, 470 U.S. 753, 767 (1985). "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 v.

Wisconsin, 466 U.S. 740, 748 (1984) (citation omitted). Because

of the sanctity of the home, "neither reasonable suspicion nor

probable cause would suffice to permit the officers to make a

warrantless entry into a person's house for the purpose of

obtaining fingerprint identification." Hayes v. Florida, 470 U.S

811, 817 (1985). That the identification the officers sought was

of another form does nothing to legitimize their entry.

The other basis that the majority relies upon to justify the

entry, the officer's safety, is also unconvincing. Samuels

lacked a reasonable basis to conclude that Washington was

dangerous. Nothing about Washington or his conduct indicated

that he posed a danger to the officers. Samuels' generalized

belief that everyone is dangerous did not allow him to enter

Washington's residence at his whim. "[A]n officer may not

justify a protective search by using legitimate safety concerns

to bootstrap his or her lack of sufficient suspicion of criminal

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activity." Reittinger v. Commonwealth, 28 Va. App. 80, 92, 502

S.E.2d 151, 157 (1998). Furthermore, it is clear that "any

exigency arising from [Washington's] retreat was created solely

by the police action in knocking on [Washington's] door." State

v. Morse, 480 A.2d 183, 186 (N.H. 1984). "Where agents create

the exigency themselves, warrantless activity is per se

unreasonable and we require suppression of any evidence obtained

thereby." United States v. Webster, 750 F.2d 307, 328 (5th Cir.

1984). See also United States v. Roselli, 506 F.2d 627 (7th Cir.

1974) (agents knocking at apartment door and identifying

themselves as police officers unnecessarily created emergency

situation).

Because Samuels was not justified in stopping Washington in

the first instance, his entry into Washington's house and search

of the kitchen cannot be justified by fear that arose during the

stop. Although this Court ruled in Servis v. Commonwealth, 6 Va.

App. 507, 519, 371 S.E.2d 156, 162 (1988), that "[o]nce an

officer has lawfully stopped a suspect, he is 'authorized to take

such steps as [are] reasonably necessary to protect [his and

others'] personal safety," that rule cannot be used to justify

the officer's entry into the residence of a person who is not

wanted for a criminal offense solely because a police officer

suspects that the person may be someone else.
The state attempts to bootstrap the police
officers' entry into Defendant's [home] by
merging two independent doctrines i.e., the
stop and frisk doctrine with the emergency
doctrine, in order to fill the gaps of one

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 doctrine with the arguably permissible scope
of another. Thus, their "emergency" or
exigent circumstance, is, in their words, the
need to "neutralize" the area for their own
protection while carrying on the questioning.
We decline the invitation to stretch either
of these doctrines in order to justify the
police officers' actions based on the facts
presented here. Such a modification or
blending of the two doctrines would create an
exception to the warrant requirement which
would effectively swallow the rule.

The very purpose of our constitutional
provision was to protect a person's home from
governmental intrusions. This right against
intrusion should be stringently protected by
the courts. As such, any exceptions to the
warrant requirement should be narrowly and
carefully drawn. The state's proposed rule
that police officers, having authority to
encounter a defendant and make reasonable
inquiry, are thereby entitled to enter a
defendant's premises in order to serve the
needs of their safety, would be contrary to
this principle of carefully drawn exceptions.
We are mindful of the dangers inherent in the
work of police officers. The potential for
violence exists in all confrontations between
police and private citizens. But a remote
possibility of harm to the police officers
cannot justify a warrantless entry into the
private recesses of one's house.

State v. Davis, 666 P.2d 802, 812 (Or. 1983) (citations omitted).

For these reasons, I would reverse the trial judge's refusal

to suppress the evidence. The illegal entry and search of

Washington's house was a product of the illegal detention and

resulted in the unlawful acquisition of evidence. That evidence

should have been suppressed. See Walls v. Commonwealth, 2 Va.

App. 639, 651, 347 S.E.2d 175, 182 (1986).

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