COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
ISAAC ONEAL HARGRAVE
v. Record No. 1038-94-2 OPINION BY
JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA DECEMBER 5, 1995
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D'Alton, Jr., Judge
Mary Katherine Martin, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
In this appeal, we find that the failure of the police
officers executing a search warrant to wait more than two or
three seconds after knocking and announcing their presence before
making a forced entry was unreasonable under the circumstances.
We hold, therefore, that the entry violated the appellant's
constitutional protections against unreasonable searches and
seizures guaranteed by the Fourth Amendment of the United States
Constitution and Article I, § 10 of the Virginia Constitution.
Isaac O. Hargrave appeals his bench trial conviction for
possession of cocaine with intent to distribute. Hargrave
entered a conditional plea of guilty and appealed the trial
court's denial of his motion to suppress evidence seized from his
residence pursuant to a valid search warrant. For the following
reasons, we reverse Hargrave's conviction.
Police officers "may not forcibly break into dwellings as a
matter of course to execute a [search] warrant." Commonwealth v.
Viar, 15 Va. App. 490, 493-94, 425 S.E.2d 86, 88 (1992). The
method of entry must be reasonable "within the meaning of the
fourth amendment to the United States Constitution and Article I,
§ 10 of the Constitution of Virginia." Grover v. Commonwealth,
11 Va. App. 143, 145, 396 S.E.2d 863, 864 (1990). Although the
requirement that police officers executing a search warrant
"knock and announce" gives notice to the suspects of the
officers' presence and the suspects' possible impending
apprehension, it also discourages violence and volatile
confrontations and encourages orderly executions of search
warrants. In Johnson v. Commonwealth, 213 Va. 102, 104, 189
S.E.2d 678, 679 (1972), cert. denied, 409 U.S. 1116 (1973), the
Supreme Court stated that
[t]he reasons for the requirement of notice
of purpose and authority have been said to be
that the law abhors unnecessary breaking or
destruction of any house, because the dweller
in the house would not know the purpose of
the person breaking in, unless he were
notified, and would have a right to resist
seeming aggression on his private property.
Therefore, absent exigent circumstances, police officers must
knock, identify themselves, state their purpose, and wait a
reasonable time for the occupants to respond before making a
forced entry. Gladden v. Commonwealth, 11 Va. App. 595, 598, 400
S.E.2d 791, 793 (1991).
In the present case, several members of the Petersburg
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Police Department executed a search warrant at 541 Hannon Street
in Petersburg at approximately 5:00 p.m. on March 24, 1993. The
warrant was based on information obtained from a confidential and
reliable informant that illegal drug activity was occurring at
the residence. When the police arrived at the residence,
Detective Emanuel Chambliss approached the front door followed in
single file by Detective David Hamilton and Officer Howard Young.
The storm door was shut, but the inside front door was open.
Detective Chambliss stated that he "could see straight down the
hallway into the kitchen area."
According to Chambliss, he knocked on the storm door and
announced, "Police, search warrant," and after waiting "two or
three seconds" and not hearing or seeing anyone, he entered the
front door. After entering the residence, Chambliss again
announced his presence, at which time he encountered Hargrave in
the hallway near the kitchen. After observing drugs on the
kitchen counter, the officers arrested Hargrave, and upon
searching him, the officers seized four bags of crack cocaine
from Hargrave's pants pocket.
Hargrave contends that by waiting only two or three seconds
after knocking before entering, the police did not comply with
the requirement that, after announcing their presence, officers
must wait a reasonable time for the occupants to respond before
forcibly entering the residence. See Wynne v. Commonwealth, 15
Va. App. 763, 427 S.E.2d 228 (1993). He argues that because the
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officers, without having observed exigent circumstances, waited
only two or three seconds after knocking and announcing before
entering, the forcible entry was unreasonable.
Although the "knock and announce" entry which the police
used here, "police, search warrant," presumably notified the
occupants of the identity and purpose of the intruders, when the
officers thereafter immediately forced their way into the privacy
of the citizen's home without any exigent circumstance, the entry
was unreasonable. For police officers to wait only two or three
seconds after announcing their presence before forcibly entering
a citizen's home is equivalent to entering simultaneously with
knocking and announcing because such an entry affords the
occupant no reasonable opportunity to respond before his home is
forcibly entered. Moreover, where as here, the officers could
see into the house and down the hallway through the glass storm
door, they would be able to observe whether the occupants were
reasonably responding to their notice. We find the facts in the
present case similar to and controlled by our holding in Wynne,
15 Va. App. 763, 427 S.E.2d 228.
In Wynne, several police officers went to a residence in
Henrico County to execute a warrant to search for drugs. Upon
arriving at the residence, they found the glass storm door closed
and the inside front door open. Id. at 764, 427 S.E.2d at 229.
Through the storm door, the officers saw Wynne in the living room
trimming a Christmas tree. They also saw a man seated at the
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dining room table. Id. The officers knocked and announced that
they had a search warrant. After waiting about five seconds for
a response, they entered the house with their weapons drawn. Id.
at 765, 427 S.E.2d at 229. On appeal, a panel of this Court held
that the officers failed to wait a reasonable time before
entering the house. Id. at 767, 427 S.E.2d at 231. The Court
found "that the five-second delay before forcible entry was
unreasonable in this case because the police could clearly see
the appellant . . . through the glass storm door." Id. The
Court stated that "[t]he police confronted no exigent
circumstances and observed no suspicious activity before or after
knocking on appellant's door." Id.
Similarly, the police confronted no exigent circumstances in
the present case. Although the facts here differ from Wynne in
that the officers in Wynne could observe two of the occupants,
the fact that the officers in the present case could not observe
an occupant or that an occupant did not appear within two or
three seconds did not present an exigent circumstance that
justified the officers entering the home without waiting a
reasonable period of time. The Court in Wynne distinguished the
facts of that case from situations where the police are "unable
to observe the activity of the occupants before or after knocking
and announcing." Id. n.2. We recognize that situations may
exist where police officers must dispense with the requirements
of the "knock and announce" rule "to prevent persons within from
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escaping or destroying evidence." Heaton v. Commonwealth, 215
Va. 137, 138, 207 S.E.2d 829, 830 (1974). The knock and announce
rule "should be evaluated in the light of modern technology and
the nature of illegal drug traffic in which small, easily
disposable quantities of drugs can yield large profits."
Johnson, 213 Va. at 105, 189 S.E.2d at 680.
Both the Supreme Court and this Court have upheld the
constitutionality of unannounced entries when necessary to
prevent the destruction of illegal narcotics. Johnson, 213 Va.
at 105-06, 189 S.E.2d at 680-81; Commonwealth v. Woody, 13 Va.
App. 168, 171, 409 S.E.2d 170, 172 (1991); see also Wilson v.
Arkansas, 115 S. Ct. 1914, 1919 (1995) (holding that while
unannounced entries may be constitutionally defective in certain
situations, "law enforcement interests may also establish the
reasonableness of an unannounced entry"). In these cases, the
courts have attempted to balance the purpose of the "knock and
announce" rule and the needs of law enforcement by requiring that
police have probable cause to believe an unannounced entry is
necessary to prevent the destruction of evidence. Woody, 13 Va.
App. at 170, 409 S.E.2d at 172; see also Keeter v. Commonwealth,
222 Va. 134, 141, 278 S.E.2d 841, 846, cert. denied, 454 U.S.
1053 (1981) (holding that the police officers had probable cause
to make a warrantless entry).
A "no-knock" entry is not warranted, however, "where the
only exigent circumstance is the readily disposable nature of the
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contraband that is the object of the search." Heaton, 215 Va. at
139, 207 S.E.2d at 831. Similarly, where the only exigent
circumstance is that the object of the search is drugs, which by
their nature are readily disposable, officers may not, without
more, dispense with the need to wait a reasonable time for the
occupants to respond before making a forced entry. See Wynne, 15
Va. App. at 767, 427 S.E.2d at 231. However, the lapse of a
reasonable amount of time for occupants to respond after police
officers knock and announce their presence may well be an exigent
circumstance from which the officers can infer that if occupants
are present in the residence, they are not responding for some
reason. Thus, although the disposable nature of drugs is not an
exigent circumstance that alone justifies a forced entry, the
failure of the occupants to respond within a reasonable time
after knocking and announcing will justify the use of that degree
of force necessary to enter and execute a search warrant.
In the present case, no evidence was presented of exigent
circumstances indicating a need for a rapid entry. Officer
Chambliss' ability to see through the glass storm door into the
house and down the hallway gave him a limited opportunity to
observe any exigent activity other than responding to his knock
and announce that might have indicated an attempt to escape or
destroy evidence. He did not observe any suspicious activity.
The fact that Chambliss did not observe any occupants inside the
residence was insufficient without more to warrant entry only two
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to three seconds after knocking and announcing. Waiting only two
or three seconds is tantamount to making a forced entry while
simultaneously announcing one's presence and purpose, and it
affords no reasonable opportunity for the occupants to
accommodate a peaceable entry.
Because the entry was unreasonable, the evidence seized "was
`the fruit of the poisonous tree' and should have been
suppressed." Gladden, 11 Va. App. at 600, 400 S.E.2d at 794. We
therefore reverse Hargrave's conviction and remand for further
proceedings if the Commonwealth be so advised.
Reversed and remanded.
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