Opinion
Record No. 0222-94-4 Record No. 0225-94-4
August 9, 1994
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY ROBERT W. WOOLDRIDGE, JUDGE
Kathleen B. Martin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on briefs), for appellant.
Robert F. Horan, III (Horan Schmidt, on brief), for appellee Elizabeth Norman.
Crystal A. Meleen (Frank W. Romano; Office of the Public Defender, on brief), for appellee Edward Norman.
Present: Chief Judge Moon, Judge Fitzpatrick and Senior Judge Duff
Argued at Alexandria, Virginia
Pursuant to Code § 17-116.010, this opinion is not designated for publication.
The appellees, Elizabeth and Edward Norman, were indicted for possession of marijuana with intent to distribute. They filed motions to suppress the evidence recovered from their home because the police failed to knock and announce properly before entering their home. The trial court granted the motions to suppress, and the Commonwealth appeals those rulings pursuant to Code § 19.2-398(2). The Commonwealth contends that the trial court erred in its application of the knock and announce rule to the facts of these cases and in finding that the police were required to give Mr. Norman an opportunity to respond to the officers' announcement. We agree with the Commonwealth and reverse the trial court's rulings.
On July 7, 1993, at 11:30 p.m., police officers executed a search warrant at appellees' residence. The police entry team wore black outfits, including ballistic vests displaying the word "POLICE" in three-inch bold white letters on the front and back. While the police were on the steps leading to the landing where the front door was located, Mr. Norman opened the door and stood in the doorway. Sergeants Klugh and Kenyon were ascending the stairs when the door was opened. As the door remained opened, Klugh and Kenyon, who were approximately two or three steps from Mr. Norman, approached him and separately announced, "Police, Search Warrant." Mr. Norman was then pushed out of the doorway so that the rest of the search team could get through the open doorway.
In its opinion letter of January 21, 1994, granting appellees' motions to suppress, the trial court stated:
The facts of this case do not fall squarely within the "knock and announce" doctrine. There was no "knock." Indeed, there proved to be no need for one. The officers did identify themselves as police officers and indicated the reason for their presence. It was not a question of "waiting a reasonable period of time for the occupants to answer the door," as the door was opened by Mr. Norman just as they approached it.
We agree with the trial court's evaluation and find it to be a correct statement of the law in light of the facts of these cases. It is the trial court's next statement with which we disagree:
[T]he police moved Mr. Norman out of the doorway before announcing their identity and purpose in such a manner as would reasonably inform him of their identity and purpose and allow him to respond. . . . The totality of circumstances surrounding the actual entry were not such as to inform Mr. Norman that there was a legal basis and official purpose for the entry, as opposed to one he should counter with force.
Because the door was open before the police announced their identity and presence, and it remained opened while they approached, the four-prong knock and announce analysis is inapplicable. Cf. Heaton v. Commonwealth, 215 Va. 137, 138, 207 S.E.2d 829, 830 (1974) (explaining proper procedure to follow before resorting to forced entry); Gladden v. Commonwealth, 11 Va. App. 595, 598, 400 S.E.2d 791, 793 (1991) (listing four things police must do before forced entry).
Where, as here, the door was already open, there was no forced entry. Therefore, we judge the validity of the search "in terms of its reasonableness 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). See also Wynne v. Commonwealth, 15 Va. App. 763, 765, 427 S.E.2d 228, 230 (1993) ("The constitutional proscriptions against unreasonable searches and seizures require not only that there be probable cause to undertake the search or make the seizure, but also that the search be conducted in a reasonable manner."). But see Johnson v. Commonwealth, 213 Va. 102, 104, 189 S.E.2d 678, 679 (1972) (explaining rationale for knock and announce rule in knock and announce situations), cert. denied, 409 U.S. 1116 (1973).
The trial judge found that the officers did not announce their identity and purpose in such a manner as would properly inform Mr. Norman thereof. However, the record shows that the announcement was made as the officers approached Mr. Norman at the open door and before he was pushed aside to let the search team inside. Because the officers were a few steps from Mr. Norman, several seconds necessarily passed before they got to him. Mrs. Norman had left the house through the front door a few minutes before Mr. Norman reopened the door and stood in the open doorway. The only evidence concerning whether the officers could be seen, despite the lighting conditions, came from Klugh, who stated that he was able to see the word "POLICE" on the officers' vests and that he had no difficulty seeing Mr. Norman on the landing or Mrs. Norman, who was apprehended outside. Because this evidence was uncontradicted, the trial court erred in refusing to accept the fact that the officers were identifiable. See Molash v. Commonwealth, 3 Va. App. 243, 247, 348 S.E.2d 868, 870 (1986).
Accordingly, we find that the trial judge's decisions were plainly wrong. Based on the evidence before the court, the entry into the Norman home was announced and reasonable under the circumstances. Moreover, we are aware of no Virginia case law requiring the police to allow a defendant an opportunity to respond or deny access after the police sufficiently announce their identity and purpose at an open door. These cases are more like the situation where someone opens a door in response to a ruse by a police officer with a valid warrant; in such a situation, once the door is open, the officer need only announce his identity and purpose in order to effect a reasonable search. See Meyers v. Commonwealth, 12 Va. App. 398, 402, 404 S.E.2d 83, 86 (1991) (upholding validity of search where, after door opened, agent announced that she was a police officer with a search warrant; several seconds passed before team of uniformed officers hidden outside was ushered by agent into house through open door).
Therefore, we reverse the trial court's orders granting the motions to suppress.
Reversed.