Opinion
Record No. 0239-92-2
September 14, 1993
FROM THE CIRCUIT COURT OF CHARLES CITY COUNTY WILLIAM L. PERSON, JR., JUDGE.
Thomas B. Hoover for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Benton and Fitzpatrick.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Melvin R. Rice, Jr. (appellant) was convicted after a bench trial of possession of marijuana, weighing more than one-half ounce but less than five pounds, with intent to distribute. Code § 18.2-248.1(a)(2). On appeal, he argues that the trial court erred by denying his motion to suppress the evidence seized from his home during the execution of a valid search warrant. The appropriate disposition of this appeal turns on whether the police properly complied with "knock and announce" doctrine prior to executing a search warrant at appellant's home. We conclude that the police acted properly and, therefore, we affirm.
BACKGROUND
The parties are familiar with the facts of the case; therefore, we restate only those facts necessary to explain our holding. On January 26, 1991, at about 6:00 p.m., Special Agent Fagan of the Virginia State Police received information from an informant that large quantities of marijuana were located in appellant's home. Fagan testified that the informant also stated that he had seen weapons in the house previously, and that appellant was of a violent nature.
Approximately four hours later, Fagan, Special Agent Petska and Trooper Hall of the Virginia State Police, and four other police officers went to appellant's home to execute a valid search warrant. They were dressed in civilian clothes covered with blue jackets with the words, "State Police" imprinted in one-inch gold letters on the front and larger letters on the back. They also had cloth badges on the chest area of the jackets, as well as baseball caps bearing the words, "State Police." Trooper Hall had a police badge hung around his neck on a chain so that it was clearly visible.
Fagan, Petska, and Hall went to the front door of appellant's home while two other officers stationed themselves at the rear door. The officers knew that a woman was in the home because they had telephoned before obtaining the search warrant and a woman answered the telephone. Fagan testified that they suspected that appellant was also in the house.
Petska knocked on the door and a woman's voice from inside asked who it was. The voice sounded like it was coming from about two to four feet behind the door. Petska identified himself as "George" and asked to speak with "Mel Rice." The woman, Alma Rosenberger, testified that she did not recognize the voice and did not know anyone named George; therefore, she would not open the door. Petska then asked if she would open the door so that he could talk to her. After receiving no response, the officers identified themselves and stated their purpose.
The trial court found:
[The Police] waited at least six seconds and probably more before they entered by knocking down the door.
The Court accepts the testimony, after the [ruse] fell, that the State Police said open up, we are the State Police, we have a search warrant and then waited at least two seconds. . . . Then announced, again, that they were State Police and they had a search warrant, open up.
There was at least another two seconds, . . . the door was not opened and the State Police said open up or we'll knock it down. There was at least another two seconds or more before the door was knocked down because it wasn't opened.
Fagan kicked in the front door, and the officers entered the residence and discovered the occupant, Alma Rosenberger, standing approximately five feet from the door. In plain view on the kitchen table, the officers found slightly less than five pounds of marijuana.
The trial court in denying appellant's motion, concluded:
I think if you take in those factors and the factors that they knew that at least one occupant . . . who they had been talking to was right next to the door and could have opened the door, it seems like to me, when you take everything into consideration, they acted properly in making that entry after making a reasonable notice of why they were there and to please open.
In addition, the trial court held that as an alternative basis for denying the motion to suppress, exigent circumstances existed that would have justified a "no-knock" entry.
METHOD OF ENTRY TO EXECUTE SEARCH WARRANT
When a motion to suppress is reviewed on appeal, we examine the evidence presented at both the suppression hearing and trial in determining whether the contraband was lawfully seized.DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 543 (1987), cert. denied, 488 U.S. 985 (1988). Further, "[t]he burden is upon [appellant] to show that [the denial of the suppression motion], when the evidence is considered most favorably to the Commonwealth, constituted reversible error."Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731,cert. denied, 449 U.S. 1017 (1980).
Appellant initially contended that the police officers' attempt to gain entry into his home by ruse was illegal. At oral argument before us, however, appellant acknowledged that our recent opinion in Commonwealth v. Viar, 15 Va. App. 490, 425 S.E.2d 86 (1992) is dispositive of this argument. InViar, we explained that:
The "knock and announce" doctrine does not apply when law enforcement personnel have gained entry into a dwelling by consent, because no force is used under such circumstances. It is irrelevant that the police gained entry by ruse or stratagem, as long as the consent to enter was not revoked prior to the police identifying themselves.
Id. at 494, 425 S.E.2d at 89. In the case at bar, the ruse failed when the occupant refused to open the door for Agent Petska, who identified himself only as "George." Accordingly, absent exigent circumstances, the police were required to comply with the "knock and announce" doctrine to execute the search warrant. See Grover v. Commonwealth, 11 Va. App. 143, 145, 396 S.E.2d 863, 864 (1990).
"It is well settled in Virginia that police officers armed with a search warrant may not forcibly break into dwellings as a matter of course to execute a warrant. 'Generally, police officers, before resorting to forced entry into premises to be searched under warrant, must attempt to gain admittance peaceably by announcing their presence, identifying themselves as police officers and stating their purpose.'" Viar, 15 Va. App. at 493-94, 425 S.E.2d at 88-89 (quoting Heaton v. Commonwealth, 215 Va. 137, 138, 207 S.E.2d 829, 830 (1974)).
In Gladden v. Commonwealth, 11 Va. App. 595, 400 S.E.2d 791 (1991), we explained the essential elements of the announcement doctrine:
The announcement doctrine . . . requires that the police, prior to forcing entry into a dwelling: (1) knock; (2) identify themselves as police officers; (3) indicate the reason for their presence; and (4) wait a reasonable period of time for the occupants to answer the door.
Id. at 598, 400 S.E.2d at 793 (citations omitted).
In this case, the trial judge resolved any conflict in the testimony in favor of the Commonwealth and found that, after the ruse had failed, the police knocked on the front door and stated: "[O]pen up, we are the State Police, we have a search warrant." The officers waited at least two seconds and again announced that "they were State Police and they had a search warrant, open up." At least another two seconds passed without the occupant opening the door, at which point "the State Police said open up or we'll knock it down. There was at least another two seconds or more before the door was knocked down because it wasn't opened."
In determining the validity of a search, the police officers' conduct is "judged 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, 11 Va. App. at 145, 396 S.E.2d at 864. In this case, the evidence proves that the police at least twice announced their identity and purpose. The officers knew that at least one woman was inside the residence very close to the door, and they suspected that either appellant or another person was also present. Agent Fagan, the officer who initially forced entry into residence, had information that weapons might be in the house as well as other drugs. Further, the officers were told that appellant had a violent character.
Viewing the evidence in the light most favorable to the Commonwealth, we conclude that the police properly complied with the "knock and announce" doctrine. Appellant argues that the police did not give the occupant a reasonable opportunity to answer the door, and that, considering the failed ruse, the police should have done more to prove their identity. We disagree.
The evidence supports the trial court's conclusion that the occupant, who had conversed through the door to Agent Petska, was very close to the door and had the ability to comply with the request to open the door, or at least ask for additional identification. Under these circumstances, the police reasonably concluded that the occupant was not going to comply with their lawful order to open the door. Compare McClure v. United States, 332 F.2d 19, 22 (9th Cir. 1964) (holding that refusal of admittance after announcement "will rarely be affirmative, but will oftentimes be present only by implication"), cert. denied, 380 U.S. 945 (1965) with Wynn v. Commonwealth, ___ Va. App. ___, ___, 427 S.E.2d 228, 231 (1993) (holding that where suspect in plain view through glass door was engaged in innocuous activities across room and other occupant of residence seated at table gave no indication that knock was heard, five second pause from time of knock to forced entry was unreasonable). In addition, appellant provides no authority, nor have we found any controlling authority, for the proposition that a police officer must go further than the well-established requirements of the "knock and announce" rule after the police attempt peaceable entry by ruse and the ruse is unsuccessful.
We conclude that the totality of the officers' actions, including any initial ruse employed, are factors that the trial court must consider in determining whether the search was reasonable. From the record before us, we cannot say that the trial court was clearly wrong in finding the actions of the State police reasonable. Accordingly, we affirm.
Affirmed.
"Generally, police officers, before resorting to forced entry into premises to be searched under warrant, must attempt to gain admittance peaceably by announcing their presence, identifying themselves as police officers and stating their purpose."Heaton v. Commonwealth, 215 Va. 137, 138, 207 S.E.2d 829, 830 (1974). "The announcement doctrine, therefore, requires that the police, prior to forcing entry into a dwelling: (1) knock; (2) identify themselves as police officers; (3) indicate the reason for their presence; and (4) wait a reasonable period of time for the occupants to answer the door." Gladden v. Commonwealth, 11 Va. App. 595, 598, 400 S.E.2d 791, 793 (1991). If an entry is gained in violation of these rules, the seized evidence must be suppressed and excluded at trial. Id. at 600, 400 S.E.2d at 794. The evidence in this case proved that the police broke into a residence before waiting a reasonable period of time for the occupant to ascertain their identity and then answer the door.
The evidence proved that the police learned from an informant that Melvin Rice possessed a large quantity of marijuana in his residence in a rural area. At 8:30 p.m., two officers not in uniform began surveillance of the residence and saw no vehicles enter or leave the premises. No vehicle was on the premises during the surveillance. During the surveillance, an officer telephoned the residence using a ruse and discovered that a female was in the residence.
At 10:00 p.m., eight police officers surrounded the one story ranch style residence. Describing the lighting conditions around the residence, one officer said "it was dark outside, real dark." Two officers went to the rear entrance and three officers went to the front door. Two of the eight officers were in uniform; however, neither of the uniformed officers was at the front door. The officers at the doors all wore jeans and other "civilian" clothing and "raid" jackets. The raid jacket was blue with the words "State Police" written in one inch letters on the right chest area and in larger letters on the back.
The police had decided to use a ruse to get the female in the residence to open the front door. The only disputed evidence concerns the number of seconds that elapsed during the conversation that occurred between Alma Rosenberger, the female in the residence, and Officer Mark Petska, who attempted the ruse. Rosenberger testified that she was alone in the residence when the following events occurred:
A It was around ten o'clock at night. The knock came at the door, and I got up and turned my television set down low. And I asked, who is is it? And they said, George. I then said, George? And he said, yes. Is Mel in? No, he isn't. If you would like to leave your telephone number, I'll have him call you when he does come in.
He then said, no. Open the door. I said, no. I'm not opening the door. He said it another time, please open the door now. And a second later, he said, open up, Police. And as they said that, they kicked the door, and I stepped back; and the second time they kicked, the door came in.
Q What was the time period from when he first said, State Police, open up the door, to when the door was finally kicked in? Give me the time —
A As he was saying, State Police, open up, the kick came in. The first kick.
Q Almost at the same time?
A Yes.
Q Within a second or two?
A A second.
Q All right. And then what happened when the second hit was put to the door?
A It came in and I jumped back.
She testified that after she refused to admit "George" and he then said "State Police" the events occurred so quickly that she did not have time to respond or "time to even look out [the] window" to verify who the person was at the door.
Officer Petska, who attempted the ruse by identifying himself as "George," testified as follows:
A I knocked on the door. A woman answered. I believe I used the name George, I believe. I asked for Mel Rice to begin with. And she asked who this was, and I think I said George. She said he was not there. I said, could you open up the door? I would like to talk to you. She said, basically, no. I don't remember the exact wording behind everything at that time. I then, when I got no response that way, I said, State Police. I have got a search warrant. Open up. And there was no response.
* * * *
Q And where was that voice? Was it on the other side immediately adjacent to the door, or was it back, or could you tell?
A It sounded like it was several feet back of the door. It was not right at the door. It sounded like she was a little ways away from the door.
Q After you told her the State Police and you have a search warrant, open the door, what did she do?
A There was nothing. There was no response, so [I] waited a short period of time. I said, State Police, search warrant, again. There was a slight pause. Special Agent Fagan said, you know, to open the door, otherwise we're going to have to kick it in and —
Q All right. Was there any response after the second statement by you, State Police, open the door, we have got a search warrant?
A From the original statement that I said State Police, search warrant, there was no response from inside the house after that point.
Q All right. And after Agent Fagan said, if you don't open — well, tell us what he said?
A Basically, he said, you know, to open the door, otherwise I'm going to have to kick it in.
Q And what was the response then?
A There was no response.
* * * *
Q And how much of a pause was there, if any, after Agent Fagan said, if you don't open the door, we're going to kick it in?
A A few seconds.
Q Okay. When the door — and who kicked it?
A Fagan, Special Agent Fagan.
Q Do you remember how many kicks it required?
A One or two. I don't recall. I don't think it was much more than that.
Petska later testified that two or three seconds passed between the times he said "State Police."
Officer Hall, who was also at the front door described the events as follows:
Q Would you briefly tell His Honor, describe the sequence that occurred as you were standing in front of the house when the search warrant was executed?
A The three of us were standing on the porch. Special Agent Fagan was off to the left side of the door; and Mark Petska, Special Agent Petska, was next to me. I was on the right side, standing between the doorframe and the window. There was a window on the porch. I was standing there and —
Q You were dressed in what fashion?
A I had blue jeans on. I had a State Police raid jacket with a cloth badge that says State Police. I had a State Police ball cap that has State Police in gold letters on the blue hat, and I had my badge on a neck chain hanging down that's visible outside.
* * * *
A And then, see, there was a knock on the door. There's a voice on the inside, who is it; and Special Agent Petska gave some name I couldn't remember, and he's there to see Melvin. And the voice said, he's not here. And there was another question. I didn't catch that. I was trying to listen and look around to see what was going on.
Then Agent Petska said, well, can we talk to you, and it was like a, no. I don't think so. Then he said, this is the State Police. We have a search warrant. Open the door. I thought I heard some mumbling, or I don't know — stumble. And again said, this is State Police. We have a search warrant. If you don't open the door, we're going to kick it in. And then there was nothing; and said, we're kicking it in. Then they kicked the door.
Q All right. After the two requests for the door to open and they were advised — the person inside was advised this was the State Police, what was the approximate length of time for each one?
A Okay. There's a knock — well, actually this is the state Police. We have a search warrant. Open the door. There was a pause. Seemed like an eternity. It really did, but I'm sure it was no more than four or five seconds. Again, this is the State Police, search warrant. If you don't open the door, we're going kick the door in. And there was a long pause again, about the same amount of time, four, five, six seconds; and then, we're kicking the door now.
Then Special Agent Fagan, I believe, he was the one who kicked the door. He was standing back at the leading edge of the porch. So after they said we're kicking the door, and then probably another second, second and-a-half, he had to cover that distance to get the momentum up to kick the door. When I came up, I was third in.
Officer Fagan, who kicked in the door, testified as follows:
Q Who did that? Who initially announced that you were State Police Officers?
A Special Agent Petska.
Q And how did he do that? What did he say?
A He said State Police. We have a search warrant.
Q Did he say anything about opening the door?
A Well, he announced it like that. Then there was a lapse of time. And then he said it again, that you need to open up the door. Almost simultaneously, I said, if you don't open up the door, I'm going to kick it in.
This evidence proved that under the circumstances the police neither allowed a reasonable time for Rosenberger to verify their identify nor offered to confirm that they were indeed the police and not some person who might have posed the danger of harm. The conflict in the evidence concerning the number of seconds between the pauses is insignificant. Whether the pauses were two or three seconds, the lapsed time was no more than ten seconds. It is simply unreasonable to suggest that a reasonable person at home alone at night in a rural area had sufficient time in ten seconds or less to recover from the discovery of trickery by someone attempting to gain entry into her residence and then ascertain their identity. The police did not allow her sufficient time to react or to verify whether it was an unknown "George," the "State Police," or some other person before battering in the door of the residence. See Wynne v. Commonwealth, ___ Va. App. ___, 427 S.E.2d 228 (1993).
Despite the trial judge's conclusion that the police "waited at least six seconds and probably more before they entered by knocking the door down," the trial judge also noted "it would seem to me that it's clear she had reason not to open the door." The trial judge further stated as follows:
I think that's a matter — I mean, certainly she was in a position to give some thought about opening the door. . . .
But my perspective would have been the same way. I would have had to think about it myself, and I think anybody would have; being late at night in a rural area, after being told I'm George. Is Mel there, at least on one occasion; and then some more conversation and say, well, forget that. I'm the State Police, open up.
Once the ruse of using the name "George" failed to cause the female to open the door, the police further exacerbated the potential for heightening the female's confusion and concern by stating, "Could you open up the door? I would like to talk to you." The Commonwealth and the majority assert that despite this second trickery she should have immediately opened the door when "George" said "State Police." Both the Commonwealth and the majority ignore the risk of personal danger that a reasonable person in Rosenberger's position may have perceived and feared.
Having failed to gain entry by the ruse and, consequently, having created a circumstance in which the female occupant reasonably would have feared personal harm as a result of the failed ruse, the police created a circumstance in which they were required to verify their identity in a reasonably credible fashion before attempting a forced entry. The police could have allayed that fear by offering to slide the search warrant under the door or by suggesting that a uniformed officer would come into the porch light if she would look out the window. The failure to take some corrective action is a critical determinative in assessing the lack of reasonableness in the execution of the warrant.
No exigency required the police to respond in the rapid manner that occurred. Officer Petska testified that they were expecting to find a large quantity of marijuana and that there was no danger of the marijuana being destroyed while they waited to gain admittance. Furthermore, the police officer who was at the front door conversing with Rosenberger said that he had no indication that she had moved away from the door before they broke the door. The police also had no indication that any other movement was occurring in the residence.
Officer Petska's testimony also belied the assertion that the police believed that occupants of the house were armed. He testified that all of the officers met and were briefed immediately prior to the raid and, they were not told that guns were in the residence. Indeed, he was at the front door and was first in the residence, and he had no knowledge that guns were expected to be in the residence. Moreover, no guns were found in the residence. Officer Fagan's testimony that he had been told by an informant that weapons had been seen in the residence at some earlier unidentified time does not provide a credible basis to believe an exigency existed.
The decision in this case is contrary to the analysis and law announced in Wynne, where the Court concluded under circumstances that the resident could see the police officer "[t]he police did not provide [the occupant] a reasonable opportunity to respond to the knock and allow the police peaceable entry." ___ Va. App. at ___, 427 S.E.2d at 231. Moreover, this Court has noted that when police depart from the "usually recognizable signals to gain peaceful entry," they risk creating circumstances in which the resident may reasonably believe that "a robber was attempting to gain entry."Gladden, 11 Va. App. at 600, 400 S.E.2d at 793-94. Furthermore, an occupant of a residence has "a right to resist seeming aggression on his private property." Id. at 600, 400 S.E.2d at 793 (quoting Johnson v. Commonwealth, 213 Va. 102, 104, 189 S.E.2d 678, 679 (1972), cert. denied, 409 U.S. 1116 (1973)). Consequently, in analyzing police conduct, we must determine what that conduct "communicates to the occupants within."Id. at 599, 400 S.E.2d at 793.
The failed ruse put in doubt the expectation that a reasonable person in Rosenberger's position might believe the announcement, "State Police," from the other side of a wooden door was legitimately made by persons acting under color of law. Just as the police expected that the trickery of using the name "George" might have been a sufficient ruse to gain admittance to the residence, a reasonable person in Rosenberger's position might have reasonably surmised that a person who would resort to trickery by using a name she did not recognize might also use the ruse of "State Police" to gain entry to her residence to cause her harm. Following the failed ruse, the announcement "State Police" did "not carry with it the recognition factor" that the announcement would have carried in the absence of the ruse. Gladden, 11 Va. App. at 600, 400 S.E.2d at 793.
Whatever exigency the police perceived in Rosenberger's failure to respond to the announcement of their true identity was caused by their decision to use trickery and the failure of that trickery to create their desired expectation. When the ruse failed, the police were not then at liberty to react as if they had never tried the ruse. The overall police action "did not give notice to the occupants of the [residence] that there were individuals at the door seeking peaceable entry, thus inviting the occupants to respond to the door." Id. at 600, 400 S.E.2d at 794.
For these reasons, I would reverse the trial judge's failure to suppress the evidence and I would reverse the conviction.