Com. v. Talbert
| Decision Date | 27 November 1996 |
| Docket Number | No. 1739-96-4,1739-96-4 |
| Parties | COMMONWEALTH of Virginia v. Charles Joseph TALBERT. Record |
| Court | Virginia Court of Appeals |
Marla Graff Decker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellant.
Richard C. Goemann, Senior Assistant Public Defender (Office of the Public Defender, on brief), for appellee.
Present: MOON, C.J., and WILLIS and FITZPATRICK, JJ.
In this appeal, taken pursuant to Code § 19.2-398, the Commonwealth contends that the trial court erred when it suppressed evidence based upon its finding (1) that the police officers were not in hot pursuit of the defendant when they followed him into a residence, and (2) that no exigent circumstances necessitated the officers' entry into the residence. We agree and reverse the order of suppression.
Talbert contends that the Commonwealth is barred from raising on appeal the issue whether the evidence established exigent circumstances necessitating the officers' entry into the residence. He argues that "the Commonwealth's petition for appeal did not raise the issue of whether the officers' entry into the residence was proper because it involved exigent circumstances necessitating immediate action." The record does not support this contention. The Commonwealth's petition stated the question, "Was the evidence properly suppressed where the officers were in hot pursuit or exigent circumstances were present?" This question clearly embraces the issue of exigent circumstances.
On the evening of March 16, 1996, Officer William Bunney, along with other officers of the Alexandria Police Department, was engaged in undercover surveillance. At about 6:15 p.m., while it was still "light out," Bunney saw two men and a woman walking north in the 800 block of North Alfred Street. They stopped at the southeast corner of Alfred and Montgomery Streets, where they remained "for a period of time[,] looking around." Then they walked away.
About twenty minutes later, Talbert "came into the area from the north," accompanied by several other people. Talbert was in a wheelchair. The group stopped at the same southeast corner and remained there, just "hanging out." One of the two men who had previously stopped at the corner returned, accompanied by the same woman. The woman spoke to Talbert, who then spoke to a man standing behind him. That man began pushing the wheelchair north, followed by the man and woman and by two other men from Talbert's group. They all stopped at an alley on the east side of the 900 block of North Alfred Street. The two men from Talbert's group "stayed at the mouth of the alley at the street." Talbert, the man who was pushing the wheelchair, and the man and woman, entered the alley, out of Bunney's view.
Shortly thereafter, Talbert and the others returned from the alley. The man and woman stood directly beside Talbert, who had his hands in front of him on his lap. Bunney saw a "very large rock of crack cocaine in a plastic bag" in Talbert's hand. Talbert broke a piece from the large chunk and placed it in the right hand of the man, who was standing beside him. The man looked at Talbert. The woman began walking toward the mouth of the alley and the man followed her with the piece of "rock" in his hand. He stopped momentarily, looked at "the rock" again, and then left with the woman. Talbert wrapped plastic around the large rock and placed it on the right side of his body.
Bunney radioed a description of the man and woman to the other officers and continued to monitor and report their location so that the officers could arrest them. The officers approached the man who had acquired the cocaine, but he put the rock in his mouth and resisted. That cocaine was not recovered.
Looking again, Bunney did not see Talbert or his group at the entrance to the alley or in the alley itself. He radioed for the officers in the street to "come into the area quickly," because he could no longer locate Talbert. He gave a description of Talbert and identified him by name.
Bunney then saw a man backing Talbert's wheelchair into the second house in the 900 block of North Alfred Street, "directly adjacent off of the alley where the transaction had taken place." The man was lifting the wheelchair up the porch steps and was backing into the house. Bunney did not know who owned the house. He radioed the location to the officers in the street and instructed them to arrest Talbert for distribution of cocaine. He also told them that Talbert "had more dope on him ... [a] large rock...." He told the officers to hurry because Talbert "was being wheeled into the unit."
Officer Ballenger, who knew Talbert by name, and another officer proceeded to the "second to the end house in the east side alley of the 900 block." Ballenger saw a man "with his back to the door" and his hands out in front of him, "walking back into the house itself." The "exterior" door, which had glass only for its upper half, was partially obstructing the officer's view. Ballenger could, however, see "wheels down below the door." It appeared to him that the man with his back to the inside of the house was lifting a wheelchair into the house. Ballenger recognized Talbert's face through the glass portion of the exterior door.
Ballenger, believing that he had probable cause to arrest Talbert, got out of the van in which he and the other officer were traveling and ran to the door. The exterior door was still "open about a foot" and the inside door was completely open. He saw Talbert in the living room, still in the wheelchair. Ballenger announced "Police" in a loud voice, opened the exterior door, and went inside. Talbert had his right hand behind the man who was behind his wheelchair. Ballenger saw something fall "in the exact place where Mr. Talbert's hand was" located. Ballenger found a "very large rock of crack cocaine" where the object had fallen. He then arrested Talbert.
Talbert moved the trial court to suppress as evidence the rock of crack cocaine found by Ballenger on the ground that the discovery was the product of an illegal search. He argued that Ballenger's entry into the house without a search warrant was presumptively unreasonable and that the circumstances provided no exception to the warrant requirement. The Commonwealth argued that Ballenger was in hot pursuit of Talbert and that exigent circumstances required and justified his warrantless entry into the house.
The trial court held:
[T]hat there is no evidence to indicate that the Defendant knew that the police had him under surveillance or that they were about to arrest him when they entered the home. The Court finds that this is not a hot pursuit case. The motion to suppress is granted.
The trial court further held, apparently in reference to Verez v. Commonwealth, 230 Va. 405, 410-11, 337 S.E.2d 749, 753 (1985), cert. denied, 479 U.S. 813, 107 S.Ct. 63, 93 L.Ed.2d 21 (1986):
If you would look at those 10 points in that Virginia Supreme Court [case], I don't think the Commonwealth meets any one of the 10, maybe one of them, the fact that they had probable cause to believe that a crime had been committed. But other than that, other than number 7, I'm not sure that you have met any of the 10.
Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639 (1980). However, exigent circumstances may justify as reasonable a warrantless entry into a dwelling for purposes of search or arrest. Verez v. Commonwealth, 230 Va. 405, 410 337 S.E.2d 749, 752-53 (1985), cert. denied, 479 U.S. 813, 107 S.Ct. 63, 93 L.Ed.2d 21 (1986). One such exigent circumstance is hot pursuit.
We have found no case that specifically defines "hot pursuit." However, we think that the term is self-defining. A pursuit is "hot" if the circumstances are such that breaking off or delaying the chase for the time required to obtain a warrant is likely to involve significant danger to any person, loss of evidence, or opportunity for the suspect to escape.
Talbert contends that for a pursuit to be "hot," the suspect must be in flight, knowing that he is being pursued. He has cited cases in which scenarios including that circumstance have been held to constitute "hot pursuit." However, he has identified no case, nor have we found any, in which that circumstance was held to be a requirement for "hot pursuit." The term "hot pursuit," as well as the other exigent circumstances that have been held to justify warrantless intrusions, relates to the circumstances governing the officer's conduct, to the situation as reasonably perceived by the officer, and must be assessed from the officer's perspective. Elusive action by the suspect will bear on this assessment, but the suspect's awareness and perceptions are not, as such, determinative.
In support of its argument that Ballenger entered the house in hot pursuit of Talbert, the Commonwealth cites ...
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