Commonwealth v. Hopson, Record No. 0569-05-1 (VA 9/6/2005)

• Decision Date: 06 September 2005
• Docket Number: Record No. 0569-05-1.
• Court: Virginia Supreme Court
• Parties: COMMONWEALTH OF VIRGINIA v. RUSSELL HOPSON.

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COMMONWEALTH OF VIRGINIA v. RUSSELL HOPSON.

Record No. 0569-05-1.

Court of Appeals of Virginia, Teleconference.

September 6, 2005.

Appeal from the Circuit Court of the City of Hampton Louis R. Lerner, Judge.

Susan L. Parrish, Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on briefs), for appellant.

Ronald L. Smith (Smith & Smith-Ashley, on brief), for appellee.

Present: Judges Humphreys, Kelsey and Senior Judge Overton.

MEMORANDUM OPINION^*

JUDGE D. ARTHUR KELSEY

A grand jury indicted Russell Hopson for the murder of Travesta Williams and for felonious use of a firearm. Before trial, the trial court suppressed the evidence of Williams's body found by police officers in Hopson's residence. The officers violated the Fourth Amendment, the trial court held, by entering Hopson's residence without a warrant. We disagree, reverse the suppression order, and remand the case for trial.

I.

While on routine patrol, Officers Wilson and Daniel received a dispatch from police headquarters. Both officers testified the dispatched information stated a neighbor called the police reporting she "heard" 10 to 12 gunshots coming from "inside" a brick residence "across" the street from her.¹ When directly asked in cross-examination, "What was the dispatch?" Daniel replied: "It was shots fired inside of a brick building — or a brick house — inside the house is what they were saying that I recall."² The caller also said that, after the shots were fired, two males "ran out of the house and ran down the street." "She gave a description of the location as across the street from my home." Officers Wilson and Daniel, in separate cars, arrived at 2108 Victoria Boulevard at about the same time.

Officer Wilson confirmed that the dispatcher gave the specific street number of the caller's residence. On cross-examination, however, Wilson had trouble remembering the address. In response, Hopson's counsel refreshed Officer Wilson's recollection by saying, "Let me read you something and ask you if this helps your memory. This is the testimony . . . under oath of the witnesses who called dispatch, Mr. Hogge, who was in the presence of his wife calling dispatch, who said, `The house is across the street.'" Hopson's counsel then read Hogge's testimony into the record:

Question to Hogge: Do you know what the address is? [speaking of the house where the gunfire was heard]

Hogge's Answer: No, 2107 or something like that. I'm in 2108. The numbers are kind of weird there.

Given that information, Hopson's counsel again asked Officer Wilson if he knew "at the time" of the dispatch if he "got a particular address or just a description saying across the street from 2108?" Officer Wilson replied: "That's probably how I got the address is going across the street from 2108, yes sir."

The officers immediately went to 2105 Victoria Boulevard, one of at least two brick houses across the street from 2108 Victoria Boulevard. It was shortly after 10:15 p.m. What drew their attention to that house was that one of the doors was partly open.³ They called out a couple of times for a reply from anyone inside. Having received no response, they "then made a decision to enter the home."⁴ They did so "to check on the welfare of anybody in the house because of the witness stating that there were shots coming from inside the home." Fearing "the worst," the officers said they thought someone might be injured or killed. They then entered Hopson's house and found Williams lying on the floor, mortally wounded by gunfire.

Based upon the discovery of the body, Officers Wilson and Daniel reported their findings and exited the home "so as not to contaminate the scene." They remained posted at the door until Detective Herb arrived. She later obtained a search warrant to search the remainder of Hopson's residence.

Charged with murder and use of a firearm, Hopson moved to suppress the evidence seized from his house on the ground that the officers' warrantless entry violated the Fourth Amendment. His argument, however, focused entirely on the alleged absence of probable cause and exigent circumstances. Hopson never challenged (indeed, he appeared to fully accept) the officers' testimony about a report of gunfire coming from "across the street from 2108 and that it's a brick house." Instead, his counsel argued only that the officers violated the Fourth Amendment by failing to corroborate the report. "So the search warrant is bootstrapped to the unlawful entry," counsel concluded, "that doesn't meet the test of the Supreme Court, probable cause plus exigent circumstances."

In reply, the prosecutor argued that probable cause was legally irrelevant. If police officers, she asserted, have "articulable facts to believe that there's someone inside the home that's in need of emergency care or police assistance, then they can enter that home without a search warrant." She then surveyed the totality of the circumstances: the report of 10-12 gunshots coming from a brick house across the street; the two fleeing males; the presence of at least one open door; and the absence of any response to the officers' calls into the residence. These circumstances, she concluded, warranted an objectively reasonable belief that "someone was in danger" and "based on that, the officer at that time then entered the home."

In questions to the prosecutor, the trial judge sought to confirm his recollection of the officers' testimony:

Court: And you believe that Officer Wilson and/or Officer Daniel articulated facts in their testimony that would indicate that they believe that someone inside was injured or needed emergency care?

Prosecutor: That there may be someone inside, yes, sir. They had numerous shots fired, they see two — or they heard that there were numerous shots fired. That was the information they received. Numerous shots fired, two people running from the home, the door is left wide open, and they come in and they call out, they see the home in disarray.

Court: The dispatch did not say that two people had run from a home and left the door open, did it?

Prosecutor: No, it didn't say —

Court: The dispatcher said, Two black males running from a home across the street and described it as a brick home; is that correct?

Prosecutor: Yes, sir. When they arrived — Court: And Officer Daniel and Wilson arrive, place themselves in front of 2108 and look across the street and pick out one of the two brick homes. They approach the brick home that they see that a door is open. Officer Wilson can't recall if there was, in fact, even a storm door there, but would concede that the picture shows one. Officer Daniel says that the interior door was partially open and the storm door was partially open and he peeked in and saw the house was in disarray.

Prosecutor: If I can correct one thing —

Court: Okay. Correct me.

Prosecutor: The storm door was open. The interior door was partially open.

Court: Okay. The storm door was open and the interior door was partially open and he peeked in and saw that the house was in disarray.

Prosecutor: Yes, sir.

Court: And from thence, everything else took place.

Prosecutor: Yes, sir.

Court: Anything further?

Prosecutor: No, sir.

Court: Mr. Smith [Hopson's counsel], anything further?

Smith: No, sir.

The trial judge then took a brief recess and, upon returning to the bench, asked counsel for any additional summation they wished to make. Hopson's counsel made a few brief remarks, including that the officers never "articulated" to the court "some reason to believe . . . that someone was injured" prior to their entry into the house. The trial judge then ruled, agreeing with Hopson's counsel that neither officer had "articulated anything" that would excuse them from obtaining a warrant prior to entering Hopson's house.

On appeal, the Commonwealth repeats the same arguments made by the prosecutor in the trial court. In reply, Hopson asserts that the trial judge correctly held that the officers never "articulated" circumstances justifying a warrantless entry. Hopson does not assert on appeal that the trial judge disbelieved the officers, or found their motives pretextual, or made any factual findings rejecting any aspect of their testimony. Instead, Hopson contends only that the officers' testimony did not present facts sufficient to authorize the warrantless entry into his residence.

II.

A. THE APPELLATE STANDARD OF REVIEW

In Kyer v. Commonwealth, 45 Va. App. 473, 479, 612 S.E.2d 213, 216-17 (2005) (en banc), we applied a familiar standard of appellate review for addressing the emergency and community caretaker exceptions to the Fourth Amendment's warrant requirement. Under this standard, we give "deference to the factual findings of the trial court" and "independently determine" whether those facts satisfy the requirements of the Fourth Amendment. Id. This approach requires us to decide de novo the "ultimate question" whether the officers violated the Fourth Amendment. Slayton v. Commonwealth, 41 Va. App. 101, 105, 582 S.E.2d 448, 449-50 (2003) (citation omitted). The reason for this standard has been explained this way:

This standard of review, which also has been described by the Supreme Court as independent appellate review, "tends to unify precedent and will come closer to providing law enforcement officers with a defined `set of rules'" that will, in most instances, enable these officers to honor an accused's constitutional rights.

Commonwealth v. Redmond, 264 Va. 321, 327, 568 S.E.2d 695, 698 (2002) (quoting Ornelas v. United States, 517 U.S. 690, 697 (1996)).⁵

This ultimate-question standard marks out the Fourth Amendment boundary between mere factual inferences (triggering factfinder deference) and the purely legal assessment of the constitutional significance of those inferences (requiring de novo appellate review). We know we have reached the ultimate question in a case when there is nothing left to ask. For example,...