Ross v. Commonwealth

• Decision Date: 16 April 2013
• Docket Number: Record No. 0888–12–3.
• Citation: 61 Va.App. 752,739 S.E.2d 910
• Court: Virginia Court of Appeals
• Parties: Parker Chad ROSS v. COMMONWEALTH of Virginia.

61 Va.App. 752

739 S.E.2d 910

Parker Chad ROSS

v.COMMONWEALTH of Virginia.

Record No. 0888–12–3.

Court of Appeals of Virginia,

Salem.

April 16, 2013.

Joseph A. Sanzone (Sanzone & Baker, P.C., Lynchburg, on brief), for appellant.

Eugene Murphy, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: KELSEY, McCULLOUGH, JJ., and HALEY, S.J.

KELSEY, Judge.

A jury convicted Parker Chad Ross of unlawfully possessing firearms after having been convicted of a felony. Ross argues on appeal that the trial court should have suppressed the evidence of his guilt because the police discovered the firearms in his residence without a warrant. We agree and reverse his conviction.

I.

When reviewing a denial of a suppression motion, we view the evidence “in the light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.” Glenn v. Commonwealth, 49 Va.App. 413, 416, 642 S.E.2d 282, 283 (2007) ( en banc ) (citation omitted), aff'd,275 Va. 123, 654 S.E.2d 910 (2008). This standard requires us to “give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” Jones v. Commonwealth, 279 Va. 521, 528, 690 S.E.2d 95, 99 (2010) (citation omitted). “In doing so, we consider facts presented both at the suppression hearing and at trial.” Smith v. Commonwealth, 61 Va.App. 112, 116, 733 S.E.2d 683, 685 (2012).

So viewed, the evidence showed Ross filed a petition in the Amherst County Juvenile and Domestic Relations District Court seeking additional visitation with his daughter, who was in the physical custody of her mother. The JDR district court ordered the Lynchburg Department of Social Services (DSS) to conduct a “home study” of Ross and to report its findings to the court. See App. at 42. The order authorized an unannounced visit, but did not authorize the DSS social worker to enter Ross's residence against his will.

Prior to conducting the home study, the DSS social worker determined that Ross was a “convicted felon,” ¹id. at 19, and suspected him of distributing marijuana. The social worker also obtained from an undisclosed source a photo of Ross holding what appeared to be an SKS rifle. Another photo showed Ross and one of his children together holding the same rifle. The social worker also suspected Ross of a “violent background with women” including his ex-wife. Id. Given his concerns, the social worker asked the Lynchburg police to provide backup security during the home visit. The social worker provided the police with the results of his investigation of Ross. He also advised the police “there was a possibility there may be minor children in the residence.” Id. at 20.

On the day of the home visit, the social worker arrived at Ross's home and spoke with Ross in the front yard. As the social worker remembers it, Ross “was trying everything verbally to convince me that he didn't want me in his home at that point.” Id. at 46. Ross did not threaten the social worker or commit any criminal act in the social worker's presence.

A police officer, viewing the situation from an unmarked police car, saw Ross “getting upset and somewhat agitated” and “flaring his arms around” while speaking to the social worker. Id. at 7. The officer called for uniformed officers in a marked police car to pull up in front of the home. As they drove up, they observed Ross to be “extremely nervous,” “very tense and expressionless,” and his body “appeared to become very rigid and upright.” Id. at 15. When Ross saw the marked police car come to a stop, he ran back into his residence.

The uniformed officers did not observe Ross commit any “criminal act” or possess any “dangerous instrumentality.” Id. at 17. Nor did they conclude they had “probable cause” to arrest Ross for any crime. Id. at 18. Nonetheless, while the social worker remained outside, two officers, with weapons drawn, entered Ross's residence and placed him in handcuffs. No evidence suggested he was armed or about to arm himself. The officers observed a small child on a couch. The officers then made a protective sweep of the residence and discovered in plain view marijuana and various firearms. Based upon their observations, the officers obtained a search warrant and seized the incriminating evidence.

Prior to trial, Ross moved to suppress the incriminating evidence found in his residence. He claimed the officers' warrantless entry violated the Fourth Amendment, and thus, the later warrant based upon that entry was likewise invalid. The trial court denied the motion and conducted a jury trial at which Ross was convicted of possession of a firearm by a convicted felon in violation of Code § 18.2–308.2.²

II.

On appeal, Ross contends the trial court erred in not suppressing the evidence of his guilt discovered during the warrantless entry into his residence. In response, the Commonwealth argues the warrantless entry was justified under the emergency and community-caretaker exceptions to the warrant requirement.

A. The Warrant Requirement & Exceptions

“Among the many interests served by the Fourth Amendment, the privacy interest in one's home has few equals.” Kyer v. Commonwealth, 45 Va.App. 473, 480–81, 612 S.E.2d 213, 217 (2005) ( en banc ); see also Washington v. Commonwealth, 60 Va.App. 427, 436–37, 728 S.E.2d 521, 526 (2012). “At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 2041, 150 L.Ed.2d 94 (2001) (citation and internal quotation marks omitted). “It is axiomatic that the ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’ ” Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732 (1984) (citation omitted).

As a general rule, “searches and seizures inside a home without a warrant are presumptively unreasonable.” Kentucky v. King, –––U.S. ––––, ––––, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011) (citation omitted). “But even on this topic the Fourth Amendment's text endorses no absolutes. It instead condemns only ‘unreasonable’ searches and seizures.” Kyer, 45 Va.App. at 480, 612 S.E.2d at 217. The “presumption may be overcome in some circumstances” because the “warrant requirement is subject to certain reasonable exceptions.” King, ––– U.S. at ––––, 131 S.Ct. at 1856.

“One well-recognized exception applies when ‘the exigencies of the situation’ make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” Washington, 60 Va.App. at 436, 728 S.E.2d at 526 (quoting King, ––– U.S. at ––––, 131 S.Ct. at 1856). Such exigencies often arise in one of two scenarios: (i) where the police have probable cause to enter or search a location or thing, but exigent circumstances excuse the need to obtain a warrant, and (ii) where no probable cause exists, but a warrantless entry or search is justified because of an emergency.

In the first category, the exigent circumstance exception “necessarily embraces the separate, but closely related, question of probable cause.” Smith v. Commonwealth, 56 Va.App. 592, 600, 696 S.E.2d 211, 215 (2010); see also Alexander v. Commonwealth, 19 Va.App. 671, 674, 454 S.E.2d 39, 41 (1995). In these cases, the police have probable cause to enter or search and exigent circumstances justify doing so without first obtaining a warrant. See, e.g., Verez v. Commonwealth, 230 Va. 405, 337 S.E.2d 749 (1985) (holding police had probable cause to believe a motel room contained drugs prior to the warrantless entry); Washington, 60 Va.App. at 437–38, 728 S.E.2d at 526–27 (finding probable cause and exigent circumstances to enter what appeared to be a recently burglarized residence).

In the second category, the exigency need not be directly related to suspected criminality. In such cases, the constitutional reasonableness standard “recognizes the ‘right of the police to enter and investigate’ when someone's health or physical safety is genuinely threatened,” (the so-called emergency exception), and also takes into account that “police owe ‘duties to the public, such as rendering aid to individuals in danger of physical harm, reducing the commission of crimes through patrol and other preventive measures, and providing services on an emergency basis,’ ” (often called the community-caretaker exception). Kyer, 45 Va.App. at 480–81, 612 S.E.2d at 217 (citation omitted); see also Knight v. Commonwealth, 61 Va.App. 297, 306–07, 734 S.E.2d 716, 720–21 (2012) (surveying the scope of the community-caretaker exception).³

In this case, the Commonwealth concedes the officers did not have probable cause to believe Ross may have committed (or was about to commit) a crime. Nor does the Commonwealth contend that Ross had hidden or destroyed (or was about to hide or destroy) incriminating evidence in his residence. On appeal, the Commonwealth relies solely on the emergency and community-caretaker exceptions to the warrant requirement.⁴ We find neither applicable to this case.

B. The Emergency Exception

The emergency exception recognizes “that the Fourth Amendment permits an officer to enter a residence if the officer has a reasonable basis for concluding that there is an imminent threat of violence.” Ryburn v. Huff, ––– U.S. ––––, ––––, 132 S.Ct. 987, 990, 181 L.Ed.2d 966 (2012) ( per curiam ). When this exception applies, the “need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.” Id. (quoting Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 1947, 164 L.Ed.2d 650 (2006)). Police officers understandably must respond, with or without a warrant, to any “imminent threat to their safety and to the safety of others.” Id. at ––––, 991;see also Kyer, 45 Va.App. at 480–81...