White v. Commonwealth

• Citation: 73 Va.App. 535,863 S.E.2d 493
• Decision Date: 12 October 2021
• Docket Number: Record No. 0994-20-4
• Parties: Alonzo Devon WHITE v. COMMONWEALTH of Virginia
• Court: Court of Appeals of Virginia

73 Va.App. 535

863 S.E.2d 493

Alonzo Devon WHITE

v.COMMONWEALTH of Virginia

Record No. 0994-20-4

Court of Appeals of Virginia.

OCTOBER 12, 2021

(Alexander C. Raymond; Raymond Law, PLC, on brief), for appellant. Appellant submitting on brief.

Maureen E. Mshar, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Beales, Russell and Senior Judge Haley

OPINION BY JUDGE WESLEY G. RUSSELL, JR.

A jury convicted Alonzo Devon White of possession of a Schedule I/II controlled substance. He challenges the trial court's denial of his motion to suppress the drugs found during a warrantless search of his apartment. White specifically contends the trial court erred in finding that exigent circumstances permitted the search. For the reasons that follow, we agree with White, reverse the judgment of the trial court, vacate White's conviction, and remand the matter for further proceedings consistent with this opinion if the Commonwealth be so advised.

BACKGROUND¹

Around 8:20 p.m. on March 25, 2017, police dispatch directed law enforcement to an apartment complex after receiving an anonymous call reporting that "a black female and a black male had an altercation in the parking lot in which the black male pulled a gun on the black female." Further reports indicated that "a black male had beat a female in the street with a gun."

Deputy K.J. Simpson and Sergeant Christian Mireles of the Stafford County Sheriff's Department responded to the call and arrived at the scene five and fifteen minutes later, respectively. Multiple other units also arrived in response to the call. Two "large gatherings" and numerous other scattered bystanders were present when they arrived. Simpson "didn't see the two people that were described initially where they were supposed to be," so he began speaking with the potential witnesses.

Some reported to Simpson "that a black male and a black female had gotten in a physical altercation and the black male had pulled a gun on the black female and struck her with the gun and then ran back ... into an apartment." Others indicated the woman had initiated the fight and hit the man and the man then "took out a gun and hit her with it." Other reports indicated that the man "just pointed" the gun at her head. They further stated, "we are not going to get involved with this, we are not going to testify." Those who spoke with Mireles provided "very similar stories of a female having been beaten by a black male with a gun and that he had stomped on her head and then fled into" apartment 302.

Based on what was learned in the parking lot, Simpson and two other deputies proceeded to the third floor of the apartment building, which was "one big building with three stories high, with four apartments on each floor." A resident of the third floor "came out and stated the individuals we were looking for were in apartment 302." The officers received no information to suggest that anyone other than the man and woman sought were in the apartment.

Simpson knocked on the door to apartment 302 in a "normal" manner. When no one answered, he knocked again a little bit louder. When no response was forthcoming, Simpson knocked yet again, this time "banging" loud "enough that somebody on the first floor would have heard" him. When no one answered the door, Simpson knocked yet again, striking the door even harder and with sufficient force that the door "was physically shaking[.]"

After the fourth attempt, a woman matching the general description of the woman being sought answered the door. She opened the door only "a very small ways, ... approximately ten inches or so." She was carrying a child and had a "split lip" that was swollen but not bleeding. Simpson identified himself and asked her whether "an altercation had occurred." The woman initially denied any altercation, but when Simpson confronted her with witness statements, she indicated that there had been a verbal argument only.

Simpson asked her if he could come inside to speak to her about it, but she said no and "slid out of the apartment ... in such a manner that would not allow me ... or allow anyone else to look into the apartment[.]" The woman then immediately shut the door behind her. "Still believing that there's a possibility of someone with a gun inside the residence," Simpson escorted everyone downstairs for their safety. Simpson returned to the second floor "in case the individual with the gun came back outside the apartment complex, [to be] between that person and innocent bystanders downstairs." From there, he could hear "bits and pieces" of the woman's conversation with the officers below, who were asking about the occupants of the apartment; she was "very vague and not cooperative."

Lieutenant Deuntay Diggs also responded to the call and arrived at 8:39 p.m. He stated that "twelve to fifteen deputies" were on the scene. He set up a perimeter, positioning some deputies near the windows at the rear of apartment 302. Other officers on scene relayed to him what they had ascertained regarding the status of the situation, including the witness accounts. They also informed him that the woman was not cooperating, being evasive, and refusing to identify the man or to tell whether he was inside the apartment.

Diggs then questioned the woman "to figure out what was going on and where the male party was located[.]" He inquired as to "what happened once they got into the apartment." Diggs testified that he was concerned that "something else transpired" in the apartment, fearing that she may have "hurt him in some way because of what happened downstairs." The woman falsely identified the man, ultimately discovered to be White, as Aaron Jones.

Diggs decided that officers would enter the apartment, but he wanted to wait until they could obtain a ballistic shield for officer safety. The shield was with another unit located approximately six miles away, and it was en route as of 8:57 p.m.

No attempt to obtain a search warrant was made prior to Diggs’ decision that officers would enter the apartment or their eventual entry.

Once the shield was procured, Diggs, Simpson, and Mireles returned to apartment 302. The door was closed. The officers "bang[ed], announce[d], [and] waited probably 30, 45 seconds with no reply." They "yell[ed] out the name that the female provided ...." Finding the door unlocked, one of the officers opened the door and the officers stopped at the threshold to announce themselves again. The officers ordered anyone in the residence to come out and identify themselves, but there was no response. After waiting "another 30, 45 seconds" with no reply, they then, around 9:11 p.m., stepped into the apartment, announced themselves again, and repeated their demand that anyone else in the apartment make themselves known. Another thirty or forty-five seconds later White replied, "I'm coming out" and appeared from the back bedroom. He matched the description of the man in the initial report about the altercation in the parking lot. Because White potentially maintained possession of a gun, he was ordered to show his hands and to lay on the ground; he complied and was taken into custody.

After White was detained at 9:13 p.m., Diggs and Simpson conducted a protective sweep of the apartment to ensure there were no other occupants. They observed drug paraphernalia in plain view, including a grinder, a digital scale, two-inch straws, razor blades, and some plastic baggies. White powder was visible on the straws. Based on these observations, officers decided to seek a search warrant. The officers did not leave the scene to obtain the warrant. Rather, they called in the information necessary to obtain the search warrant, and the warrant was issued.

The warrant thus obtained, a thorough search of the apartment ensued. Officers found a gun and other items that had not been in plain view, including a bag containing a powdery substance, empty plastic baggies, and another digital scale in a safe. Laboratory testing revealed that the white powder on the straws was cocaine and that the powdery substance recovered from the safe was heroin. Based on what the search uncovered, White was charged with possession of a Schedule I or II controlled substance, possession of a firearm after having been convicted of a violent felony, and possession of a firearm while possessing a Schedule I or II controlled substance.

White filed a motion to suppress the evidence discovered after the officers entered the apartment, arguing it was recovered in violation of the Fourth Amendment. Although he conceded that there was probable cause to believe he had been engaged in the altercation in the parking lot and was in the apartment, White argued that officers were required to obtain a search warrant before entering the apartment. Specifically, he contended that "[e]xigent circumstances simply were not present in this case[,]" and thus, officers were required to obtain a warrant before entering the apartment. In response, the Commonwealth argued that exigent circumstances justified the warrantless entry, but conceded that, if the entry violated the Fourth Amendment, the evidence discovered after entry, including that which was discovered after officers obtained the search warrant, should be suppressed as "fruit of the poisonous tree." Thus, the sole issue at the suppression hearing was whether exigent circumstances justified the officers’ warrantless entry into the apartment.

Simpson, Mireles, and Diggs testified at the suppression hearing. In explaining the decision to enter the apartment without first seeking a warrant, the officers gave multiple reasons. Each of them noted that domestic violence situations, which is what they had been called to investigate, raise an officer's level of concern. The officers described such situations as often "emotional" and "volatile."

The officers conceded that they had removed the woman believed to have been involved in the initial domestic...