Commonwealth of Virginia v. Joseph Lee Dolmovich ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons and Frank
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 0451-99-1 JUDGE DONALD W. LEMONS
JULY 6, 1999
JOSEPH LEE DOLMOVICH
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellant.
Theophlise Twitty for appellee.
By order dated January 25, 1999, the Circuit Court for the
City of Newport News granted Joseph Lee Dolmovich's motion to
suppress evidence seized after the execution of a search
warrant. The Commonwealth appeals the court's ruling, arguing
that the court utilized the wrong test in suppressing the
evidence. We agree with the Commonwealth, and we reverse the
court’s order suppressing the evidence, and remand for further
proceedings.
I. BACKGROUND
On February 13, 1998, members of the Vice and Narcotics
Unit of the Newport News Police Department obtained a search
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
warrant for the premises of Apartment A at 3502 1/2 Washington
Avenue. Apartment A is located on the second floor of the
building, facing the street, with windows visible from the
street. The sidewalk is "under" the windows. Detective J.W.
Holloway testified that "[t]his area of 35th and the Washington
Avenue area, we regularly have problems with narcotics, and by
that I mean dealing with narcotics." The warrant was obtained
on the basis of a confidential reliable informant to search for
crack cocaine. Ralph Kelley, the lessee of the apartment, was
the "target" of the search.
Holloway was the assigned case agent for the search. Prior
to the execution of the warrant, Holloway informed the Vice and
Narcotics Unit to "knock and announce" their presence before
entering Apartment A. The unit split into two groups - one in a
gray police van, and the other in a detective's vehicle - and
met at a "staging location." While waiting at the staging
location, the informant relayed to Holloway and the unit that
people were inside Apartment A.
As the police van turned onto Washington Avenue, several
people walking on the street directly in front of Apartment A
began to yell "Police" and "Vice." When the unit exited the two
vehicles, they were wearing "black and gray police vests [and]
blue badges of authority on the chest," although a "couple of
the officers who were doing their internship were wearing
regular street vests, badges" and black hats with "Police" in
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white lettering. Holloway testified that this type of yelling
by onlookers is not uncommon in the execution of a search
warrant with the vice unit.
Detective T.D. Stephenson, assigned as a "ram officer"
whose task it was to force the door open if necessary, was the
first officer to exit the van. When Stephenson stepped out of
the van, he heard a commotion on the street, looked upward and
saw that three apartment windows were open and the lights were
on inside the apartment. Other vice officers were attempting to
clear away the crowd in front of Stephenson on the sidewalk.
Stephenson observed a number of persons on the sidewalk, some
leaving a nightclub, and some who ran from and some who ran
toward the door of the apartment building. Other people on the
street were yelling "Vice." Stephenson ran up the steps and
used the ram to force open the door. Sergeant David Seals
followed him inside and, based on his observations, arrested
Dolmovich for possession of cocaine.
On September 16, 1998, Dolmovich filed a motion to suppress
any and all evidence which "resulted from the unlawful
statements taken from the defendant at the time of his arrest in
that the statements were in violation of defendant's Fifth
Amendment Rights . . . ." A hearing was held on the motion on
September 28, 1998. By order dated January 25, 1999, the trial
court granted Dolmovich’s motion to suppress, stating "the
search of the dwelling violated the Fourth Amendment of the
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Constitution of the United States." Although the trial court
granted the motion on grounds other than those addressed by the
defendant, we will review the Fourth Amendment issue raised by
the trial court ruling.
II. "KNOCK AND ANNOUNCE" REQUIREMENT
"The Commonwealth may seek an interlocutory appeal of a
trial court's order which suppresses evidence on the grounds
that it has been obtained in violation of the provisions of the
Fourth, Fifth or Sixth Amendments to the Constitution of the
United States or Article I, Sections 8, 10 or 11 of the
Constitution of Virginia." Commonwealth v. Rice, 28 Va. App.
374, 377, 504 S.E.2d 877, 878 (1998); see Code § 19.2-398. On
appeal, this Court considers "the evidence in the light most
favorable to the prevailing party below, and the decision will
not be disturbed on appeal unless it is plainly wrong or without
evidence to support it." Commonwealth v. Thomas, 23 Va. App.
598, 609, 478 S.E.2d 715, 720 (1996). However, "[u]ltimate
questions of reasonable suspicion and probable cause . . .
involve questions of both law and fact and are reviewed de novo
on appeal." McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487
S.E.2d 259, 261 (1997) (en banc) (citations omitted).
Citing Lewis v. Commonwealth, 26 Va. App. 113, 117, 493
S.E.2d 397, 399 (1997), the trial court stated that prior to
forced entry of a building, a police officer executing a search
warrant must: "(1) knock; (2) identify themselves as police
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officers; (3) indicate the reason for their presence; and (4)
wait a reasonable period of time for the occupants to answer the
door." The court also stated, "[o]nly two exceptions [to the
"knock and announce" rule] exist which allow an officer to make
an unannounced entry: '(1) where the officers have probable
cause to believe that their peril would be increased if they
announced their presence or (2) when officers have probable
cause to believe that an unannounced entry is necessary to
prevent persons within from escaping or destroying evidence.'"
Commonwealth v. Woody, 13 Va. App. 168, 170, 409 S.E.2d 170, 171
(1991). The court found that the "[t]he record fail[ed] to
support such exceptional circumstances in this case" because
"there was no testimony by the officers that they had probable
cause to believe that by identifying themselves, they would be
increasing their peril."
In Richards v. Wisconsin, 520 U.S. 385 (1997), the United
States Supreme Court articulated a "reasonable suspicion"
standard to justify a no-knock entry into a building. The Court
held,
[i]n order to justify a "no-knock"
entry, the police must have a reasonable
suspicion that knocking and announcing their
presence, under the particular
circumstances, would be dangerous or futile,
or that it would inhibit the effective
investigation of the crime by, for example,
allowing the destruction of evidence. This
standard - as opposed to a probable cause
requirement - strikes the appropriate
balance between the legitimate law
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enforcement concerns at issue in the
execution of search warrants and the
individual privacy interests affected by
no-knock entries. This showing is not high,
but the police should be required to make it
whenever the reasonableness of a no-knock
entry is challenged.
Id. at 394-95 (citations omitted). See also United States v.
Grogins, 163 F.3d 795 (1998) (following Richards, where police
officers had reasonable suspicion that their safety was at risk,
they were not required to "knock and announce" before entry into
building).
In Woody we cited Keeter v. Commonwealth, 222 Va. 134, 141,
278 S.E.2d 841, 846, cert. denied, 454 U.S. 1053 (1981), and
Johnson v. Commonwealth, 1 213 Va. 102, 189 S.E.2d 678 (1972),
cert. denied, 409 U.S. 1116 (1973), as support for the "probable
cause" requirement. Keeter and Johnson relied upon United
States Supreme Court decisions in Miller v. United States, 357
1
Johnson referred to "reasonable cause" when it favorably
cited People v. Maddox, 294 P.2d 6, 9, cert. denied, 352 U.S.
858 (1956):
"[W]hen an officer has reasonable cause
to enter a dwelling to make an arrest and as
an incident to that arrest is authorized to
make a reasonable search, his entry and his
search are not unreasonable. Suspects have
no constitutional right to destroy or
dispose of evidence, and no basic
constitutional guarantees are violated
because an officer succeeds in getting to a
place where he is entitled to be more
quickly than he would, had he complied with
[the statute]."
213 Va. at 105, 189 S.E.2d at 680.
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U.S. 301 (1958), and Ker v. California, 374 U.S. 23 (1962).
Neither Miller nor Ker involved no-knock entry upon execution of
a search warrant. Ending any confusion that may have existed,
the United States Supreme Court in Richards clearly announced
the "reasonable suspicion" standard for justification of a
no-knock entry in the execution of a search warrant.
Dolmovich filed a motion to suppress evidence "taken . . .
at the time of his arrest . . . in violation of [his] Fifth
Amendment Rights . . ." arguing that the illegal "no-knock"
entry invalidated the search and rendered all evidence seized
within "fruits of the poisonous tree." Despite Dolmovich's
reliance on the Fifth Amendment for the alleged violation, the
trial court resolved the matter on the basis of the Fourth
Amendment of the United States Constitution.
The trial judge stated,
The Court is of the opinion that it is not
bound to follow the less stringent standard
adopted by the federal courts. . . . In
this area, Virginia has chosen to adopt
rules which provide greater protections to
the citizen than what is afforded under
Federal law.
The United States Supreme Court's interpretation of federal
constitutional provisions is binding on the states. In Arizona
v. Evans, 514 U.S. 1 (1995), the Court stated,
[s]tate courts are absolutely free to
interpret state constitutional provisions to
accord greater protection to individual
rights than do similar provisions of the
United States Constitution. They are also
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free to serve as experimental laboratories,
in the sense that Justice Brandeis used that
term in his dissenting opinion in New State
Ice Co. v. Liebmann, 285 U.S. 262, 311
(1932). . . . State courts, in appropriate
cases, are not merely free to — they are
bound to – interpret the United States
Constitution. In doing so, they are not
free from the final authority of [the United
States Supreme] Court.
Id. at 8-9.
"[S]tate courts will not be the final arbiters of the
important issues under the federal Constitution." Minnesota v.
National Tea Co., 309 U.S. 551, 557 (1940); see also Taylor v.
Commonwealth, 26 Va. App. 485, 501 n.10, 495 S.E.2d 522, 538
n.10 (1998) ("[w]e are bound by the decisions of the United
States Supreme Court with regard to interpretation of the
federal constitution" (citations omitted)) (Benton, J.
concurring).
A state can apply stricter standards by interpretations of
its own Constitution or by statute, see Penn v. Commonwealth, 13
Va. App. 399, 412 S.E.2d 189 (1991), but states are bound by the
United States Supreme Court's interpretation of the United
States Constitution. Pursuant to Richards, the trial court was
required to apply the standard of "reasonable suspicion" to
justify a "no-knock" search. We hold that the trial court erred
in applying a "probable cause" standard to justify a "no-knock"
search in the execution of a search warrant.
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III. REASONABLENESS OF ENTRY
Under Ornelas v. United States, 517 U.S. 690 (1996), and
McGee, 25 Va. App. 193, 487 S.E.2d 259, we are bound by the
trial judge's findings of historical fact, but we review mixed
questions of law and fact de novo on appeal. In applying this
standard, we find that it was reasonable for the officers to
believe that evidence might be destroyed if they had knocked and
announced their presence.
A review of the record reveals that the officers intended
to knock and announce prior to their entry into the apartment.
However, due to changed circumstances that they found upon their
arrival, they decided that a "no-knock" entry was necessary to
prevent the destruction of evidence. In Richards, the United
States Supreme Court rejected a "blanket exception" to the knock
and announce requirement in cases where drugs are the target of
the search, stating "it is the duty of a court confronted with
the question to determine whether the facts and circumstances of
the particular entry justified dispensing with the
knock-and-announce requirement." Richards, 520 U.S. at 394.
A review of the record reveals that a confidential
informant told the officers that people were present in the
apartment at the moment they left the staging location to
execute the warrant. The apartment was located on the second
floor. The sidewalk was directly under the windows, indicating
close proximity. The lights were on inside the apartment. The
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windows were open. There were a number of people on the
sidewalk, directly in front of the open windows of the
apartment, yelling "Vice."
Under the standard articulated by the Supreme Court in
Richards, the "showing [of reasonableness] is not high, but the
police should be required to make it whenever the reasonableness
of a no-knock entry is challenged." Id. at 394-95. In the case
before us, we find that the police made the requisite showing of
reasonableness. The motion to suppress should have been denied.
We reverse the order suppressing the evidence and remand for
further proceedings consistent with this opinion.
Reversed and remanded.
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