                                COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Felton
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                                               MEMORANDUM OPINION* BY
v.      Record No. 1430-05-1                                   JUDGE WALTER S. FELTON, JR.
                                                                   DECEMBER 13, 2005
BRANDON WAYNE WHITEHURST


                FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                 Frederick B. Lowe, Judge

                  Eugene Murphy, Senior Assistant Attorney General (Judith Williams
                  Jagdmann, Attorney General, on brief), for appellant.

                  James O. Broccoletti (Zoby & Broccoletti, P.C., on brief), for
                  appellee.


        Pursuant to Code § 19.2-398, the Commonwealth appeals the judgment of the trial court

granting Brandon Wayne Whitehurst’s motion to suppress evidence. The Commonwealth contends

Officer Hunter’s warrantless entry into Whitehurst’s residence, after observing a pit bull briefly

enter the residence through its open front door, was justified under the emergency doctrine of the

exigent circumstances exception to the warrant requirement. The Commonwealth argues that no

Fourth Amendment violation occurred and that the trial court erred in granting Whitehurst’s motion

to suppress evidence of Whitehurst’s marijuana cultivation. For the following reasons, we affirm

the judgment of the trial court.

                                          I. BACKGROUND

        On May 7, 2004, Virginia Beach Police Officer Jennifer Hunter was transporting a juvenile

to his home. Around 2:17 p.m. residents living in townhouses adjacent to Whitehurst’s residence

        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
flagged her down and reported that a pit bull was roaming the neighborhood and had “charged”

several residents. After taking the juvenile home, Officer Hunter returned to the neighborhood and

observed the pit bull pacing back and forth in front of Whitehurst’s residence. From inside her

vehicle, Officer Hunter saw the pit bull enter Whitehurst’s residence through the open front door. It

stayed inside for 30 seconds before it left the residence and continued to pace up and down the

street. Officer Hunter did not observe any signs of injury to the dog.

       After animal control captured the pit bull, Officer Hunter approached Whitehurst’s

residence. The front door was open approximately two and a half feet1 -- wide enough for Officer

Hunter to observe that the television was on. There were no signs of forced entry or distress.

However, the officer did observe another pit bull in the backyard of the residence. The record is

silent as to whether the pit bull had the ability to leave the confines of the backyard. Officer Hunter

retreated from the residence and called a backup unit for assistance.

       When the additional officer arrived, Officer Hunter returned with him to the residence and

knocked on the door, announcing “Virginia Beach Police,” and shouting for the occupants to

“[c]ome out.” After receiving no response, Officer Hunter testified that they were concerned that

someone inside the residence might have been injured by the pit bull. They entered the residence

and immediately smelled a strong odor of marijuana. Officer Hunter testified that they searched the

residence to ensure that no one was injured. In the course of their search, they discovered marijuana

plants growing in an upstairs bedroom.

       A hearing to suppress the evidence seized from appellant’s residence was held on December

6, 2004. The Commonwealth argued the warrantless entry was justified under the emergency

doctrine based on the pit bull’s pacing outside of the residence, the officers’ concern that someone



       1
        The officer testified both that the front door was “wide open” and opened approximately
two and a half feet. We place no significance on the apparent discrepancy.
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in the residence may have been injured by the dog, and the lack of response to the officers’ demand

at the front door for any occupants to “come out.” The trial court initially denied Whitehurst’s

motion to suppress the evidence. However, on reconsideration in light of our decision in Kyer v.

Commonwealth, 45 Va. App. 473, 612 S.E.2d 213 (2005) (en banc), it subsequently granted the

motion to suppress.

                                            II. ANALYSIS

        The Commonwealth argues on appeal that the trial court erred in granting Whitehurst’s

motion to suppress, contending the warrantless entry fell within the scope of the emergency doctrine

exception to the warrant requirement. We disagree.

        In reviewing the Commonwealth’s pretrial appeal, we “view the evidence in [the] light most

favorable to [Whitehurst], the prevailing party below, and we grant all reasonable inferences fairly

deducible from that evidence. We will not reverse the trial judge’s decision unless it is plainly

wrong.” Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991) (citing

Commonwealth v. Holloway, 9 Va. App. 11, 20, 384 S.E.2d 99, 104 (1989)).

        “Though the ultimate question whether the officers violated the Fourth Amendment triggers

de novo scrutiny, we defer to the trial court’s findings of ‘historical fact’ and give ‘due weight to the

inferences drawn from those facts by resident judges and local law enforcement officers.’” Slayton

v. Commonwealth, 41 Va. App. 101, 105, 582 S.E.2d 448, 449 (2003) (quoting Barkley v.

Commonwealth, 39 Va. App. 682, 689-90, 576 S.E.2d 234, 237-38 (2003)). “Thus, we must give

‘deference to the factual findings of the trial court’ and ‘independently determine’ whether those

findings satisfy the requirements of the Fourth Amendment.” Kyer, 45 Va. App. at 479, 612 S.E.2d

at 217 (quoting Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464 (2003)).

        “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 (1984)

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(citation omitted). However, the Fourth Amendment endorses no absolutes, condemning only

“unreasonable searches and seizures.” Kyer, 45 Va. App. at 480, 612 S.E.2d at 217. One

recognized concession to reasonableness is the emergency doctrine, which permits police to make

“‘warrantless entries and searches when they reasonably believe that a person within is in need of

immediate aid.’” Reynolds v. Commonwealth, 9 Va. App. 430, 437, 388 S.E.2d 659, 664 (1990)

(quoting Mincey v. Arizona, 437 U.S. 385, 392 (1978)); see Kyer, 45 Va. App. at 480, 612 S.E.2d

at 217. “[I]n justifying the particular intrusion the police officer must be able to point to specific

and articulable facts which, taken together with rational inferences from those facts, reasonably

warrant that intrusion.” Reynolds, 9 Va. App. at 437, 388 S.E.2d at 664.

        In Kyer, police received a tip regarding a burglary suspect that led them to Kyer’s

apartment. When the officers arrived around 4:00 a.m., the front door of the apartment was open

wide enough for an individual to “walk through it without touching the door.” 45 Va. App. at 477,

612 S.E.2d at 215. Fearing someone had “forced entry or broken into the home,” id., the officers

went inside. The trial court found the officers’ entry fell within the exigent circumstances exception

to the warrant requirement. In reversing, we noted that the situation there included “only one

arguably suspicious circumstance: an open door.” Id. at 481, 612 S.E.2d at 217.

                There were no signs of forced entry - such as pry marks, mangled
                locks, broken hinges, or disfigured door jams. No one called out
                for help. No sounds or observations suggested panic or danger
                within the apartment. There were no reports from neighbors about
                any unique medical concerns or other vulnerabilities of the
                apartment’s occupants. Nor did any of Kyer’s neighbors report
                any suspicious circumstances suggesting foul play.

Id. at 481-82, 612 S.E.2d at 217-18. Accordingly, we concluded “when the ‘only evidence of an

emergency was a door left open . . . [,] regardless of what the officers may subjectively have

thought, a reasonable person would not believe an emergency existed,’” id. at 482, 612 S.E.2d at

218 (quoting State v. Swenson, 799 P.2d 1188, 1190 (Wash. Ct. App. 1990) (noting that a “barking


                                                  -4-
dog [in the front of the residence] was ambiguous, and by itself could not suggest an individual in

medical distress”)).

       Similar to Kyer, the only arguably suspicious circumstance here was an open front door

through which a pit bull had briefly entered and left. There were no signs of distress after the dog

departed the residence. There were no reports of anyone inside the residence being attacked by the

dog, nor were there any cries for help. Moreover, Officer Hunter observed no signs of forced entry

or distress when she initially approached the open front door. The fact that no one responded to

Officer Hunter’s knocking and shouting to “[c]ome out,” when the television was clearly audible,

does not support the existence of an emergency. “‘It is simply too common an event to create a

concern of harm in the absence of other signs of trouble.’” Id. (quoting State v. Christenson, 45

P.3d 511, 514 (Or. Ct. App. 2002) (finding the escape of two pit bulls from a residence with an open

front door “did not advance the justification for entering the house, because entry into the house was

not reasonably necessary to secure the dogs”)). Likewise, the presence of the pit bull in the

backyard does not justify a reasonable belief that someone inside was injured. Moreover, nothing in

the record demonstrates the second pit bull could have exited the backyard to roam the

neighborhood.

       Given these facts, there was no justification for an objectively reasonable officer to believe

the emergency doctrine was applicable. The officers, therefore, had no legal right to enter

Whitehurst’s residence. Consequently, the trial court did not err in granting Whitehurst’s motion to

suppress evidence.

       The judgment of the trial court is affirmed.

                                                                                       Affirmed.




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