                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Senior Judge Hodges
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                           MEMORANDUM OPINION * BY
v.   Record No. 0467-99-4                   JUDGE LARRY G. ELDER
                                                JULY 20, 1999
CARLOS F. MARTINEZ


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                       F. Bruce Bach, Judge

          Virginia B. Theisen, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellant.

          David Bernhard (Cheryl Gardner; Bernhard &
          Gardner, on brief), for appellee.


     Carlos F. Martinez (defendant) stands indicted for two

counts of assault and battery on a police officer.     The

Commonwealth appeals a pretrial ruling of the Fairfax County

Circuit Court (trial court) granting defendant’s motion to

suppress all evidence resulting from an allegedly illegal entry

into defendant’s home.     On appeal, the Commonwealth contends the

trial court erroneously held (1) that no exigent circumstances

justified the entry and (2) that the officer subjected defendant

to a custodial interrogation without first Mirandizing him.     We

affirm the trial court’s ruling granting the motion to suppress.


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                                 I.

                                FACTS

     On the evening of October 19, 1998, Police Officer Kristi

Denham received information that, during a 911 call, a man and

woman were screaming in the background and that the woman

sounded as if she was out of breath before the phone was

disconnected.

     Denham testified that she had responded to a minimum of one

hundred domestic violence calls and that she knew, based on her

experience and specialized training, that domestic violence

situations tend to be emotional, high stress encounters.    Her

goal was to keep the suspected disputants apart so as to ensure

their safety and the safety of others.

     Officer Denham arrived on the scene, and her back-up

officer, Officer Vickery, arrived about thirty seconds later.

Officer Denham saw Milvia Galeano, defendant’s wife, standing in

the front yard crying.   Galeano had a “fresh” red mark on her

neck and was holding her neck and pointing toward defendant, who

was standing in the front door of the house.    Denham spoke

briefly to Galeano, who spoke Spanish and could not communicate

very well in English.    Officer Denham interpreted Galeano’s

statements and actions to mean that defendant was the cause of

her injury and her emotional upset.     Although Officer Vickery

spoke Spanish and could have communicated more easily with



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Galeano, Denham chose to approach defendant before attempting,

through Vickery, to obtain further information from Galeano.

        Denham testified that the storm door was open several

inches and that she thought defendant, who had a set of keys in

his hand, was “getting ready to exit the house.”    As Denham

approached, she noticed two children inside the house with the

defendant, and Denham became concerned for their safety, as well

as the safety of Galeano, herself and Officer Vickery.    Denham

said her training taught her to be conscious of the risk of a

parent taking his children hostage in order to prevent arrest or

the risk that he would obtain a weapon with which to threaten

those outside the house.    Denham did not believe at that point

that she had sufficient cause to arrest defendant or pat him

down for weapons, but she wanted to question him about the

possible domestic dispute and said she did not consider him free

to leave.

        Without requesting permission from defendant or Galeano,

Denham opened the storm door and walked a few feet inside the

door.    Prior to Denham’s entry, defendant was “calm in that he

wasn’t yelling [or] . . . screaming.”    He was not threatening

the children or anyone else, and Denham saw no weapons.    The

only behavior Denham thought was unusual or “strange” was that

defendant refused to look at her, looking instead at the ground

and shifting his eyes back and forth, which she interpreted to

mean “he was looking for an avenue of escape.”

                                 - 3 -
     Denham, viewing the keys in defendant’s hand as a potential

weapon, took them out of his hand and tossed them onto the

nearby couch.    When she asked him twice what had happened, he

told her both times to ask the children.   In a more

authoritative voice, Denham told him that he needed to tell her

what happened.   He then said that he and his wife had an

argument over the use of the telephone and that, during the

argument, “he somehow hit her neck.”    Denham advised him that

she was placing him under arrest for domestic assault.    Denham

said he refused to cooperate, and he subsequently was charged

with assault and battery on both Denham and Vickery.

     Galeano testified at the motion hearing with the aid of an

interpreter.    Galeano explained that she and defendant had had

“an altercation” that “wasn’t anything great” and that her

ten-year-old son called 911.   She said she was outside when the

police arrived because she was going to make a phone call.

Galeano testified that, in response to Denham’s questions,

Galeano told her three times that “everything was calm.”

Galeano denied that she was crying when Denham arrived.     When

Officer Vickery arrived on the scene, Denham “went up to the

door [and] . . . told [defendant] to put his hands up.”

Defendant then asked Denham three times to “let [him] explain.”

Galeano denied that defendant was responsible for the red mark

on her neck and said that Officer Hall, “who . . . offered . . .



                                - 4 -
to take [her] to prison,” caused those marks without

provocation. 1

     Galeano admitted that defendant had been convicted for

assaulting her on three prior occasions.    No evidence indicated

that Officer Denham was aware of this fact when she responded to

the call.    Further, no evidence indicated that appellant

previously had harmed or threatened to harm his children.

     The trial court granted the motion to suppress, ruling that

no exigent circumstances existed to justify Denham’s warrantless

entry into defendant’s home and that defendant was subjected to

a custodial interrogation without benefit of Miranda warnings.

                                  II.

                               ANALYSIS

     At a hearing on a defendant’s motion to suppress, the

Commonwealth has the burden of proving that a warrantless search

or seizure did not violate the defendant’s Fourth Amendment

rights.     See Simmons v. Commonwealth, 238 Va. 200, 204, 380

S.E.2d 656, 659 (1989).    On appeal, we view the evidence in the

light most favorable to the prevailing party, granting to it all

reasonable inferences fairly deducible therefrom.     See

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d

47, 48 (1991).    “[W]e are bound by the trial court’s findings of

historical fact unless ‘plainly wrong’ or without evidence to


     1
       No evidence in the transcript of the motion hearing
further identified Officer Hall or explained his involvement.

                                 - 5 -
support them[,] and we give due weight to the inferences drawn

from those facts by resident judges and local law enforcement

officers.”     McGee v. Commonwealth, 25 Va. App. 193, 198, 487

S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United

States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d

911 (1996)).    However, we review de novo the trial court’s

application of defined legal standards such as probable cause

and reasonable suspicion to the particular facts of the case.

See Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663.

     The Fourth Amendment protects people from unreasonable

searches and seizures.    U.S. Const. amend. IV.   “In terms that

apply equally to seizures of property and to seizures of

persons, the Fourth Amendment has drawn a firm line at the

entrance to the house.     Absent exigent circumstances, that

threshold may not reasonably be crossed without a warrant.”

Payton v. New York, 445 U.S. 573, 590, 100 S. Ct. 1371, 1382, 63

L. Ed. 2d 639 (1980) (emphasis added).    “Among the circumstances

accepted as providing ‘exigent circumstances’ for a warrantless

search [or seizure in a private residence] are those where a

true ‘emergency’ exists.”     Reynolds v. Commonwealth, 9 Va. App.

430, 436, 388 S.E.2d 659, 663 (1990).    As the United States

Supreme Court has observed,

             [w]e do not question the right of the police
             to respond to emergency situations. . . .
             [T]he Fourth Amendment does not bar police
             officers from making warrantless entries and
             searches when they reasonably believe that a

                                 - 6 -
            person within is in need of immediate
            aid. . . . “The need to protect or preserve
            life or avoid serious injury is
            justification for what would be otherwise
            illegal absent an exigency or emergency.”
            . . . [A] warrantless search must be
            “strictly circumscribed by the exigencies
            which justify its initiation” . . . .

Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408, 2413, 57

L. Ed. 2d 290 (1978) (emphases added; citations and footnotes

omitted).

     In each such case, the court must determine “whether the

law enforcement officers had probable cause at the time of their

warrantless entry to believe that cognizable exigent

circumstances were present.”     Keeter v. Commonwealth, 222 Va.

134, 141, 278 S.E.2d 841, 846 (1981) (entry to prevent

destruction of evidence); see Oliver v. United States, 656 A.2d

1159, 1166 (D.C. 1995) (equating “reasonable belief” language in

Mincey with “probable cause”).    We evaluate the existence of

probable cause under a standard of objective reasonableness.

See, e.g., Whren v. United States, 517 U.S. 806, 813, 116 S. Ct.

1769, 1774, 135 L. Ed. 2d 89 (1996).     “The officers are not

required to possess either the gift of prophecy or the

infallible wisdom that comes only with hindsight.    They must be

judged by their reaction to circumstances as they reasonably

appeared to trained law enforcement officers to exist when the

decision to enter was made.”     Keeter, 222 Va. at 141, 278 S.E.2d

at 846.


                                 - 7 -
     Here, regardless of whether we view the facts in the light

most favorable to the Commonwealth or to the defendant, 2 the

outcome is the same.   Even under the Commonwealth’s version of

the facts, Officer Denham lacked a sufficient legal basis for

entering defendant’s home without a search or arrest warrant.

Although a potentially volatile domestic situation existed in

this case, the facts known to Officer Denham did not provide

probable cause to believe the officer’s “immediate” entry into

defendant’s home was necessary to “protect or preserve life or

avoid serious injury” to Galeano or her children.    Galeano

herself was outside the home with Officer Vickery while

defendant was inside the home.    Although the officer’s

experience and training are relevant to interpreting the

dynamics of a potentially dangerous situation, they cannot be

the sole basis for exigent circumstances without evidence to

substantiate the officer’s concerns.     The record contains no

evidence that defendant was armed, raised his voice, or made any

threats toward Galeano, his children or the officers.      In fact,


     2
       The Commonwealth argues that the trial court ruled on the
motion to suppress without considering Galeano’s testimony and
contends that Galeano’s testimony was inherently incredible.
The trial court did not--and was not required to--make clear
whether it believed the testimony of Officer Denham or the
testimony of Milvia Galeano, or some combination of the two.
However, it appears to have assumed, for the purpose of its
ruling, that Galeano’s testimony was incredible and to have
found under the version of the facts most favorable to the
Commonwealth that no exigent circumstances justified Denham’s
warrantless entry.


                                 - 8 -
the evidence indicates that, prior to Officer Denham’s entry,

appellant was calm and, at most, was “looking for an avenue of

escape.”    Defendant’s mere presence in his own home with his two

children following some sort of altercation with his wife did

not provide the officers with probable cause to believe that

immediate entry was necessary to prevent death or serious

injury.    To hold otherwise would be to create a blanket

exception to the warrant requirement in cases involving domestic

disputes.   We decline the Commonwealth’s invitation to do so.

Compare Oliver, 656 A.2d at 1168 (holding that “person’s status

as a kidnapping victim places him or her in continuing danger of

harm at the hands of his or her captor,” permitting immediate

entry of residence under emergency exception to warrant

requirement, “even if the victim apparently is being well

treated”); State v. Applegate, 626 N.E.2d 942, 943-44 (Ohio

1994) (holding that police who responded to 911 call from wife

reporting domestic dispute and asking that husband be removed

from the home were justified in entering house under emergency

exception to warrant requirement to ascertain welfare of wife

after they arrived outside residence and heard an angry male

voice and the sound of furniture being turned over).

     Because we affirm the trial court’s ruling granting the

motion to suppress all statements and evidence based on the

officer’s illegal entry into the defendant’s home, we do not

reach the issue of whether his statements about hitting his wife

                                - 9 -
should have been suppressed as the product of a custodial

interrogation for which he received no Miranda warnings.

     For these reasons, we affirm the ruling of the trial court

and remand for further proceedings consistent with this opinion.

We make no comment on the impact of this ruling on defendant’s

two pending charges for assault and battery of a law enforcement

officer as no such question is before us on appeal.

                                           Affirmed and remanded.




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