                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Willis and Fitzpatrick
Argued by Teleconference


COMMONWEALTH OF VIRGINIA
                                              OPINION BY
v.           Record No. 1739-96-4    JUDGE JERE M. H. WILLIS, JR.
                                          NOVEMBER 27, 1996
CHARLES JOSEPH TALBERT


        FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                      Donald H. Kent, Judge
             Marla Graff Decker, Assistant Attorney
             General (James S. Gilmore, III, Attorney
             General, on brief), for appellant.

             Richard C. Goemann, Senior Assistant Public
             Defender (Office of the Public Defender, on
             brief), for appellee.



     In this appeal, taken pursuant to Code § 19.2-398, the

Commonwealth contends that the trial court erred when it

suppressed evidence based upon its finding (1) that the police

officers were not in hot pursuit of the defendant when they

followed him into a residence, and (2) that no exigent

circumstances necessitated the officers' entry into the

residence.    We agree and reverse the order of suppression.

     Talbert contends that the Commonwealth is barred from

raising on appeal the issue whether the evidence established

exigent circumstances necessitating the officers' entry into the

residence.    He argues that "the Commonwealth's petition for

appeal did not raise the issue of whether the officers' entry

into the residence was proper because it involved exigent

circumstances necessitating immediate action."      The record does
not support this contention.   The Commonwealth's petition stated

the question, "Was the evidence properly suppressed where the

officers were in hot pursuit or exigent circumstances were

present?"   This question clearly embraces the issue of exigent

circumstances.

     On the evening of March 16, 1996, Officer William Bunney,

along with other officers of the Alexandria Police Department,

was engaged in undercover surveillance.    At about 6:15 p.m.,

while it was still "light out," Bunney saw two men and a woman

walking north in the 800 block of North Alfred Street.    They

stopped at the southeast corner of Alfred and Montgomery Streets,

where they remained "for a period of time[,] looking around."

Then they walked away.
     About twenty minutes later, Talbert "came into the area from

the north," accompanied by several other people.    Talbert was in

a wheelchair.    The group stopped at the same southeast corner and

remained there, just "hanging out."     One of the two men who had

previously stopped at the corner returned, accompanied by the

same woman.   The woman spoke to Talbert, who then spoke to a man

standing behind him.   That man began pushing the wheelchair

north, followed by the man and woman and by two other men from

Talbert's group.   They all stopped at an alley on the east side

of the 900 block of North Alfred Street.    The two men from

Talbert's group "stayed at the mouth of the alley at the street."

Talbert, the man who was pushing the wheelchair, and the man and




                                - 2 -
woman, entered the alley, out of Bunney's view.

     Shortly thereafter, Talbert and the others returned from the

alley.   The man and woman stood directly beside Talbert, who had

his hands in front of him on his lap.    Bunney saw a "very large

rock of crack cocaine in a plastic bag" in Talbert's hand.

Talbert broke a piece from the large chunk and placed it in the

right hand of the man, who was standing beside him.     The man

looked at Talbert.    The woman began walking toward the mouth of

the alley and the man followed her with the piece of "rock" in

his hand.   He stopped momentarily, looked at "the rock" again,

and then left with the woman.   Talbert wrapped plastic around the

large rock and placed it on the right side of his body.
     Bunney radioed a description of the man and woman to the

other officers and continued to monitor and report their location

so that the officers could arrest them.   The officers approached

the man who had acquired the cocaine, but he put the rock in his

mouth and resisted.   That cocaine was not recovered.

     Looking again, Bunney did not see Talbert or his group at

the entrance to the alley or in the alley itself.   He radioed for

the officers in the street to "come into the area quickly,"

because he could no longer locate Talbert.   He gave a description

of Talbert and identified him by name.

     Bunney then saw a man backing Talbert's wheelchair into the

second house in the 900 block of North Alfred Street, "directly

adjacent off of the alley where the transaction had taken place."




                                - 3 -
The man was lifting the wheelchair up the porch steps and was

backing into the house.    Bunney did not know who owned the house.

He radioed the location to the officers in the street and

instructed them to arrest Talbert for distribution of cocaine.

He also told them that Talbert "had more dope on him . . . [a]

large rock. . . ."    He told the officers to hurry because Talbert

"was being wheeled into the unit."

        Officer Ballenger, who knew Talbert by name, and another

officer proceeded to the "second to the end house in the east

side alley of the 900 block."    Ballenger saw a man "with his back

to the door" and his hands out in front of him, "walking back

into the house itself."    The "exterior" door, which had glass

only for its upper half, was partially obstructing the officer's

view.    Ballenger could, however, see "wheels down below the

door."    It appeared to him that the man with his back to the

inside of the house was lifting a wheelchair into the house.

Ballenger recognized Talbert's face through the glass portion of

the exterior door.
        Ballenger, believing that he had probable cause to arrest

Talbert, got out of the van in which he and the other officer

were traveling and ran to the door.      The exterior door was still

"open about a foot" and the inside door was completely open.       He

saw Talbert in the living room, still in the wheelchair.

Ballenger announced "Police" in a loud voice, opened the exterior

door, and went inside.    Talbert had his right hand behind the man




                                 - 4 -
who was behind his wheelchair.    Ballenger saw something fall "in

the exact place where Mr. Talbert's hand was" located.    Ballenger

found a "very large rock of crack cocaine" where the object had

fallen.   He then arrested Talbert.

     Talbert moved the trial court to suppress as evidence the

rock of crack cocaine found by Ballenger on the ground that the

discovery was the product of an illegal search.   He argued that

Ballenger's entry into the house without a search warrant was

presumptively unreasonable and that the circumstances provided no

exception to the warrant requirement.    The Commonwealth argued

that Ballenger was in hot pursuit of Talbert and that exigent

circumstances required and justified his warrantless entry into

the house.
     The trial court held:
          [T]hat there is no evidence to indicate that
          the Defendant knew that the police had him
          under surveillance or that they were about to
          arrest him when they entered the home. The
          Court finds that this is not a hot pursuit
          case. The motion to suppress is granted.


The trial court further held, apparently in reference to Verez v.

Commonwealth, 230 Va. 405, 410-11, 337 S.E.2d 744, 753 (1985),

cert. denied, 479 U.S. 813 (1986):
          If you would look at those 10 points in that
          Virginia Supreme Court [case], I don't think
          the Commonwealth meets any one of the 10,
          maybe one of them, the fact that they had
          probable cause to believe that a crime had
          been committed. But other than that, other
          than number 7, I'm not sure that you have met
          any of the 10.




                                 - 5 -
     "[T]he 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 (1980).     However, exigent

circumstances may justify as reasonable a warrantless entry into

a dwelling for purposes of search or arrest.     Verez v.

Commonwealth, 230 Va. 405, 410, 337 S.E.2d 744, 752-53 (1985),

cert. denied, 479 U.S. 813 (1986).     One such exigent circumstance

is hot pursuit.
     We have found no case that specifically defines "hot

pursuit."   However, we think that the term is self-defining.    A

pursuit is "hot" if the circumstances are such that breaking off

or delaying the chase for the time required to obtain a warrant

is likely to involve significant danger to any person, loss of

evidence, or opportunity for the suspect to escape.

     Talbert contends that for a pursuit to be "hot," the suspect

must be in flight, knowing that he is being pursued.    He has

cited cases in which scenarios including that circumstance have

been held to constitute "hot pursuit."    However, he has

identified no case, nor have we found any, in which that

circumstance was held to be a requirement for "hot pursuit."     The

term "hot pursuit," as well as the other exigent circumstances

that have been held to justify warrantless intrusions, relates to

the circumstances governing the officer's conduct, to the

situation as reasonably perceived by the officer, and must be



                               - 6 -
assessed from the officer's perspective.   Elusive action by the

suspect will bear on this assessment, but the suspect's awareness

and perceptions are not, as such, determinative.

     In support of its argument that Ballenger entered the house

in hot pursuit of Talbert, the Commonwealth cites Warden v.

Hayden, 387 U.S. 294 (1967), and United States v. Santana, 427

U.S. 38 (1976).   In Hayden, the police were informed that a

suspect, wanted in connection with an armed robbery, had entered

a residence less than five minutes before.   Upholding a

warrantless entry by the police for the purpose of apprehending

the suspect, the Supreme Court said:
          [The police] acted reasonably when they
          entered the house and began to search for a
          man of the description they had been given
          and for weapons which he had used in the
          robbery or might use against them. The
          Fourth Amendment does not require police
          officers to delay in the course of an
          investigation if to do so would gravely
          endanger their lives or the lives of others.
           Speed here was essential, and only a
          thorough search of the house for persons and
          weapons could have insured that Hayden was
          the only man present and that the police had
          control of all weapons which could be used
          against them or to effect an escape.

Hayden, 387 U.S. at 298-99.

     Hayden did not specifically employ the term "hot pursuit."

Talbert argues that Hayden was not decided on the basis of "hot

pursuit," but rather on the exigent circumstances of the

seriousness of the crime and the dangerousness of the suspect.

However, the Supreme Court has cited Hayden as a "hot pursuit"




                               - 7 -
case.     See Welsh v. Wisconsin, 466 U.S. 740, 750 (1984).     See

also Lugar v. Commonwealth, 214 Va. 609, 629, 202 S.E.2d 894, 909

(1974).    Although Hayden was unaware that he was being pursued,

the urgency of the timing and of the circumstances confronting

the police constituted their entry into the house a "hot

pursuit."

        In Santana, the police made a controlled heroin purchase.

They returned to arrest the seller.       The suspect was standing in

the doorway of her house.     When the police approached and

announced themselves, the suspect attempted to flee into the

house and was caught in the vestibule.      The Supreme Court held

that the warrantless entry by the police into the vestibule of

the house was a true "hot pursuit."       Santana, 427 U.S. at 42-43.

The Supreme Court noted that as the police approached, the

suspect was standing outside of the house, amenable to

warrantless arrest.     It held that she could not defeat the

ability of the police to affect the arrest by flight into the

house.     Id. at 42.   See also United States v. Sewell, 942 F.2d

1209 (7th Cir. 1991); United States v. Fleming, 677 F.2d 602 (7th

Cir. 1982).

        In Verez v. Commonwealth, 230 Va. 405, 337 S.E.2d 744

(1985), cert. denied, 479 U.S. 813 (1986), the police, using

undercover informants, arranged for a large cocaine purchase to

be made in a motel in Hanover County.      The target of the

investigation was a drug dealer who had another man with him and




                                  - 8 -
who was known to be armed and elusive.      Until the police received

a predetermined signal from one of the informants, they did not

know the exact location of the transaction and did not have

specific information that the drugs were, in fact, on the

premises.   Upon receiving the prearranged signal, the police

burst into the room, arrested Verez, and seized a large amount of

cocaine.    Upholding the warrantless entry into the motel room,

the Supreme Court said:
          Exigent circumstances . . . may justify as
          reasonable a warrantless entry into a
          dwelling, a search of the interior, a seizure
          of contraband, and an arrest of those found
          in possession of it. Such warrantless
          entries into dwellings, followed by searches,
          seizures, and arrests therein, however, are
          presumed to be unreasonable, in Fourth
          Amendment terms, casting upon the police a
          heavy burden of proving justification by
          exigent circumstances.


Id. at 410, 337 S.E.2d at 752-53.       Noting that no court had

attempted to formulate a final and comprehensive list of all

exigent circumstances which might justify warrantless entry, the

Supreme Court enumerated as "some of those considered relevant,"

ten categories of circumstance, including "hot pursuit."       Id. at

410-11, 337 S.E.2d at 753.   The Court did not represent this list

to be complete or exclusive.   The Court did not state that more

than one such circumstance was required.

     This case is controlled by Hayden, Santana and Verez.         We

hold that Ballenger entered the house in "hot pursuit" of

Talbert.    Just a few minutes before, Bunney had seen Talbert sell



                                - 9 -
a piece of cocaine to the man and woman whom he had met on the

street.   Bunney had seen Talbert secrete the large remaining

block of crack cocaine next to his person in the wheelchair.

While the officers elected first to apprehend the purchasers,

they moved immediately, and without delay, to locate and

apprehend Talbert.    Bunney spotted Talbert first and ordered

Ballenger to hurry.   Ballenger came on the scene hastily and saw

Talbert not yet in the house.    He immediately pursued him and

Talbert entered the house as Ballenger approached.   The outer

door did not close completely and the inner door remained open.

Without interrupting the chase, Ballenger entered the house

immediately, through the still open door, apprehended Talbert and

secured the piece of cocaine.    Had Ballenger failed to do so,

Talbert might have learned that the police were on his trail.     He

might have eluded apprehension and might have disposed of the

large piece of crack cocaine.
     In addition to the circumstances of "hot pursuit," general

exigent circumstances controlled Ballenger's conduct.   A police

officer had observed Talbert commit a crime and had observed him

place material and easily disposable evidence of that crime on

his person.   Talbert was seen entering a house, the ownership and

occupancy of which was at that time unknown.   The officers did

not know how long Talbert would remain in the house or what he

would do while there.   The officers had good cause to believe

that their apprehension of the purchasers would become known.




                                - 10 -
The large rock of cocaine, known to be on Talbert's person, was

easily disposable, by sale, consumption, or destruction.    The

officers had good cause to suspect that Talbert and the people

with him were armed and dangerous.     See Peguese v. Commonwealth,

19 Va. App. 349, 353, 451 S.E.2d 412, 414 (1994) (en banc).

     The exigent circumstances described by the testimony, and

specifically the circumstance of hot pursuit, justified Officer

Ballenger's warrantless entry into the house, his apprehension of

Talbert, and his seizure of the rock of crack cocaine.    The trial

court erred in ordering the crack cocaine to be suppressed as

evidence.
     The judgment of the trial court is reversed, and this case

is remanded for further proceedings.

                                           Reversed and remanded.




                             - 11 -
