                        COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bumgardner and Clements
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                           MEMORANDUM OPINION * BY
v.   Record No. 0156-02-2              JUDGE RUDOLPH BUMGARDNER, III
                                                JUNE 4, 2002
JAWESCAMEL LAJUAN TERRY

COMMONWEALTH OF VIRGINIA

v.   Record No. 0353-02-2

STEPHEN ANTOINE TERRY


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                    William R. Shelton, Judge

          Susan M. Harris, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          briefs), for appellant.

          (Sharon A. Fitzgerald; Eck, Collins &
          Marstiller, on brief), for appellee
          Jawescamel Lajuan Terry.

          William P. Irwin, V (Bowen, Bryant,
          Champlin & Carr, on brief), for appellee
          Stephen Antoine Terry.


     The Commonwealth appeals the suppression of evidence seized

as proof Jawsecamel Lajuan Terry and Stephen Antoine Terry

robbed and used a firearm in the commission of robbery.    The

police found the cash, skullcap, cell phone, and pellet gun in

the bedroom of the defendants' residence.    The trial court


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
concluded the police conducted an illegal search and granted the

motion to suppress.   We conclude the actions of the police while

in the residence did not constitute a search and reverse the

decision to suppress the evidence.

     The victim reported he had been robbed in front of 4700

Mason Woods Court shortly after delivering pizza there.   He

described the robber as "a black male, approximately 20 years of

age, wearing a white T-shirt, black pants or jeans, [and he]

displayed a handgun."   The robber took $36 cash and a cell

phone, which played a distinctive jingle when dialed.

     Officer Zoffuto went to the residence with the victim.    He

received permission to enter the residence and inquire about the

robbery.   The officer observed four men in the house including

both defendants.    The officer stayed in the foyer, living room,

and kitchen areas where the four men ate pizza while talking

with the officer.   The officer noted defendant Jawsecamel Terry

and his clothing fit the description of the robber.

     The officer stepped outside and spoke with two other

officers who informed him that a police dog had tracked the

robber to the back door of the residence.   Officer Zoffuto got

his cell phone and returned to the residence.   From the kitchen,

he used his cell phone to dial the victim's cell phone number.

The distinctive ring of the victim's phone sounded from an

interior room.   The officer ordered the four men to the floor as

he went toward the sound.   He opened the door to a bedroom and

                                - 2 -
saw the cell phone, cash, and a skullcap on the bed.      He did not

seize the items but left and obtained a search warrant.         While

executing the warrant, the officers found the pellet gun.

     The trial court ruled, "the use of the telephone to locate

contraband was an illegal search."       We conclude that the officer

did not conduct a search when he dialed the victim's phone

number on his own cell phone.    "[T]he appellate court is

required to give deference to the factual findings of the trial

court and to determine independently whether, under the law, the

manner in which the evidence was obtained satisfies

constitutional requirements."     McCain v. Commonwealth, 261 Va.

483, 490, 545 S.E.2d 541, 545 (2001) (citations omitted).

     The officer was lawfully inside the residence.       The

occupants consented to his coming inside to ask questions while

they ate their pizza.   The officer never went beyond the area at

the front of the residence where he had permission to be.        When

the officer dialed his phone from the kitchen, he did not

violate any expectation of privacy recognized in Katz v. United

States, 389 U.S. 347 (1967).     It was reasonable conduct by the

officer while in the kitchen with consent.

     Dialing the number while in the kitchen was related to the

original purpose of his entry.    It did not constitute an

additional invasion of the defendants' privacy interests such as

found in Arizona v. Hicks, 480 U.S. 321, 324-25 (1987).         The act

of dialing a cell phone did not constitute the type of conduct

                                 - 3 -
proscribed in Kyllo v. United States, 533 U.S. 27 (2001).      When

dialing his cell phone, the officer did not use sense enhancing

technology not in "general public use" to obtain information

from within a home.

     When the victim's cell phone responded to being dialed, the

officer was permitted to use his sense of hearing under the

plain view doctrine of Coolidge v. New Hampshire, 403 U.S. 443,

465 (1971).   The officer was lawfully in a place to hear the

sound, and it was immediately apparent that the distinctive

sound came from the stolen telephone, contraband subject to

seizure.

     The moment the officer heard the distinctive ring, he had

probable cause to believe the robber, who had been armed with a

gun, was in the house.   The stolen property was in the house, a

dog had tracked the robber to the house, and Jawsecamel Terry

fit the description of the robber.      The officer was lawfully

present and had reasonable belief based on specific and

articulable facts that someone with a gun was in the interior of

the house.    The officer was permitted to conduct a protective

sweep of the area posing the danger.      Maryland v. Buie, 494 U.S.

325, 333 (1990).   "The sweep lasts no longer than is necessary

to dispel the reasonable suspicion of danger."      Id. at 336.

     Based on the facts known at the moment the officer heard

the cell phone ring, he was justified in conducting a protective

sweep to determine whether someone else was in the house.     Upon

                                - 4 -
opening the door of the bedroom, he saw the ringing cell phone,

the cash, and a skullcap in plain view.   When he determined no

one was in the room, he did not seize the evidence but returned

to the kitchen, secured the premises, and went to the magistrate

to secure a search warrant.   His actions were within the scope

permitted under Buie.

     We conclude the officer did not seize the evidence during

an illegal search.   Accordingly, we reverse the decision to

suppress their use as evidence.

                                          Reversed and remanded.




                               - 5 -
