                       COURT OF APPEALS OF VIRGINIA


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


COMMONWEALTH OF VIRGINIA
                                            MEMORANDUM OPINION * BY
v.   Record No. 1761-02-1                 JUDGE ROBERT J. HUMPHREYS
                                               DECEMBER 23, 2002
KEVIN FULLER PURNELL


          FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                   Wilford, Taylor, Jr., Judge

          Eugene Murphy, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellant.

          Ronald L. Smith for appellee.


     The Commonwealth of Virginia appeals a decision of the trial

court granting Kevin Fuller Purnell's motion to suppress evidence

pertaining to his indictment for possession of more than one-half

ounce, but less than five pounds, of marijuana, in violation of

Code § 18.2-248.1.   The Commonwealth contends the trial court

erred in finding that the police officers' entry into Purnell's

residence was unreasonable and amounted to a violation of his

Fourth Amendment rights.    For the reasons that follow, we reverse

the decision of the trial court.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
       In reviewing the ruling of a trial court on a motion to

suppress, we will "consider the evidence in the light most

favorable to the prevailing party below."      Commonwealth v. Rice,

28 Va. App. 374, 377, 504 S.E.2d 877, 878 (1998).

       At approximately 7:46 a.m., on October 26, 2001, Police

Sergeant Roger Clements heard a radio dispatch advising that "a

resident or a neighbor" had contacted the police department

"indicating that [police] would possibly need to check on the

welfare of the person who lived at [1220 West Queen Street]." 1

Clements knew "approximately who [the caller] was from some

previous dealings," but did not "know anything about [her]

background."      Police tried to contact the caller to obtain

additional information, but "she didn't want to talk to anybody."

       Officer Steve Nemetz was the first to arrive on the scene.

Officer Nemetz remained outside the residence from about

7:50 a.m. until approximately 8:45 a.m.      At that time, Nemetz's

shift ended and Officers Patterson and Cook arrived to relieve

him.       Sergeant Clements, who was the supervisor of patrol that

morning, arrived at approximately 9:00 a.m., but left for a few

moments to "check[] on some other supervisory things."      He

returned at about 9:30 a.m.




       1
       Prior to this incident, Sergeant Clements had been
assigned to "vice narcotics for the better part of five years."
He had left that department less than one week before October
26, 2001.

                                   - 2 -
     During the time from 7:50 a.m. to 9:30 a.m., the officers

walked around the residence and "beat on the door[s]," but

received no response.   They found that the doors to the residence

were locked, and high bushes surrounding the residence made it

impossible for them to "see anything" inside the house.   However,

they observed that the living room window was "open[] just enough

to hear some[]" sound coming from either a "radio or television"

inside the residence.

     The officers also observed that the door to the detached

garage was partially open.   A car was parked in the driveway, with

the passenger door ajar.   The officers saw that there was

"expensive electronic equipment inside."   Sergeant Clements

testified "[t]hat looked odd that somebody would just leave a car

door open and leave that available for somebody, and it certainly

wasn't in the process of being stolen."    Officers ran a check of

the license plate number and found that the car was registered to

someone named "Bowditch from Newport News."

     At the same time, officers learned that the residence was

rented to Purnell.    They then had "headquarters" try to contact

Purnell by calling the phone number to the residence, as well as

his cellular phone.   The officers received no answer from either

telephone.

     Ultimately, officers contacted the rental property manager

and obtained a key to the residence.    Officer Clements testified

that the officers had no information of criminal activity and that

                                - 3 -
they were not investigating criminal activity.   However, based on

the "totality of all of the circumstances," they decided to enter

the residence to "check on [Purnell's] welfare."   Officer Clements

stated that they thought Purnell might have been "ill" or "dead."

Nevertheless, they did not call for medical assistance prior to

entering the house, because emergency personnel were "just several

blocks down the street" and could have "respond[ed] . . . within

seconds."

     Officers Patterson and Cook first entered the residence

between 9:00 a.m. and 9:30 a.m.   As they were walking out of the

residence, at approximately 9:30 a.m., Sergeant Clements returned.

They told him that they had not found Purnell, but had "found some

other things."   They also told him that they had not looked

upstairs for Purnell, nor had they looked underneath the beds, or

under any piles of clutter or clothing to determine if Purnell's

body was obscured from view.   The officers then re-entered the

residence.   That search lasted approximately five to ten minutes.

They did not find Purnell, and found no evidence that anyone had

been injured in the home.   However, Sergeant Clements observed a

"gallon size container of what looked to be" "dried" and

"compressed" marijuana in the kitchen.   In the spare bedroom he

found what appeared to be "marijuana growing."

     "[A]s soon as [the officers] found that there [were] no

bodies or anybody else inside of [the] residence for checking on

the welfare," they left the residence and "froze the house so that

                               - 4 -
nobody could enter."   Sergeant Clements then called the Special

Investigations Unit, which obtained a search warrant for the

residence and seized the marijuana.

     Purnell was subsequently indicted for possession, with intent

to distribute, more than one-half ounce, but less than five pounds

of marijuana, in violation of Code § 18.2-248.1.   Prior to trial,

Purnell filed a motion to suppress the evidence contending that

the officers' entry into his home violated his "constitutional

rights."

     After a hearing on the motion, the trial court held:

           I'm going to sustain the motion to
           suppress . . . . There are two problems
           with the case, and I certainly don't believe
           this was pretest [sic]. I believe that the
           officers involved were doing what they
           thought was the right thing.

           The problem with the case is when Officer
           Nemetz went up and couldn't see anything and
           went all around the house, I don't think
           they were justified under the [F]ourth
           [A]mendment to go any further than that.

           I also have some concern about the extent of
           the emergency based on what was reported.
           And, again, not having any other witness to
           give anymore information to the officers, I
           guess whoever made the call, that in my view
           supports the motion to suppress.

     On appeal, the Commonwealth contends the trial court erred in

finding the officers violated the Fourth Amendment when they

entered Purnell's residence without a search warrant.   We agree.




                               - 5 -
     In reviewing a trial court's ruling on a motion to suppress

          [t]his Court is "bound by the trial court's
          findings of historical fact unless 'plainly
          wrong' or without evidence to support them
          and we give due weight to the inferences
          drawn from those facts by resident judges
          and local law enforcement officers."
          However, whether a defendant is seized in
          violation of the Fourth Amendment is a
          question that is reviewed de novo on appeal.

Davis v. Commonwealth, 37 Va. App. 421, 429, 559 S.E.2d 374, 378

(2002) (quoting Neal v. Commonwealth, 27 Va. App. 233, 237, 498

S.E.2d 422, 424 (1998)).   Furthermore, the burden is upon the

Commonwealth to show, considering the evidence in a light most

favorable to Purnell, granting to him all inferences fairly

deducible therefrom, that the denial constituted reversible error.

Reynolds v. Commonwealth, 9 Va. App. 430, 436, 388 S.E.2d 659, 662

(1990).

          It is axiomatic that the "physical entry of
          the home is the chief evil against which the
          wording of the Fourth Amendment is
          directed." United States v. United States
          District Court, 407 U.S. 297, 313 (1972).
          And a principal protection against
          unnecessary intrusions into private
          dwellings is the warrant requirement imposed
          by the Fourth Amendment on agents of the
          government who seek to enter the home for
          purposes of search or arrest. See Johnson
          v. United States, 333 U.S. 10, 13-14 (1948).
          It is not surprising, therefore, that the
          [United States Supreme] Court has
          recognized, as "a 'basic principle of Fourth
          Amendment law[,]' that searches and seizures
          inside a home without a warrant are
          presumptively unreasonable." [Payton v. New
          York, 445 U.S. 573, 586 (1980)].



                               - 6 -
Welsh v. Wisconsin, 466 U.S. 740, 748-49 (1984).     However, in

considering whether to exclude evidence based upon this rule, we

are constantly reminded that the Fourth Amendment does not

forbid all searches and seizures, only those that are

unreasonable.   See Elkins v. United States, 364 U.S. 206, 222

(1960); Verez v. Commonwealth, 230 Va. 405, 410, 337 S.E.2d 749,

752 (1985).   Thus, the United States Supreme Court has carved

out a few delineated exceptions to the warrant requirement.

United States District Court, 407 U.S. at 318.     One such

exception is known as the "emergency doctrine."     See Reynolds, 9

Va. App. at 436-37, 388 S.E.2d at 663-64; see also Mincey v.

Arizona, 437 U.S. 385 (1978).

     The "emergency doctrine" is grounded in the consideration

that "the duty of the police extends beyond the detection and

prevention of crime, to embrace also an obligation to maintain

order and to render needed assistance."    Barrett v. Commonwealth,

18 Va. App. 773, 777, 447 S.E.2d 243, 245 (1994), rev'd on other

grounds by, 250 Va. 243, 462 S.E.2d 109 (1995).    The exception is

expressed in terms of a "reasonably perceived 'emergency'

requiring immediate entry as an incident to the service and

protective functions of the police as opposed to, or as a

complement to, their law enforcement functions."    United States v.

Moss, 963 F.2d 673, 678 (4th Cir. 1992).   Accordingly, courts "'do

not question the right of the police to respond to emergency

situations.   [Indeed,] [n]umerous state and federal [courts] have

                                - 7 -
recognized that the Fourth Amendment does not bar police officers

from making warrantless entries and searches when they reasonably

believe that a person within is in need of immediate aid.'"

Reynolds, 9 Va. App. at 436-37, 388 S.E.2d at 663 (quoting Mincey,

437 U.S. at 392).

     In order to justify an intrusion under the "emergency

doctrine," a "'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.'"

Id. (quoting State v. Resler, 306 N.W.2d 918, 922 (Neb. 1981)).

Thus, to determine whether such an intrusion was properly

warranted, the facts will be "'judged against an objective

standard.'"   Id. (quoting Resler, 306 N.W.2d at 922).

     Here, a citizen contacted police and told them that they

should check on the "welfare" of the occupant of the residence at

issue.   Officers called the citizen back and tried to obtain

additional information, but were unable to do so because the

citizen refused to speak with them further.

     The officers then responded immediately to the scene.      Over

the course of the next approximately two hours, they canvassed the

outside of the house, knocked on the door, and after determining

the identity of the resident as Purnell, tried to contact Purnell

by his home phone and his cellular phone.   All of their attempts

were to no avail.



                               - 8 -
     During this time, officers observed 1) that the doors to the

residence were locked; 2) that the television and/or a radio was

on inside the home; 3) that a car, not belonging to Purnell, was

in the driveway of the residence with the door ajar; 4) that the

open car was filled with "expensive electronic equipment"; and, 5)

that the garage door was partially open.   Based upon the

"totality" of this information, the officers decided to enter the

home in order to determine whether Purnell was inside and in need

of emergency assistance.   Accordingly, the officers contacted the

property manager and requested a key to enter the residence.   Once

the property manager arrived at the scene with the key, they were

able to enter.

     Considering the totality of these circumstances, and most

importantly, the trial court's factual finding that the actions of

the officers here were not pretextual, we find that the officers'

warrantless entry into the residence was constitutionally

permissible pursuant to the emergency exception to the warrant

requirement.   The information received by the officers reasonably

led them to believe that Purnell's "welfare" was at risk and that

he was thus, in need of assistance.    Their thorough investigation

of the situation, including their inability after several attempts

to obtain a response from Purnell and/or any occupant of the

residence, reinforced this conclusion.

     Furthermore, the fact that it was later determined that no

emergency assistance was required is of no moment, because at the

                               - 9 -
time the officers entered Purnell's residence, the circumstances

reasonably warranted their belief that the occupant was in need of

immediate assistance.   See State v. Hedley, 593 A.2d 576, 582-83

(Del. Sup. 1990) (holding the fact that no emergency existed in

actuality did not affect the emergency exception analysis); see

also Reynolds, 9 Va. App. at 437, 388 S.E.2d at 664 ("Police

officers are not required to possess either the gift of prophecy

or the infallible wisdom that comes with hindsight.   Their conduct

in making a warrantless search must be judged by the circumstances

confronting the officers at the time they act.").

     Likewise, contrary to Purnell's contention, nothing in the

speed or character of the officers' conduct belied their stated

belief that an emergency existed.   In fact, the evidence

demonstrated that the officers took this matter seriously from the

first instance.   During the approximate two hour period before

they entered the home, the officers were consistently and busily

attempting to investigate the matter further and determine a

resolution to the problem.   Neither the lapse of time, nor the

investigation dissipated the potential urgency of the situation.

See State v. Monroe, 611 P.2d 1036, 1039-40 (Idaho 1980), vacated

on other grounds, 451 U.S. 1014 (1981), on remand, 645 P.2d 363

(1982) (holding that officers' one hour delay in entering

residence was not critical under the emergency doctrine analysis

where evidence demonstrated emergency still existed).   Instead,

these factors further justified the officers' belief, at the time

                               - 10 -
they entered the residence, that an individual inside was in need

of emergency assistance.   See United States v. Jones, 635 F.2d

1357, 1362 (8th Cir. 1980) ("When the police have a reasonable

suspicion that someone is injured or that the public safety is in

jeopardy, but refrain from taking immediate action in an effort to

confirm or deny the suspicion, and then act once they have

received no indication that the danger has been dissipated, the

waiting period does not defeat the applicable exception to the

warrant rule."); see also People v. Brooks, 289 N.E.2d 207 (Ill.

App. 1972) (refusing to suppress evidence pursuant to the

emergency doctrine, noting that "the very uncertainty created by

the totality of all [the] circumstances" can provide a

justification for police to take immediate action).   These factors

also established that the officers did not act precipitously, but

acted with reasonable deliberation under the circumstances, by

investigating the information they had received, and by making

careful preparation for the least possible intrusive entry into

the residence.    See Reynolds, 9 Va. App. at 438, 388 S.E.2d at 664

(quoting State v. Fisher, 686 P.2d 750, 761 (Ariz. 1984))

("'Police officers must not be doubted because they exercise

caution and take the time to evaluate the need for a warrantless

entry.   Were we to hold otherwise, we would encourage precipitous

and hasty entries and discourage pre-entry investigation and

reflection.'").



                                - 11 -
     Because we find that the officers' entry into Purnell's

residence was constitutionally permissible pursuant to the

emergency exception to the warrant requirement, we reverse the

ruling of the trial court.   See Mincey, 437 U.S. at 393

(recognizing that where a warrantless entry is proper under the

emergency exception, the police may seize evidence that is in

plain view).

                                                           Reversed.




                               - 12 -
     Elder, J., dissenting.

     I would assume without deciding that Virginia law permits

law enforcement personnel to enter a private residence without a

warrant under an emergency aid doctrine and would conclude the

evidence is insufficient to establish the need for an

"immediate" entry to render aid to someone inside.   Therefore, I

respectfully dissent.

     I am aware of no controlling legal authority approving the

warrantless entry of a private residence by law enforcement

personnel in a community caretaking or emergency aid context

under circumstances totally divorced from the detection of

crime.   Cf. Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct.

2408, 2413, 57 L.Ed.2d 290 (1970) (applying emergency aid

doctrine to allow police entry of home after notification by

resident of possible crime therein); Wood v. Commonwealth, 27

Va. App. 21, 27-28, 497 S.E.2d 484, 487 (1998) (en banc)

(plurality op.) (noting neither United States Supreme Court nor

any Virginia appellate court has applied the community caretaker

doctrine to uphold entry of a private residence); Reynolds v.

Commonwealth, 9 Va. App. 430, 435-39, 388 S.E.2d 659, 662-64

(1990) (applying emergency doctrine as type of exigent

circumstance permitting entry of residence in course of

investigating burglary and confirming safety of residents where

police had already apprehended burglar who admitted prior entry

into residence).   Because I conclude the evidence here was

                              - 13 -
insufficient to support such an entry, I merely assume without

deciding that circumstances could exist under which such an

entry would be reasonable in a Fourth Amendment context.

     As the majority acknowledges, "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, 748-49 (1984) (quoting United States v.

United States District Court, 407 U.S. 297, 313 (1972)).

Accordingly, in the criminal context, it is well established

that the warrantless, nonconsensual entry of a private residence

requires proof of both probable cause and exigent circumstances,

which include the need "to prevent imminent removal or

destruction of evidence, to arrest fleeing criminal suspects, or

to avoid imminent threats of death or bodily harm."     United

States v. Moss, 963 F.2d 673, 678 (4th Cir. 1992).

     Jurisdictions which permit entry of a private residence

under an emergency aid doctrine require proof of a similar

exigency to justify the entrance.   See id.; State v. Davis, 497

N.W.2d 910, 921 (Mich. 1993) ("not[ing] that the levels of

intrusion the police make while [inventorying a car and entering

a dwelling] are different" and that, although these activities

"may both be categorized as 'caretaking functions,' it does not

follow that both types of activities should be judged by the

same standard"); see also, e.g., 3 Wayne R. LaFave, Search and

Seizure § 6.6(a) (3d ed. 1996 & 2003 Supp.).     "To invoke this

                             - 14 -
so-called 'emergency doctrine,' the person making the entry must

have had an objectively reasonable belief that an emergency

existed that required immediate entry to render assistance or to

prevent harm to persons . . . within."   Moss, 963 F.2d at 678

(emphasis added); see State v. Nemeth, 23 P.3d 936, 944 (2001)

(in case involving suicide threat, holding entry permitted to

render "immediate aid" or "assistance or protection from serious

harm" (emphases added)); see also Reynolds, 9 Va. App. at

436-37, 388 S.E.2d at 663-64 (to permit warrantless entry under

emergency doctrine in course of investigating burglary,

requiring "'reasonabl[e] belie[f] that a person within is in

need of immediate aid'" (quoting State v. Resler, 306 N.W.2d

918, 922 (Neb. 1981) (quoting Mincey, 437 U.S. at 392, 98 S. Ct.

at 2413)) (emphasis added)).   See generally, LaFave, supra,

§ 6.6(a), at 391-93.

     Here, although the evidence supported the trial court's

finding that Sergeant Clements' decision to enter defendant's

residence was not pretextual, I would hold it also compels the

conclusion that neither Sergeant Clements nor the officers he

supervised could have held "an objectively reasonable belief

that an emergency existed that required immediate entry to

render assistance or to prevent harm to persons . . . within."

See Moss, 963 F.2d at 678 (emphasis added).

     The evidence in the record establishes only that the

officers responded to defendant's residence based on a telephone

                               - 15 -
call indicating the officers "possibly would need to check on

[defendant's] welfare" because defendant "couldn't be reached by

home phone or cell phone."   The caller did not indicate for how

long she had been unable to reach defendant by phone, and she

set out no other basis for her concern.   When the police tried

to contact her to obtain further information, she refused to

speak with them.   When the officers arrived at defendant's home,

they noticed the door to the detached garage was open but gave

no indication that anything inside the garage appeared amiss.

They also noticed the door to a car parked in the driveway was

partially open and that expensive electronic equipment was

visible inside.    At some point they obtained information that

defendant was "some type of a D.J. or had something to do with

music."   Although the car was registered to someone other than

appellant, Sergeant Clements observed merely that the open car

door "looked odd" and said "[the electronic equipment] certainly

wasn't [in the process of] being stolen."

     Although the garage and car doors were open, the residence

itself was locked, and the officers received no response to

their repeated knocks and telephone calls.   The officers were

unable to see inside the house due to the presence of thick

bushes in front of the windows, and they gained no additional

information, while present at the house for a period of less

than two hours, which tended to indicate that anyone inside the

residence needed immediate assistance or was at risk of serious

                               - 16 -
harm.    The officers heard an unidentified noise, later

determined to be a television, emanating from an open window in

the home's living room, but they did not describe the noise as

including raised voices, screams, moans or any other sounds

indicative of distress.

        I would hold this information was insufficient to provide

the police with a reasonable belief that the warrantless entry

of defendant's residence was necessary to render "immediate aid"

or "protect[] [defendant or another] from serious harm."     Id.

(emphases added); see State v. Carlson, 548 N.W.2d 138, 142-43

(Iowa 1996); Nemeth, 23 P.2d at 941-45 (upholding warrantless

entry where police received report that defendant threatened

suicide during course of argument with boyfriend and when police

arrived at defendant's house, she appeared "very distraught and

emotional" and said "nobody cared about her"); Duquette v.

Godbout, 471 A.2d 1359, 1361-63 (R.I. 1984) (upholding

warrantless entry of apartment where police encountered woman

screaming and banging on door and woman said she believed her

sixteen-year-old daughter was inside and that she had heard

screaming in the building); see also LaFave, supra, at 396 &

n.30 (noting that entry to render aid may be permissible "to

seek an occupant reliably reported as missing" and citing cases

involving persons missing "for some time" although they were

ordinarily seen or heard from frequently).



                                - 17 -
     For these reasons, I would affirm the trial court's

decision to grant defendant's motion to suppress, and I

respectfully dissent.




                             - 18 -
