                                COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Haley and Petty
Argued at Salem, Virginia


CHRISTOPHER SHAWN ROBERTSON
                                                                       OPINION BY
v.     Record No. 1170-06-3                                     JUDGE JAMES W. HALEY, JR.
                                                                       JUNE 5, 2007
COMMONWEALTH OF VIRGINIA AND
 CITY OF DANVILLE


                 FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                               David A. Melesco, Judge

               Joe Garrett (Garrett & Garrett, P.C., on brief), for appellant.

               Susan M. Harris, Assistant Attorney General (Robert F. McDonnell,
               Attorney General, on brief), for appellees.


       Christopher Shawn Robertson (appellant) was convicted by the trial court of possessing a

firearm after having been declared delinquent while over the age of 14 for a crime that would have

been a felony if committed as an adult, in violation of Code § 18.2-308.2, and of discharging a

firearm within city limits, in violation of Danville Code § 40.3. Appellant maintains a shotgun and

spent shells admitted into evidence were the result of a search in violation of his Fourth Amendment

rights. We agree and reverse.

                                               FACTS

       On August 25, 2005, at approximately 1:00 a.m., Officer Ernest Thompson (Officer

Thompson) was dispatched to 136 West Thomas Street in Danville, in response to a 911 call. Upon

arriving at the residence, Officer Thompson interviewed appellant’s girlfriend, Tiffany Cobbs

(Tiffany). Tiffany told Officer Thompson that a few hours earlier, on the afternoon of August 24,

she and appellant visited his grandfather’s house. According to Tiffany, appellant consumed at least
one fifth of whiskey while at his grandfather’s house. Appellant and Tiffany then had a friend drive

them home to 136 West Thomas Street, where they lived together. There the couple argued over

the cause of death of their son, born in December 2004, who died in January 2005.

       Appellant became emotional and told Tiffany that he was going to kill himself. Tiffany

stepped outside the house and called 911. While she was speaking to the operator, Tiffany

testified that she heard two gunshots. Tiffany remained outside the home. When the police

arrived Tiffany told Officer Thompson that appellant was alone inside the house. Several

members of the Danville Police Department surrounded the residence in an extended

confrontation with appellant.

       A thirty-five minute video of that confrontation was admitted into evidence. The tape

shows appellant, visibly intoxicated and emotional, cursing at the officers from an open front

window, breaking glass panes from the window, and repeatedly denying he had killed his son.

He claimed to have a shotgun in the house, but no shots were fired while the police were present.

Ultimately, while appellant was sitting in the front window, police struck appellant with a taser

gun. He fell to the ground where he was arrested.

       Police attempted to enter the house through the front door, which was locked. Appellant

told them, as had Tiffany, “Ain’t nobody else in the house.” Unable to obtain a key from either

Tiffany or appellant, police broke down the front door and entered the dwelling. Neither Tiffany

nor appellant was asked permission to enter the house, nor did they extend permission to police.

The search of the home resulted in the seizure of a shotgun and spent shells, which were the

subject of a motion to suppress.

       During that motion, Officer Thompson confirmed for the court that “the SWAT team,

they were on the scene, they did go inside to secure the house.” On cross-examination, the

following exchange occurred:

                                                -2-
               Q. Why do they need to secure the house if the front door is
               already locked and closed? He came through the window . . . he’s
               not in the house . . . .

               A. You’ll have to ask them. . . . Typically, a procedure would be,
               even though there’s one person in the house, we don’t know if
               there’s anybody else in the house and we’re securing the house.

               Q. You’d been talking to [Tiffany] and she told y’all there was
               nobody else in the house?

               A. It’s still part of the procedures we do.

No police officer testified that they had any belief or suspicion that anyone remained in the house

following appellant’s arrest.

       After hearing the testimony of Officer Thompson, the trial court ruled, “It’s a crime scene

. . . they have a right to go into a crime scene.” Appellant’s counsel urged the court to

reconsider, explaining that the officers “had no basis for entering the house” without a warrant.

The trial judge defended his ruling, stating, “They had every reason in the world. They had . . .

reports of shots fired. He admitted he fired shots. I mean, I can’t think of a clearer example

where the police had an absolute right to go . . . they’d be derelict if they didn’t.”

                                             ANALYSIS

       On appeal, we review the evidence in the light most favorable to the Commonwealth, the

prevailing party below. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987). Appellant bears the burden to show that the denial of his motion to suppress constituted

reversible error. Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied,

449 U.S. 1017 (1980). This Court is bound by the trial court’s findings of fact, unless plainly

wrong or without evidence to support them. McGee v. Commonwealth, 25 Va. App. 193, 198,

487 S.E.2d 259, 261 (1997) (en banc). However, whether those facts implicate the Fourth

Amendment is a question that requires de novo review. Id.



                                                 -3-
       The Fourth Amendment of the United States Constitution ensures, “[t]he right of the

people to be secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures . . . .” U.S. Const. amend. IV. “The Fourth Amendment is not, of course, a

guarantee against all searches and seizures, but only against unreasonable searches and

seizures.” United States v. Sharpe, 470 U.S. 675, 682 (1985) (emphasis in original). See also

Williams v. Commonwealth, 49 Va. App. 439, 447, 642 S.E.2d 295, 298-99 (2007).

       In Kyllo v. United States, 533 U.S. 27, 31 (2001), the United States Supreme Court

explained, “At the very core of the Fourth Amendment stands the right of a man to retreat into

his own home and there be free from unreasonable government intrusion.” It is a

well-established principle, therefore, “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) (quoting United States v. United States Dist. Court, 407 U.S. 297, 313

(1972)). See also Kyer v. Commonwealth, 45 Va. App. 473, 480, 612 S.E.2d 213, 217 (2005).

Accordingly, seizures of personal property from a private dwelling are generally considered

“unreasonable within the meaning of the Fourth Amendment unless . . . accomplished pursuant

to a judicial warrant . . . .” United States v. Place, 462 U.S. 696, 701 (1983).

       There are, however, exceptions to the general rule prohibiting warrantless searches. In

Illinois v. McArthur, 531 U.S. 326, 330-31 (2001), for example, the Supreme Court explained:

               When faced with special law enforcement needs, diminished
               expectations of privacy, minimal intrusions, or the like, the Court
               has found that certain general, or individual, circumstances may
               render a warrantless search or seizure reasonable. . . .
               Consequently, rather than employing a per se rule of
               unreasonableness, we balance the privacy-related and law
               enforcement-related concerns to determine if the intrusion was
               reasonable.

Consequently, where exigent circumstances justify a warrantless search of a private dwelling, an

otherwise unlawful entry may be permitted. Welsh, 466 U.S. at 749-51. See also Vance v.
                                                -4-
North Carolina, 432 F.2d 984 (4th Cir. 1970); Verez v. Comonwealth, 230 Va. 405, 337 S.E.2d

749 (1985).

       For example, the Supreme Court has held that, under certain narrow circumstances,

police may conduct a “protective sweep” of a private dwelling without a warrant. Maryland v.

Buie, 494 U.S. 325 (1990). In Buie, the Court defined a “protective sweep” as “a quick and

limited search of the premises, incident to an arrest and conducted to protect the safety of police

officers or others.” Id. at 327. The Court cautioned, however, that the Fourth Amendment

permitted such a protective sweep only if “the searching officer ‘possessed a reasonable belief

based on specific and articulable facts which, taken together with the rational inferences from

those facts, reasonably warranted the officer in believing’ that the area swept harbored an

individual posing a danger to the officer or to others.” Id. (quoting Michigan v. Long, 463 U.S.

1032, 1049-50 (1983)) (citations omitted).

       Recently, in Williams v. Commonwealth, 49 Va. App. 439, 642 S.E.2d 295 (2007) (en

banc), this Court reviewed the law governing exigent circumstances under facts relevant to those

in the case at hand. In Williams, the appellant admitted that he was “heavily armed” before

surrendering to police. Earlier, police had spotted an unidentifiable figure in the window of the

appellant’s apartment. The officers, therefore, conducted a “protective sweep and attempt[ed] to

locate a handgun [they] believed was inside” and “to see if there was anyone else” inside the

apartment. Id. at 445-46, 642 S.E.2d at 298. The trial court upheld the search, finding that

“exigent circumstances permitted the police ‘to do a protective sweep to make sure there’s no

one else in the apartment who has access to [the appellant’s] weapon.’” Id. at 446, 642 S.E.2d at

298.

       In deciding Williams, this Court sitting en banc conducted a comprehensive analysis of

the jurisprudence surrounding exigent circumstances and protective sweeps. We relied on the

                                                -5-
Supreme Court’s analysis in Buie, 494 U.S. 325, and surveyed relevant holdings in cases from

other federal and state jurisdictions. See Williams, 49 Va. App. at 448-51, 642 S.E.2d at

299-301. We held that the protective sweep in Williams was valid because the police had

information indicating: 1) the presence of others inside the apartment; and 2) the presence of

weapons inside the apartment. These facts gave police a “reasonable suspicion” that the

apartment “harbor[ed] an individual posing a danger to the officers and others.” Buie, 494 U.S.

at 327. See Williams, 49 Va. App. at 454, 642 S.E.2d at 302.

       By contrast, in the case at hand, the officers had no such information indicating the

presence of another individual inside appellant’s dwelling. The evidence demonstrates that

Officer Thompson was told by Tiffany that appellant was alone in the house. The admitted

videotape supports her statement. In the thirty-five minute tape, the camera was focused entirely

on the front door and windows of the house. At no point did police appear to see or hear another

individual inside the house. The tape also shows appellant yelling at the officers before they

entered, “Ain’t nobody else in the house!”

       The instant case resembles the circumstances of United States v. Colbert, 76 F.3d 773

(6th Cir. 1996), cited by the dissent in Williams, 49 Va. App. at 463-64, 642 S.E.2d at 306-07

(Humphreys, J., dissenting). In Colbert, the Sixth Circuit held that a “[l]ack of information

cannot provide an articulable basis upon which to justify a protective sweep.” 76 F.3d at 778.

The Court explained, “[A]llowing the police to justify a protective sweep on the ground that they

had no information at all is directly contrary to the Supreme Court’s explicit command in Buie

that the police have an articulable basis on which to support their reasonable suspicion of danger

from inside the home.” Id.

       In the case at hand, the officers similarly had no information by which they could

reasonably infer that another individual could be present inside the dwelling after appellant was

                                               -6-
detained outside. Moreover, on cross-examination, when asked why police needed to secure the

house, Officer Thompson replied, “You’ll have to ask them. . . . Typically, a procedure would

be, even though there’s one person in the house, we don’t know if there’s anybody else in the

house and we’re securing the house.” The evidence shows, therefore, that the officers did not

possess a reasonable suspicion that, after appellant’s arrest, appellant’s dwelling harbored an

individual posing a danger to the officers or others, as required by the standard set forth in Buie.

       The Commonwealth cites Verez, 230 Va. at 410-11, 337 S.E.2d at 753, to support the

argument that “exigent circumstances” justified a warrantless entry. We do not find that

argument persuasive. In Verez, the Supreme Court of Virginia set forth several examples of

exigent circumstances:

               (1) the degree of urgency involved and the time required to get a
               warrant; (2) the officers’ reasonable belief that contraband is about
               to be removed or destroyed; (3) the possibility of danger to others,
               including police officers left to guard the site; (4) information that
               the possessors of the contraband are aware that the police may be
               on their trail; (5) whether the offense is serious, or involves
               violence; (6) whether officers reasonably believe the suspects are
               armed; (7) whether there is, at the time of entry, a clear showing of
               probable cause; (8) whether the officers have strong reason to
               believe the suspects are actually present in the premises; (9) the
               likelihood of escape if the suspects are not swiftly apprehended;
               and (10) the suspects’ recent entry into the premises after hot
               pursuit.

Id. As the Verez Court noted, the Commonwealth bears “a heavy burden of proving justification

by exigent circumstances.” Id. at 410, 337 S.E.2d at 753. In deciding whether exigent

circumstances justify a warrantless entry, a court “must examine the circumstances as they

reasonably appeared to the law enforcement officers on the scene.” Id. at 411, 337 S.E.2d at

753.

       Initially we note that eight of the examples set forth above are predicated upon a

reasonable belief that an individual is actually within the premises at the time of the entry. As

                                                -7-
we held above, however, in the instant case there is no evidence upon which the police could

have formulated such a belief. Likewise, “urgency” is not relevant, as appellant was in police

custody at the time of the entry, and the front door through which the police entered was locked,

necessitating their breaking it down. Finally, as the videotape shows, appellant was initially

arrested for being drunk in public, which generally cannot be characterized as a serious offense,

or one necessarily involving violence. Thus, we conclude the circumstances surrounding the

entry were not exigent.

       Moreover, the trial court was in error by concluding that police “have a right to go into a

crime scene.” As this Court explained in Hunter v. Commonwealth, 8 Va. App. 81, 84, 378

S.E.2d 634, 635 (1989), “The landmark case of Mincey v. Arizona, 437 U.S. 385 (1978),

established that no ‘crime scene exception’ to the warrant requirement exists.” See also

Thompson v. Louisiana, 469 U.S. 17, 19-21 (1984) (reaffirming the holding in Mincey that a

crime scene exception for a warrantless search “is inconsistent with the Fourth and Fourteenth

Amendments”).

       Accordingly, we reverse the judgment of the trial court and remand the case for further

proceedings, if the Commonwealth be so advised.

                                                                          Reversed and remanded.




                                               -8-
