                                         COURT OF APPEALS OF VIRGINIA


            Present: Judges Petty, AtLee and Senior Judge Annunziata
            Argued by teleconference
PUBLISHED




            ENDALKACHEW MERID
                                                                                 OPINION BY
            v.     Record No. 1145-19-4                                     JUDGE WILLIAM G. PETTY
                                                                                 MAY 12, 2020
            COMMONWEALTH OF VIRGINIA


                           FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                                           James C. Clark, Judge1

                           Samuel C. Moore (Law Office of Samuel C. Moore, PLLC, on
                           briefs), for appellant.

                           Kelsey M. Bulger, Assistant Attorney General (Mark R. Herring,
                           Attorney General, on brief), for appellee.


                   In this appeal, we consider whether the trial court erred in refusing to suppress evidence that

            police discovered after entering an apartment to prevent an occupant from committing suicide.

            Because we conclude that the officers’ actions were reasonable and thus did not violate the Fourth

            Amendment, we affirm the judgment of the trial court.

                                                    I. BACKGROUND

                   “In reviewing a trial court’s denial of a motion to suppress, ‘we determine whether the

            accused has met his burden to show that the trial court’s ruling, when the evidence is viewed in

            the light most favorable to the Commonwealth, was reversible error.’” Cantrell v.

            Commonwealth, 65 Va. App. 53, 56 (2015) (quoting Roberts v. Commonwealth, 55 Va. App.

            146, 150 (2009)).



                   1
                     Judge Lisa B. Kemler heard and denied the motion to suppress. Judge James C. Clark
            presided over the jury trial and signed the final order.
       “[A] defendant’s claim that evidence was seized in violation of the Fourth Amendment

presents a mixed question of law and fact that we review de novo on appeal.” King v.

Commonwealth, 49 Va. App. 717, 721 (2007). On appeal, we are “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.” Cantrell, 65 Va. App. at 56 (quoting McGee v. Commonwealth, 25

Va. App. 193, 198 (1997) (en banc)). “However, we consider de novo whether those facts

implicate the Fourth Amendment and, if so, whether the officers unlawfully infringed upon an

area protected by the Fourth Amendment.” Id. (quoting Hughes v. Commonwealth, 31 Va. App.

447, 454 (2000) (en banc)).

       On October 18, 2017, the Alexandria Police Department received a call about

Endalkachew Merid. Early that morning Merid texted his brother Asteway, saying that life had

been hard for the past nine years, that he had “been struggling, pretending,” and that he was

going to “join” their deceased mother. The messages ended with the plea “[P]lease forgive me

for my weakness.”

       Unsettled by these messages, Asteway and his wife called Merid’s cell phone. Merid

answered but did not speak for long, telling them that he was “sleepy” and “fine.” During the

next few hours, Asteway tried unsuccessfully to reach Merid on the phone again. Asteway left

work around 3:00 p.m. and went to Merid’s apartment, where he noticed that the car Merid drove

was in the apartment parking lot. He tried knocking on the door, and he also tried calling Merid

through the intercom. Unable to reach him by any of these means and concerned for Merid’s

welfare, Asteway called the police.

       Officers Izzi and Matteson came to the apartment in response to Asteway’s phone call.

Asteway was “very concerned.” Asteway showed Officer Izzi the text messages, explaining that

                                               -2-
Merid claimed he was going to “join” their deceased mother. He told the officers that he had

attempted to reach Merid that day and that he thought Merid was home, because the car Merid

drove was in the parking lot. The officers ran the tags on the car and discovered that it was not

registered to Merid, and Asteway explained that Merid did not own the car.

       The officers began to knock on the apartment door, and they heard a male voice inside

saying “something about getting dressed or clothes.” Officer Izzi announced that they were

police. Asteway also tried to talk to his brother through the closed door. As the officers

continued knocking, they heard “some sort of garble, throw up, suction noise,” which Officer

Izzi described as “very strange” and “alarming.” Officer Matteson described the sound as “a

gargling sound mixed with some coughing and moaning, like pain.” Officer Izzi asked if the

occupant was okay. He testified, “[t]hought I heard maybe a yeah. Asked if he needed medics.

He said no. Asked him – kept knocking, asking him to come to the door so we could see. Make

sure everything’s ok.” There was no further response from inside the apartment, except for the

strange noise.

       The officers unlocked the door with a maintenance key, still announcing their presence

and calling for Merid to come to the door. Hearing the “alarming” noise again and unable to

open the door because the chain latch was engaged, Officer Izzi “shouldered the door open.”

The apartment was dark.

       Officer Izzi immediately saw that Merid was on the couch, using a large kitchen knife to

repeatedly stab himself in the throat. Officer Izzi ran over to the couch, “held [Merid’s] arm

down[,] and pried the knife out of his hand.” Officer Matteson called for medics, and they both

attempted to stop the bleeding until the medics arrived about five minutes later.

       When the medics arrived and began administering aid, the officers stepped away a few

feet and waited. Officer Izzi recalled that, from his point of view in the dining area, he was able

                                                -3-
to see the entire apartment but for the bedroom. At that point, the acting sergeant—who was

now on-scene—reached his head in the door and “asked if the apartment had been checked for

anyone else.” Officer Izzi testified,

               We had already seen the living room, the dining room, and the
               kitchen. But to my rear was the bedroom door. So I told him that I
               would check to ensure that there was no other person or pets or
               anything like that in the apartment. And I then went and checked
               the bedroom.

He stepped three or four feet to the bedroom, opened the door, and saw a female body lying on

the ground. She was “tied to the chair. Her head was wrapped in plastic . . . . And there was

dried blood pooled on the floor all around her.” The body was discovered to be that of June

Seals, the owner of the car in the parking lot and the only person listed on the rental agreement.

Officer Izzi notified the sergeant and the medics, and he secured the bedroom as a crime scene.

Merid was then transported to the hospital. The next persons to enter the room were detectives,

who had obtained a search warrant.

       Merid was subsequently indicted for the abduction and murder of June Seals, in violation

of Code §§ 18.2-47, 18.2-32, and 19.2-221. He moved to “suppress all evidence, and its fruits

thereof, recovered on October 18, 2017, through an unlawful search of [his] residence.”2 The

trial court denied the motion to suppress, finding the community caretaker exception to the

Fourth Amendment applied to the search and the evidence would have been inevitably

discovered. Following a jury trial, Merid was convicted of both counts and sentenced to life in

prison, plus ten years.




       2
        The trial court found that “[Merid] would have an expectation of privacy in the
apartment for purposes of the Fourth Amendment.” The Commonwealth does not challenge
Merid’s standing on appeal, so we will not address that issue.
                                              -4-
                                         II. ANALYSIS

       Merid argues that the trial court erred in denying his motion to suppress because the entry

into the apartment and the search of the bedroom violated the Fourth Amendment. We disagree

and hold that both the entry into the apartment and the search of the bedroom were justified

under the emergency aid exception to the Fourth Amendment.3

                               A. Initial Entry into the Residence

       We first consider the law pertaining to an officer’s initial entry into a residence to render

emergency aid. It is well-established that under the Fourth Amendment, “[s]earches and seizures

conducted without a warrant are presumptively invalid.” Cantrell, 65 Va. App. at 59. However,

this “‘presumption may be overcome in some circumstances’ because the ‘warrant requirement is

subject to certain reasonable exceptions.’” Ross v. Commonwealth, 61 Va. App. 752, 759

(2013) (quoting Kentucky v. King, 563 U.S. 452, 459 (2011)); see also Kyer v. Commonwealth,

45 Va. App. 473, 480 (2005) (en banc) (recognizing that the Fourth Amendment “condemns

only ‘unreasonable’ searches and seizures”). Indeed, “reasonableness is always the touchstone

of Fourth Amendment analysis.” Birchfield v. North Dakota, 136 S. Ct. 2160, 2186 (2016).


       3
          The trial court upheld the initial entry under the community caretaker exception, and it
upheld the subsequent entry into the bedroom as a protective sweep pursuant to an emergency
custody order. The substance of the issue, however, embodies the rationale underlying the
emergency aid exception.
        Caselaw from this Court has been less than clear in the past when discussing the
emergency aid exception and the community caretaker exception, often conflating the two. See
Ross v. Commonwealth, 61 Va. App. 752, 760 (2013) (analyzing the exceptions separately but
noting that both would permit police to enter a residence when individuals inside are in physical
danger); see also Cantrell, 65 Va. App. at 60 (holding that the community caretaker exception
permits police to “conduct a warrantless inventory search of a vehicle” if certain conditions are
met). On appeal, the Commonwealth has recognized this overlap and cited to both exceptions.
        We conclude that the applicable doctrine is the emergency aid exception, and we will
address the parties’ arguments based on substance, not label. This is in accord with the principle
that “[a]ppellate courts do ‘not review lower courts’ opinions, but their judgments.’” Evans v.
Commonwealth, 290 Va. 277, 288 n.12 (2015) (quoting Jennings v. Stephens, 574 U.S. 271, 277
(2015)). Consequently, “[a] lower court’s judgment, if legally correct, will be affirmed even if
we were to disagree with the lower court’s legal reasoning.” Id.
                                                  -5-
       “One concession to reasonableness” is the emergency aid exception to the warrant

requirement, which “recognizes the ‘right of the police to enter and investigate’ when someone’s

health or physical safety is genuinely threatened.” Kyer, 45 Va. App. at 480 (citation omitted).

The exception “rests on the commonsense rationale that ‘preservation of human life is paramount

to the right of privacy.’” Id.; see also Brigham City v. Utah, 547 U.S. 398, 403 (2006) (“The

need to protect or preserve life or avoid serious injury is justification for what would be

otherwise illegal absent an exigency or emergency.” (quoting Mincey v. Arizona, 437 U.S. 385,

393 (1978))). The emergency aid exception also “takes into account that ‘police owe duties to

the public, such as rendering aid to individuals in danger of physical harm, reducing the

commission of crimes through patrol and other preventative measures, and providing services on

an emergency basis.’” Ross, 61 Va. App. at 760 (quoting Kyer, 45 Va. App. at 480).

       Under the emergency aid exception, “law enforcement officers may enter a home without

a warrant to render emergency assistance to an injured occupant or to protect an occupant from

imminent injury.” Brigham City, 547 U.S. at 403. This type of exigency4 permits entry if the

officers have “‘an objectively reasonable basis for believing’ . . . that ‘a person within [the

house] is in need of immediate aid.’” Michigan v. Fisher, 558 U.S. 45, 47 (2009) (per curiam)

(quoting Brigham City, 547 U.S. at 406, and Mincey, 437 U.S. at 392).5




       4
         The Supreme Court in Birchfield, 136 S. Ct. at 2173, characterized “the warrantless
entry of private property when there is a need to provide urgent aid to those inside” as a type of
exigent circumstance.
       5
          The Supreme Court recognized the validity of this type of conduct again in 2012, when
it held that for purposes of qualified immunity, “[a] reasonable police officer could read [prior
Supreme Court decisions] to mean that the Fourth Amendment permits an officer to enter a
residence if the officer has a reasonable basis for concluding that there is an imminent threat of
violence.” Ryburn v. Huff, 565 U.S. 469, 474 (2012).
                                                 -6-
                              B. Cursory Sweep Following an Entry

       We must also consider whether officers may conduct a cursory sweep of a residence after

entering pursuant to the emergency aid exception. It is well-established that “a warrantless

search must be ‘strictly circumscribed by the exigencies which justify its initiation.’” Mincey,

437 U.S. at 392 (citation omitted). Based on this tenet, we will not impose a bright-line rule that

would confine the police to the immediate physical space surrounding the emergency when they

have entered to provide aid. Doing so would ignore the over-arching principle that

reasonableness—not line-drawing—“is always the touchstone of Fourth Amendment analysis.”

Birchfield, 136 S. Ct. at 2186. We choose instead to heed the axiom that “[t]he calculus of

reasonableness must embody allowance for the fact that police officers are often forced to make

split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving.”

Graham v. Connor, 490 U.S. 386, 396-97 (1989).

       While there is no Virginia case that directly addresses this issue, there is support

elsewhere for the principle that police may conduct a cursory sweep after entering to render

emergency aid. In United States v. Najar, 451 F.3d 710 (10th Cir. 2006), the Tenth Circuit Court

of Appeals upheld the entry and search of a residence under the emergency aid exception to the

Fourth Amendment. There, police received a 911 call that was quickly disconnected, and after

several attempts to reach the caller, who would answer and then hang up, officers went to the

residence to investigate. Id. at 712. After knocking and announcing, the officers noticed a

person moving around inside who did not respond until they “persisted, with increasing vigor, to

attract attention.” Id. When Najar, the defendant, finally came to the door after approximately

thirty minutes, id. at 719, he denied calling 911 and told officers he was the only person in the

residence, id. at 712. Despite his claims, officers entered the residence and searched “for a

possible victim.” Id. at 712. One officer discovered an unharmed woman in a bedroom near the

                                                -7-
area where Najar had been seen, and he conducted a quick search of the remaining bedroom. Id.

at 717, 720. Another officer found a shotgun in plain view in the living room. Id. at 717. Najar

was subsequently charged with violation of a federal statute prohibiting possession of a firearm

by a convicted felon. Id. at 712.

       The court in Najar applied a two-part test to determine if the officers’ actions were valid

under the Fourth Amendment: “whether (1) the officers have an objectively reasonable basis to

believe there is an immediate need to protect the lives or safety of themselves or others, and

(2) the manner and scope of the search is reasonable.” Id. at 718. The court found the officers

could have reasoned that someone inside the residence was “trying to prevent communication

with safety officials” and that Najar was lying either about calling 911 or about being the only

person inside the residence. Id. at 720. In addition, the court reasoned, the delay caused by the

officers’ “reasonable investigation” did not “obviate the existence of the emergency.” Id. at 719.

Having concluded that the entry was justified, the court also found that the manner and scope of

the search was reasonable because the officers “confined the search to only those places inside

the home where an emergency would reasonably be associated,” namely, “where a victim might

likely be found.” Id. at 720. Once they searched the bedrooms, “[n]o further intrusion

occurred.” Id. Both the basis and the extent of the actions were reasonable. Id.

       Likewise, in Stricker v. Township of Cambridge, 710 F.3d 350, 362 (6th Cir. 2013), the

Sixth Circuit Court of Appeals found that police were justified in entering and sweeping a

residence when they “had an objectively reasonable belief” that an occupant was suffering from

a drug overdose and that his family was “attempt[ing] to hide the drug overdose from the

police.” Once the police were inside, the court held that it was “objectively reasonable for the

officers to conduct a protective sweep” to not only locate Stricker but also “secure the premises”

and protect “EMS, themselves, and others on the . . . property.” Id. The protective sweep was

                                               -8-
permissible even though it was extensive—the occupants alleged that officers searched through

drawers and cabinets—because police could have been searching for “clues as to what [Stricker]

ingested, in order to aid EMS.” Id.

       Several state courts are also in agreement. The Supreme Court of Delaware has held that

under the emergency aid exception, police may conduct “not only a search of the premises to

find people in need of aid, but also [conduct] a protective sweep to ensure no further danger is

present,” provided such action “is limited to ‘those areas necessary to respond to the perceived

emergency.’” Guererri v. State, 922 A.2d 403, 407 (Del. 2007). Similarly, in State v. Horngren,

617 N.W.2d 508, 513 (Wis. 2000), the Supreme Court of Wisconsin held that officers may

conduct a protective sweep after they have entered a residence to render emergency aid, if

reasonable “under the totality of the circumstances.”6 The court held that officers acted

reasonably when they conducted a “sweep” of an apartment after entering in response to a

suicide threat, because they suspected weapons might be in the apartment, and the occupant told

them there was “‘a girl’ in the back bedroom.” Id. In Commonwealth v. Kaeppeler, 42 N.E.3d

1090, 1096 (Mass. 2015), the Supreme Court of Massachusetts addressed entry and search under

the emergency aid exception as one entity, requiring that “the police [must have] an objectively

reasonable ground to believe that an emergency existed” and that “the conduct of the police after

the entry [must be] reasonable under all the circumstances.”

                C. The Officers’ Actions Did Not Offend the Fourth Amendment

       Considering all of the above principles, and applying the rule that officers may conduct a

cursory sweep of the residence after entering pursuant to the emergency aid exception if

reasonable, we hold that the officers in this case did not violate the Fourth Amendment in




       The court referred to this exception as “community caretaker activity.” Horngren, 617
       6

N.W.2d at 513.
                                              -9-
entering the apartment and opening the bedroom door. First, the officers had an “‘an objectively

reasonable basis for believing’ . . . that ‘a person within [the apartment was] in need of

immediate aid.’” Fisher, 558 U.S. at 47 (citations omitted). The officers received information

from dispatch about a possible suicide threat. Once they arrived at the apartment, they were met

by Merid’s brother Asteway, who was “very concerned” for his brother. Asteway showed the

officers text messages where Merid discussed “join[ing]” his deceased mother and asked his

brother to forgive him. Asteway told the officers that he had not been able to reach Merid all

day. Concern intensified when Merid did not come to the door despite repeated requests by the

officers and Asteway. The officers testified that although Merid responded that he was “getting

dressed” and did not need medics, they continued to hear an “alarming” sound that they

described as “garble, throw up” and “coughing and moaning, like pain.” Based on these

troubling circumstances, the officers had an objectively reasonable basis for believing that the

occupant inside the apartment needed—whether welcomed or not—immediate aid.

       Once inside the apartment, the officers acted reasonably under all the circumstances. The

officers walked into an especially violent suicide attempt and wrestled Merid to confiscate the

knife. Although Merid was restrained at the time that Officer Izzi entered the bedroom, it was

not out of the realm of possibility—and indeed it was the case—that someone else in the

apartment might have been subjected to violence. In addition, the officers knew that the car

Merid drove was registered to someone other than Merid, which could have suggested that the

car owner was in the apartment, too. Furthermore, the officers were aware that EMS was about

to transport Merid to a hospital. As far as the officers were concerned, there might have been a

pet, a child, or an adult in need behind that closed bedroom door. It was certainly reasonable for

the officers to ensure that the premises and any other occupants were safe and secure before they

left. In fact, it would have been irresponsible for them to have done otherwise.

                                               - 10 -
       Finally, Officer Izzi’s actions were minimally intrusive—he simply walked a few feet to

check the one remaining area in the residence. He did not empty drawers or cabinets. While

referred to as a search, he took the minimum necessary steps to ensure that it would be safe and

prudent to leave the scene. And, instead of proceeding to search the apartment and collect

evidence pertaining to the murder, the officers did exactly what the Fourth Amendment

commands; they sought and obtained a search warrant from the magistrate.

       We are persuaded that the salient point in this discussion—as in all Fourth Amendment

matters—remains whether officer conduct is reasonable under all the circumstances. Therefore,

instead of adopting a per se rule either in favor of or against the constitutionality of a sweep

under the emergency aid exception, we will again recognize that officers must act in an

objectively reasonable manner when acting without the authority of a warrant. Here, the officers

acted well within the realm of objective reasonableness. Having so concluded, we must always

recognize that

                 [t]he “heavy costs” of suppressing the truth, should always be a
                 court’s “last resort, not [its] first impulse.” “To trigger the
                 exclusionary rule, police conduct must be sufficiently deliberate
                 that exclusion can meaningfully deter it, and sufficiently culpable
                 that such deterrence is worth the price paid by the justice system.”
                 This deliberateness requirement focuses “the inquiry on the
                 ‘flagrancy of the police misconduct’ at issue.” The rule thus seeks
                 “to deter deliberate, reckless, or grossly negligent conduct, or in
                 some circumstances recurring or systemic negligence.” Only in
                 such circumstances can the violation be deemed “patently
                 unconstitutional” or be characterized as “flagrant conduct,” thereby
                 justifying exclusion.

Collins v. Commonwealth, 297 Va. 207, 215 (2019) (citations omitted). The conduct at issue

here was not only consistent with the demands of the Fourth Amendment, but it was also far

from the type of “deliberate, reckless, or grossly negligent conduct” contemplated by the

exclusionary rule.



                                                - 11 -
                                      III. CONCLUSION

       Because the officers acted reasonably in entering to render emergency aid and in

conducting a security sweep of the remaining area of the residence, we hold that their actions did

not violate the Fourth Amendment.7 Accordingly, the trial court did not err in denying the

motion to suppress, and we affirm the convictions.

                                                                                        Affirmed.




       7
        Based on this conclusion, we need not address the trial court’s alternative ruling
upholding the search pursuant to the inevitable discovery exception.
                                              - 12 -
