                                                COURT OF APPEALS OF VIRGINIA


              Present: Judges Elder, Frank and Beales
UNPUBLISHED


              Argued by teleconference


              COMMONWEALTH OF VIRGINIA
                                                                            MEMORANDUM OPINION * BY
              v.     Record No. 2276-12-3                                    JUDGE ROBERT P. FRANK
                                                                                  MAY 14, 2013
              BYRON HOWARD TURNER, III AND
               CYNTHIA MARIE BONDS


                                      FROM THE CIRCUIT COURT OF FLOYD COUNTY
                                                 David A. Melesco, Judge

                               Elizabeth C. Kiernan, Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on briefs), for appellant.

                               Dennis E. Nagel for appellee Cynthia Marie Bonds.

                               No brief or argument for appellee Byron Howard Turner.


                     Pursuant to Code § 19.2-398(C), the Commonwealth appeals the trial court’s suppression of

              certain evidence obtained by the police upon entering the premises of Byron Howard Turner, III and

              Cynthia Marie Bonds, appellees, without a search warrant. For the reasons stated, we reverse and

              remand for trial on the merits if the Commonwealth be so inclined.

                                                        BACKGROUND

                     In reviewing the Commonwealth’s pretrial appeal, we view the evidence in the light most

              favorable to Turner and Bonds, the prevailing parties below, and we grant all reasonable inferences

              fairly deducible from that evidence. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407

              S.E.2d 47, 48 (1991).



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        On November 29, 2011, Floyd County Deputy Sheriff D.L. Cook (“Cook”), assigned to the

New River Regional Drug Task Force, received a telephone call from Marla Martinez (“Martinez”),

a Floyd County child protective service worker. Martinez told Cook she was planning to investigate

a complaint that children were living at appellees’ trailer where methamphetamine was being

manufactured. Cook and other officers of the Regional Task Force had previously received similar

anonymous complaints that methamphetamine was being manufactured at the appellees’ residence.

Cook and Special Officer Garman then went with Martinez to the residence intending to conduct a

“knock and talk.”

        Cook left his vehicle and walked to the front door of the trailer, knocked loudly, and waited

for twenty to thirty seconds. Although he heard some movement inside, no one came to the door.

Cook then looked into the large window that was immediately adjacent to the door. Through it

Cook observed that the room was under construction, with a portion of the room’s flooring

removed. Believing no one could access the front door from inside the trailer, Cook walked along

the trailer, heading for the back door on the opposite side.

        Before he reached the back door, Cook saw a Coleman fuel bottle by the side of the trailer.

Based on his training and experience, 1 Cook recognized the Coleman fuel bottle as a “precursor” to

the manufacture of methamphetamine. Cook then noticed a trash burn pile approximately fifteen

feet from the trailer’s back door. Protruding from the edge of the burn pile was an intact clear

plastic one-liter bottle. The bottle contained white “sludge” intermixed with dark particles. Based

on his training and experience, Cook knew the white “sludge” to be ammonium nitrate, and the dark

particles to be lithium – materials used in the “bottle method” of manufacturing methamphetamine.



        1
          Cook testified that he has attended multiple drug conferences addressing
methamphetamine labs and that he has participated in fifty drug investigations, mostly involving
the “bottle method” of making methamphetamine. Appellee did not object to Cook’s testimony
as to the methods of manufacturing methamphetamine.
                                               -2-
       Believing he had discovered material used in the manufacturing of methamphetamine, Cook

knocked on the rear door. Bonds answered the door, “very quickly, within seconds.” As the door

opened outwards toward Cook, he pulled the door open. Cook asked Bonds if anyone else was in

the trailer. Bonds replied that her boyfriend or husband was in the trailer. From the outside, Cook

could not see inside the trailer, not knowing if the other occupant was armed. While he was

speaking to Bonds, Cook stepped into the trailer for his “own safety.” Cook testified that he was

concerned of the presence of weapons or chemicals associated with a methamphetamine lab.

       At the suppression hearing, Special Officer Tim Stuart, a trained Site Safety Officer with the

Drug Task Force, explained that the manufacture of methamphetamine using the “bottle method,”

or the “one pot method,” includes the use of lithium strips, Coleman fuel, and a plastic bottle. These

ingredients are dangerous individually as well as when combined, and if one adds water to the

mixture, which is a common practice, the water can react with the lithium to cause a fire. When

Coleman gas is present, explained Stuart, the fire can lead to an explosion.

       Once inside, Cook saw Turner and advised both appellees he was going to obtain a search

warrant. Cook asked “if there was anything inside the residence that would harm [his] officers,

such as mixed chemicals, when they went inside to execute the search warrant.” Turner replied,

“yes there are a few mixed bottles back here.” Cook and Special Officer Garman escorted Bonds

and Turner from the trailer, and Cook left to obtain a search warrant.

       Cook testified that people handling materials used to manufacture methamphetamine might

be contaminated by those materials. He was instructed by the State Police to not allow those

persons to leave the scene nor enter any police vehicle until they were decontaminated.

       Cook did not conduct a search of the residence at that time, nor did he remove any items

from the residence.




                                                 -3-
        Cook obtained a search warrant 2 and returned to the property with the Virginia State Police

Methamphetamine Cleanup Team to execute the warrant. The team conducted the search of the

interior of the trailer. From inside the trailer, the team seized Coleman fuel, muriatic acid, lithium

batteries, Drain Out, cold pack packages, plastic tubing, plastic bottles, and several jars.

        The trial court found no Fourth Amendment violation prior to Cook entering the trailer.

However, the trial court did not accept Cook’s explanation of the purpose of his entry into the

trailer, and ruled that the entry violated appellees’ Fourth Amendment rights.

        The trial court suppressed Turner’s statement that was made before Cook obtained the

search warrant, as well as all items seized pursuant to the search warrant.

        This appeal follows.

                                              ANALYSIS

        In cases involving Fourth Amendment issues, “we give deference to the historical facts

determined by the trial court, but we review de novo whether the legal standard of probable cause

was correctly applied to the historical facts.” Brown v. Commonwealth, 270 Va. 414, 419, 620

S.E.2d 760, 762 (2005). “The issue of whether an officer acted with probable cause and under

exigent circumstances, however, is a mixed question of fact and law that we review de novo.”

Robinson v. Commonwealth, 273 Va. 26, 39, 639 S.E.2d 217, 224-25 (2007).

        The Commonwealth argues that Cook’s decision to enter the residence was supported by

probable cause and exigent circumstances.3 We agree with the Commonwealth.


        2
         The affidavit supporting the search warrant included Turner’s statement that “there are a
few bottles back here” to establish probable cause.
        3
          Appellee Bonds argues that at the suppression hearing the Commonwealth argued
community caretaker doctrine and not exigent circumstances. In that regard, Bonds contends
that the Commonwealth’s current position on exigent circumstances is waived pursuant to Rule
5A:18 which states that “[n]o ruling of the trial court . . . will be considered as a basis for
reversal unless the objection was stated with reasonable certainty at the time of the ruling . . . .”
However, the Commonwealth’s post-hearing memorandum on the motion to suppress expressly
                                                -4-
        “[P]robable cause exists when the facts and circumstances within the officer’s knowledge,

and of which he has reasonably trustworthy information, alone are sufficient to warrant a person of

reasonable caution to believe that an offense has been or is being committed.” Taylor v.

Commonwealth, 222 Va. 816, 820, 284 S.E.2d 833, 836 (1981). The determination of probable

cause by police officers depends upon “practical considerations of everyday life on which

reasonable and prudent men,” not legal technicians, act. Id. “In determining whether probable

cause exists courts will test what the totality of the circumstances meant to police officers trained in

analyzing the observed conduct for purposes of crime control.” Hollis v. Commonwealth, 216 Va.

874, 877, 223 S.E.2d 887, 889 (1976) (citation omitted). Also, “[w]e evaluate the existence of

probable cause under a standard of objective reasonableness.” Cherry v. Commonwealth, 44

Va. App. 347, 357, 605 S.E.2d 297, 302 (2004).

        In order to proceed further without obtaining a warrant, however, exigent circumstances are

also required. Robinson, 273 Va. at 40, 639 S.E.2d at 225.

                        No court has, to our knowledge, attempted to formulate a
                final and comprehensive list of all exigent circumstances which
                might justify a warrantless entry, but some of those considered
                relevant have been: (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

raised exigent circumstances, and the trial court explicitly noted that it considered the
Commonwealth’s memorandum. Therefore, we will address that issue on appeal. “Arguments
made at trial via written pleading, memorandum, recital of objections in a final order, oral
argument reduced to transcript, or agreed written statements of facts shall, unless expressly
withdrawn or waived, be deemed preserved therein for assertion on appeal.” Code
§ 8.01-384(A); Moncrief v. Div. of Child Support, 60 Va. App. 721, 732 S.E.2d 714 (2012).

                                                  -5-
                 are not swiftly apprehended; and (10) the suspects’ recent entry
                 into the premises after hot pursuit.

Verez v. Commonwealth, 230 Va. 405, 411-12, 337 S.E.2d 749, 753 (1985). The Verez Court

noted this list is not exhaustive and that these are merely relevant factors in the determination of

whether sufficient exigent circumstances exist. Id.

       A determination of whether exigent circumstances justify a warrantless entry is based on

review of the ‘“circumstances as they reasonably appeared to trained law enforcement officers to

exist when the decision to enter was made.’” Id. at 411, 337 S.E.2d at 753 (quoting Keeter v.

Commonwealth, 222 Va. 134, 141, 278 S.E.2d 841, 846 (1981)). “The officers are not required to

possess either the gift of prophecy or the infallible wisdom that comes only with hindsight.” Keeter,

222 Va. at 141, 278 S.E.2d at 846. The officer’s subjective intent is irrelevant. Washington v.

Commonwealth, 60 Va. App. 427, 435, 728 S.E.2d 521, 525 (2012).

       Based on this record, even viewing the evidence in the light most favorable to appellees,

who prevailed at the suppression hearing, we conclude that the information known by Cook at the

time of his warrantless entry into the residence supports a finding of probable cause and exigent

circumstances.

       Cook testified that he received a phone call from a social worker who was concerned that

methamphetamine was being manufactured at this residence with children present. He had

previously received several anonymous tips regarding the same illegal activity. While Cook was

walking outside the residence, he observed a burn pile, Coleman fuel, and clear one-liter bottle. He

explained that these items, when used together, indicate “possible methamphetamine labs.” Based

upon his training and experience, Cook had probable cause to believe that this residence was being

used to manufacture methamphetamine. He therefore reasonably concluded that a criminal offense

had been or was being committed.



                                                -6-
        Our inquiry then becomes one of whether exigent circumstances existed to justify Cook’s

entry into the residence without a warrant. We find that they did.

        Before he entered the premises, Cook had observed makeshift equipment for manufacturing

methamphetamine in the yard. When he knocked on the door earlier, he heard movement inside the

trailer. He also observed a large window at the front of the residence, unobstructed by blinds or

curtains, allowing the residents to look outside and ascertain his presence as a police officer.

Appellee Bonds responded to the door within seconds of Cook knocking on the back door,

suggesting to Cook that the residents did, in fact, know that he was present on their property.

Methamphetamine is easily disposed of, and Cook was aware that the evidence could possibly be

destroyed during the time he left the property to obtain a search warrant. In addition, Cook testified

to the volatile nature of manufacturing methamphetamine. He held a reasonable concern that

because the residents were manufacturing methamphetamine, the residents and/or responding

officers could be injured at any time. Finally, based on information received from Martinez, Cook

thought it possible that children could be present inside the residence. Protecting the safety of any

children present was made even more urgent because, if any children were inside the residence, then

they were also in close proximity to any methamphetamine production going on inside. 4

        Appellee Bonds argues that Cook created his own exigency by forcing himself inside the

residence under a claim of providing for his own safety. We find no merit to this assertion. What

created the exigent circumstances was not Cook’s action, rather, it was his observation of evidence

indicating the presence of a methamphetamine lab and the dangers attendant thereto, as well as the



        4
          We do not suggest that exigent circumstances exist in every situation where police
officers have probable cause to believe that a premises contains a methamphetamine
manufacturing operation. See, e.g., United States v. Atchley, 474 F.3d 840, 851 n.6 (6th Cir.
2007) (rejecting the notion “that there should be a per se rule that whenever evidence of a
methamphetamine laboratory is apparent, there is always exigency”). This opinion is limited to
the specific facts of this case.
                                                -7-
admitted presence of another person inside the trailer whom Cook could not see. Under all the facts

and circumstances presented here, we do not find that any action on the part of Cook impermissibly

created the exigency. See Kentucky v. King, 131 S. Ct. 1849, 1859 (2011) (rejecting the notion

that officers may not rely on exigent circumstances if it was “reasonably foreseeable” that their

lawful investigative tactics would create such circumstances).

                                          CONCLUSION

       For the stated reasons, we find that Deputy Cook had probable cause and exigent

circumstances to enter the premises without a warrant. The appellees’ Fourth Amendment rights

were not violated. Therefore, the judgment of the trial court is reversed and the case is remanded

for trial on the merits if the Commonwealth be so inclined.

                                                                            Reversed and remanded.




                                                -8-
