                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Coleman and Bray
Argued at Richmond, Virginia


JACOB COLES SMALL
                                     MEMORANDUM OPINION * BY
v.   Record No. 1630-98-2       CHIEF JUDGE JOHANNA L. FITZPATRICK
                                       DECEMBER 28, 1999
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF HENRICO COUNTY
                        George F. Tidey, Judge

           Christopher H. Macturk for appellant.

           Steven A. Witmer, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.


     Jacob C. Small (appellant) was convicted in a bench trial

of possession of marijuana, in violation of Code § 18.2-250.1.

He contends the trial court erred by denying his motion to

suppress evidence obtained during a warrantless search of his

residence. 1   For the following reasons, we reverse and dismiss.




     *
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     1
       Appellant also argues on brief that his verbal statements
and physical actions were the result of an unlawful custodial
interrogation in violation of the requirements of Miranda v.
Arizona, 384 U.S. 436 (1966). Because we hold that the initial
entry was unlawful and that the unlawful entry led to the seizure
of the marijuana smoking pipe, we do not reach this issue.
                                    I.

        During an investigation of an unrelated crime, Officer J.S.

Bond (Bond) interviewed appellant and Adam Rizor (Rizor). 2      After

speaking with them, Bond learned that their driving privileges

had been suspended, but that Rizor was suspended without notice.

Bond went to appellant's residence, where he knew Rizor was

staying, to serve the notice of suspension.

        Arriving at appellant's home, Bond knocked on the front

door.       According to the agreed statement of facts,

               Rizor opened the door and a friendly and
               casual conversation ensued. Bond advised
               Rizor that his license was suspended and
               told him he had to go through the procedures
               associated with giving notice of the
               suspension of license. During this
               conversation, which was happening within the
               open doorway, Rizor reached for his driver's
               license and pulled it out, and took one step
               back. Bond had to take the driver's license
               from Rizor, pursuant to the giving of notice
               of suspension of license and Bond took one
               step towards Rizor. Bond was one step into
               the residence. Bond did not request an
               invitation or permission.

(Emphasis added).      Upon entering the home, Bond saw appellant

walking from the back of the residence and "immediately detected

the distinct odor of marijuana."

        Bond asked, "[W]ho's been smoking[?]"    Rizor pulled a bag

of marijuana out of his pocket and stated, "I have."      Bond

directed Rizor and appellant to sit down while he called for


        2
       The record does not contain a transcript of the trial, but
includes a written statement of facts signed by the trial judge.

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backup to assist the investigation.        Rizor was handcuffed, read

his Miranda rights, and arrested.       Bond then asked, "was there

anymore."    Appellant walked to the back patio and "pointed to a

blue smoking device."    Appellant admitted it was his, but said

that he was holding it for Rizor.       Appellant was given a summons

for possession of marijuana.

     Appellant's motion to suppress the evidence was denied by

the trial court, and appellant was convicted of possession of

marijuana.

                        II.    WARRANTLESS ENTRY 3

     On appeal, it is the defendant's burden to show "that the

denial of [the] motion to suppress constitute[d] reversible

error."     Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437

S.E.2d 232, 233 (1993).       "Ultimate questions of reasonable

suspicion and probable cause to make a warrantless search

involve questions of both law and fact and are reviewed de novo

on appeal."     McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487

S.E.2d 259, 261 (1997) (en banc) (citation omitted).

     "Although the Fourth Amendment permits law enforcement

officers to make warrantless arrests in public places upon

probable cause, warrantless entries into a suspect's home in


     3
       As a procedural matter, the Commonwealth argues that the
record before us is defective because the written statement of
facts was not properly filed with the trial court. By order dated
July 16, 1999, another panel of this Court rejected that argument
and, therefore, we do not address it here.


                                   - 3 -
order to arrest a suspect violate the Fourth Amendment unless

justified by exigent circumstances or consent."      Jefferson v.

Commonwealth, 27 Va. App. 1, 14, 497 S.E.2d 474, 480 (1998).

Because warrantless entries are presumed invalid, the

Commonwealth has a heavy burden to justify the warrantless

entry.   See Jones v. Commonwealth, 29 Va. App. 363, 369, 512

S.E.2d 165, 167 (1999).   "Unless an exception is shown by the

evidence, . . . , the threshold of one's home may not be crossed

without a warrant."    Id. at 368, 512 S.E.2d at 167 (citing

Payton v. New York, 445 U.S. 573, 590 (1980)).      No exception

exists in this case.

     The Commonwealth concedes that there was no valid consent

to enter appellant's home and that no probable cause and exigent

circumstances were present to validate the intrusion.     Rather,

the Commonwealth argues that under the facts presented the

officer's actions were reasonable.      The Commonwealth contends

that because the officer was performing a civil function in

serving the notice of suspension on Rizor, the intrusion into

the home was minimal and did not violate the Fourth Amendment's

prohibition against unreasonable searches and seizures.     The

Commonwealth cites no cases for this proposition.

     Contrary to the Commonwealth's theory, the warrantless

entry into appellant's home, even if reasonable under the

circumstances, must be supported by an exception to the Fourth

Amendment.   Here, the undisputed evidence proved that Officer

                                - 4 -
Bond did not ask for or receive appellant's consent to enter his

home.    The fact that appellant's front door was open did not

constitute an invitation for the officer to enter.      See Walls v.

Commonwealth, 2 Va. App. 639, 645, 347 S.E.2d 175, 178 (1986).

Additionally, no probable cause and exigent circumstances

existed.     See Washington v. Commonwealth, 29 Va. App. 5, 14-15,

509 S.E.2d 512, 516-17 (1999) (protection of an officer's

safety); Commonwealth v. Talbert, 23 Va. App. 552, 557, 478

S.E.2d 331, 334 (1996) ("hot pursuit" of a suspect); Hill v.

Commonwealth, 18 Va. App. 1, 3, 441 S.E.2d 50, 51 (1994) (strong

belief that a suspect was present).      Accordingly, the officer's

entry and subsequent search of the home violated appellant's

Fourth Amendment rights.

        Lastly, the Commonwealth contends that this case is

controlled by United States v. Santana, 427 U.S. 38 (1976),

because Officer Bond was performing a lawful duty.     In Santana,

the police made a controlled heroin purchase.     The officers

returned to the defendant's residence and saw her "standing in

the doorway of her house."     Id. at 40.   As the police approached

and announced themselves, the defendant "retreated into the

vestibule of her house" where the officers arrested her.      Id. at

40-41.    The Supreme Court held that the warrantless entry by the

police into the vestibule of the house was a true "hot pursuit."

Id. at 42-43.    In the present case, Officer Bond did not have

probable cause to arrest appellant, he was not in hot pursuit of

                                 - 5 -
a known suspect, and the incriminating evidence was obtained as

a direct result of the warrantless entry into the residence.

The rationale of Santana is inapplicable to this case. 4

     We hold that because the Commonwealth failed to establish a

consensual entry or any other exception to the Fourth Amendment,

Officer Bond's entry into appellant's home was unlawful and the

trial court erred in refusing to grant the motion to suppress

the evidence.    Accordingly, appellant's conviction is reversed

and dismissed.

                                          Reversed and dismissed.




     4
       Lowe v. Commonwealth, 218 Va. 670, 239 S.E.2d 112 (1977),
also cited by the Commonwealth, is factually distinguishable.
In Lowe, the Supreme Court specifically held that "an exigency
existed justifying the warrantless arrest" because the delay in
obtaining a warrant would have "increas[ed] the danger of
further violence to the police themselves and to the community
at large." Id. at 677, 239 S.E.2d at 117.


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