Evans v. Commonwealth ( 2015 )

PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Millette,
S.J.
TEVIN GARY EVANS
OPINION BY
v. Record No. 141206 JUSTICE D. ARTHUR KELSEY
September 17, 2015
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this criminal case, Tevin Gary Evans entered a conditional guilty plea after the trial
court denied his motion to suppress. In his motion, Evans claimed that police officers unlawfully
entered his apartment and seized his weapons and drugs. The Court of Appeals denied his
petition for appeal. Holding that the officers did not violate the Fourth Amendment, we affirm.
I.
We restate the facts “in the light most favorable to the Commonwealth, giving it the
benefit of any reasonable inferences.” Glenn v. Commonwealth, 49 Va. App. 413, 416, 642
S.E.2d 282, 283 (2007) (en banc) (citation omitted), aff’d, 275 Va. 123, 654 S.E.2d 910 (2008).
This standard requires us “to give due weight to inferences drawn from those facts by resident
judges and local law enforcement officers.” Jones v. Commonwealth, 279 Va. 521, 528, 690
S.E.2d 95, 99 (2010) (citation omitted).
While on bicycle patrol, three uniformed police officers smelled a heavy and extremely
strong odor of marijuana coming from an apartment window. A police detective, who later
arrived on the scene, testified at trial that the officers reported smelling “burnt” marijuana. On
brief, Evans concedes that “[i]n the instant case, it was undisputed that the officers smelled the
odor of burning marijuana” emanating from his apartment. See Appellant’s Br. at 10. 1
The officers knocked on the apartment door three times, and Evans’ mother answered
each time. During the first encounter, the officers asked “questions about someone smoking”
and explained to her the “heavy odor of marijuana” that they smelled. During the second
encounter, Evans’ mother appeared to be “shaking” and “nervous.” She exclaimed, “Ain’t
nobody smoking weed in here,” and then “slammed” the door in the “face” of one of the officers.
During this brief episode, the officers smelled the odor of marijuana “like a gust of wind”
coming from inside the apartment.
When knocking on the door the third time, the officers “announced out loud it was the
police.” No one answered the door for about five minutes. During this period, the officers heard
unspecified movement inside the apartment. After Evans’ mother finally opened the door, she
quickly tried to close it again. Another strong marijuana odor wafted through the doorway.
Concluding that exigent circumstances existed at this point, one of the officers put his
hand on the door to prevent it from closing, and as he did so, he told Evans’ mother that he was
coming in to investigate. The officer then entered the apartment and observed in plain view “a
burnt marijuana blunt” and marijuana residue. When asked by the officers if there was
marijuana in the apartment, Evans’ mother admitted, “My son was smoking a blunt,” and
offered, “I’ll get it for you.”
Shortly thereafter, an investigator asked for and received written consent from Evans and
his mother to search the apartment. In their subsequent search, investigators found cocaine,
1
Without mentioning this concession, Evans’ counsel contended otherwise at oral
argument on appeal. See Oral Argument Audio at 1:24 to 1:28. We accept Evans’ concession
on brief as the fairest inference from the facts of this case.
2
morphine, a loaded Glock handgun previously reported as stolen, a loaded Taurus handgun, three
boxes containing a total of 119 rounds of ammunition, and a revolver in a container along with 6
rounds of ammunition. They also discovered plastic sandwich bags and over $1,000 in cash.
At the suppression hearing, Evans conceded that the officers had probable cause to
believe that marijuana was in the apartment. Id. at 103. 2 He argued, however, that his consent,
as well as his mother’s, should be deemed invalid because the officers entered their apartment
without a proper showing of exigent circumstances. According to Evans, the police, by
announcing their presence and their awareness of a heavy odor of marijuana, created the
exigency wholly by police action. Evans concluded the suppression argument with the assertion
that the police officers “wholly set up” the circumstances in which “foreseeable evidence would
be destroyed.” 3
Evans cited United States v. Mowatt, 513 F.3d 395 (4th Cir. 2008), as authority for his
position. Evans failed to mention, however, that the United States Supreme Court in Kentucky
v. King, 563 U.S. 452, ___, 131 S. Ct. 1849, 1859-62 (2011), expressly rejected Mowatt, along
with a host of other lower court opinions that adopted the so-called “police-created exigency
doctrine” and expanded the exceptions to exigent circumstances beyond “actual or threatened
2
Notwithstanding this concession, the trial court’s letter opinion suggested that probable
cause to enter the apartment did not exist because the “patrol officers could not localize the
marijuana smell to a person.” J.A. at 29 (relying on a flawed interpretation of Bunch v.
Commonwealth, 51 Va. App. 491, 658 S.E.2d 724 (2008), which involved a warrantless arrest of
an individual rather than a warrantless entry into a premises). We need not discuss this issue
further because Evans conceded on appeal that he does not challenge probable cause in this case.
See Appellant’s Br. at 10; Oral Argument Audio at 3:51 to 3:56.
3
Evans specifically addressed the degree of urgency factor that courts consider when
determining the existence of exigent circumstances. The “degree of urgency involving the
amount of time necessary to obtain a search warrant,” Evans admitted, “[is] no more or no less
than any other case.” Evans thus conceded that this factor did “not lean one way or the other.”
3
violation[s] of the Fourth Amendment” by police. Neither the Commonwealth nor the trial court
corrected Evans on this point.
The trial court denied Evans’ motion to suppress, holding that his consent, as well as his
mother’s, was voluntarily and freely given. Evans then made a conditional plea of guilty to
charges of cocaine distribution and unlawful possession of a firearm while in possession of
cocaine. The guilty pleas were conditioned upon the preservation of Evans’ right to appeal the
trial court’s adverse ruling on his motion to suppress.
In a per curiam order, a judge of the Court of Appeals denied Evans’ petition for appeal,
stating that “on this record, we cannot say the trial court’s factual finding that appellant
voluntarily consented to the search was plainly wrong.” Evans v. Commonwealth, Record No.
1965-13-1, slip op. at 4 (Apr. 24, 2014) (unpublished). Upon further review, a three-judge panel
of the Court of Appeals agreed that the petition for appeal should be denied. Evans v.
Commonwealth, Record No. 1965-13-1, slip op. at 1 (July 22, 2014) (unpublished). Evans now
appeals to us, claiming both the trial court and the Court of Appeals erred.
II.
We see no need to address the attenuation principle as it relates to consensual searches.
See generally Warlick v. Commonwealth, 215 Va. 263, 267, 208 S.E.2d 746, 749 (1974) (finding
connection between the illegality and consensual confession “so attenuated . . . as to dissipate the
taint”). In this case, there was no predicate illegality. Probable cause and exigent circumstances
authorized the warrantless entry by the officers into the apartment — thus undermining the
essential first premise of Evans’ challenge to the validity of the later consensual search. 4
4
It is particularly unnecessary to address the voluntariness of Evans’ consent, because
consent given by Evans’ mother, if voluntary, would be sufficient to authorize the entry. See
Georgia v. Randolph, 547 U.S. 103, 122-23 (2006). In this case, the trial court found that the
4
A.
No fixed legal definition fully captures the meaning of exigent circumstances. Police
officers find themselves in a myriad of situations with varied fact patterns. No court could
provide an exhaustive enumeration of factors that would distinguish circumstances that qualify
as exigent from those that would not. 5 The best that we can do is to consider a few
commonalities and then make a practical, commonsense judgment.
One rather obvious commonality is that someone with illegal drugs would prefer not to
be caught with them. That desire is at its apogee when the police are right on the verge of doing
just that. Scores of cases have observed that one possessing illegal drugs in an apartment or
home would quite likely try to get rid of them upon realizing that the police are at the front door
inquiring about the distinct odor of the drugs coming from inside. 6
consent given by Evans’ mother was voluntary, based in no small part on the fact that she “knew
how to say no to a policeman” when “she shut the door in [the officer’s] face twice and tried to
do it a third time.” See generally Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)
(observing that, absent a misapplication of law, consent is a factual question best answered by
the trial judge as factfinder).
5
While noting several relevant factors to consider, we have traditionally disclaimed any
effort “to formulate a final and comprehensive list of all exigent circumstances which might
justify a warrantless entry.” Verez v. Commonwealth, 230 Va. 405, 410, 337 S.E.2d 749, 753
(1985). Consistent with this case, two of the illustrative factors identified in Verez include “the
officers’ reasonable belief that contraband is about to be removed or destroyed” and
“information that the possessors of the contraband are aware that the police may be on their
trail.” Id.
6
See, e.g., United States v. Tobin, 923 F.2d 1506, 1511 (11th Cir. 1991); State v. Decker,
580 P.2d 333, 336 (Ariz. 1978); Mendez v. People, 986 P.2d 275, 282 (Colo. 1999); Murphy v.
State, 898 So. 2d 1031, 1034-36 (Fla. Dist. Ct. App. 2005); People v. Pierini, 664 N.E.2d 140,
144 (Ill. App. Ct. 1996); Posey v. Commonwealth, 185 S.W.3d 170, 173 (Ky. 2006); State v.
Brisban, 809 So. 2d 923, 928-29 (La. 2002); Gorman v. State, 897 A.2d 242, 252-53 (Md. Ct.
Spec. App. 2006); State v. Rodriguez, 945 A.2d 676, 681-83 (N.H. 2008); State v. Luong, 977
N.E.2d 1075, 1081-82 (Ohio Ct. App. 2012); State v. Hughes, 607 N.W.2d 621, 628 (Wis.
2000); Rideout v. State, 122 P.3d 201, 207-08 (Wyo. 2005); cf. United States v. Moses, 540 F.3d
263, 271 (4th Cir. 2008); United States v. Esparza, 162 F.3d 978, 980 (8th Cir. 1998); United
States v. Vasquez, 638 F.2d 507, 531-32 (2d Cir. 1980).
5
The Fourth Circuit Court of Appeals has twice addressed this exact scenario. In United
States v. Grissett, 925 F.2d 776 (4th Cir. 1991), uniformed police officers knocked on a door of a
motel room and identified themselves as police. When the door opened, they “smelled the odor
of marijuana wafting through the open doorway” of the motel room. Id. at 778. Because it was
obvious that everyone in the room now knew the police were aware of the marijuana, it was
equally obvious to the officers that the moment they closed the door, those in the room would do
whatever they could to get rid of any illegal drugs they possessed. The officers then entered the
motel room and discovered marijuana and cocaine.
In response to the assertion that exigent circumstances did not justify the warrantless
entry, the Fourth Circuit flatly disagreed. “Exigent circumstances can arise when the evidence
might be destroyed before a search warrant could be obtained.” Id. Because the “police had
identified themselves” to the occupants of the room, “an officer could reasonably conclude that
the occupants of the room would attempt to dispose of the evidence before the police could
return with a warrant. This is especially true in the case of an easily disposable substance like
drugs.” Id. After all, Grissett emphasized, police officers need not “produce concrete proof that
the occupants of the room were on the verge of destroying evidence; rather, the proper inquiry
focuses on what an objective officer could reasonably believe.” Id.
The Fourth Circuit reiterated the Grissett holding in United States v. Cephas, 254 F.3d
488, 496 (4th Cir. 2001). In that case, an officer knocked on the door of an apartment. When it
opened, the officer smelled a strong odor of marijuana coming from the apartment. The person
opening the door tried to slam it shut when the officer asked to come inside and speak with him.
The officer forced his way in and discovered (as in our case) marijuana, cocaine, and firearms.
Id. at 490-91.
6
The Fourth Circuit in Cephas identified the dispositive facts: The occupant was “aware
that a police officer was on his doorstep,” and “marijuana is readily destructible.” Id. at 496.
Reversing the district court, the Fourth Circuit held as a matter of law that the police officer
could have “reasonably believed that the marijuana would have been destroyed had he waited for
a warrant. These reasons alone would have justified his warrantless entry.” Id. (emphasis
added).
B.
In this case, two facts establish exigent circumstances prior to the officers’ entry into the
apartment: first, the cloud of heavy and extremely strong marijuana odors, some of which blew
through the open doorway “like a gust of wind,” and, second, the contemporaneous knowledge
of Evans' mother that the investigating officers at her doorway smelled the marijuana, which
would naturally give her a potent incentive to destroy, discard, or hide the illegal drug (or ask
others to do so) soon after she closed the door. By themselves, these facts establish exigent
circumstances based upon Grissett, Cephas, and a host of analogous cases. See supra note 6. 7
Those facts, while sufficient in themselves, are not the only facts in this case
demonstrating exigent circumstances prior to the officers’ entry into the apartment. After one of
the officers explained to Evans’ mother that they smelled marijuana coming from the apartment
window (even as the odor continued to pour through the doorway), she slammed the door in his
face. She was noticeably shaking and nervous as she did so.
7
In response, Evans relies on United States v. Ramirez, 676 F.3d 755 (8th Cir. 2012).
See Oral Argument Audio at 5:58 to 6:24, 12:14 to 12:48. He cites Ramirez as an example of
“mere supposition” posing as exigent circumstances. Appellant’s Br. at 13. Evans fails to
appreciate that, in Ramirez, there was no evidence that the occupants of the room knew the
police were actively investigating their crimes. Ramirez, 676 F.3d at 763 (“There is no evidence
supporting the inference that these men knew the police were tracking them at all, which might
lend credence to that line of reasoning as it relates to the imminent destruction of evidence.”).
7
If the officers had made up the assertion without any basis simply to provoke her,
slamming the door would have been an understandable nonverbal rebuke. But given that
everyone at the doorway, including Evans’ mother, could simultaneously smell the odiferous
cloud of marijuana, her statement, “Ain’t nobody smoking weed in here,” was little more than an
unintentional apophasis worthy of the Bard’s retort: “The Lady doth protest too much,
methinks.” 8
Her inept remark, followed by slamming the door, implied that Evans’ mother knew the
police officers were aware that marijuana was present in the apartment, and she needed a little
time and privacy to do something about the problem. See, e.g., United States v. Urrego de Soto,
885 F.2d 354, 368 (7th Cir. 1989) (finding exigent circumstances and holding that the threat of
destruction of evidence justified a warrantless entry of an apartment when the occupant
responded to an officer’s knock and identification by “attempt[ing] to slam the door in [the
officer’s] face”). 9
Equally telling is the fact that Evans’ nervous and shaking mother waited about five
minutes before opening the door following the third knock. During that time frame, one of the
officers heard movement, though he did not know who was moving about or what was being
moved. Evans’ mother had promptly answered the door twice before; why would she not do so
on the third occasion? Perhaps Evans’ mother was simply tired of talking to the police. But the
8
William Shakespeare, Hamlet, act 3, sc. 2 (1606).
9
See also United States v. Moreno, 701 F.3d 64, 74-75 (2d Cir. 2012) (finding that
“‘suddenly and forcefully’ attempting to slam shut a door [appellant] had just opened . . . raised a
legitimate concern that she would attempt to destroy or discard the drugs”); Cephas, 254 F.3d at
496; United States v. Scroger, 98 F.3d 1256, 1258-60 (10th Cir. 1996); People v. Baker, 813
P.2d 331, 333 (Colo. 1991); State v. Pool, 652 P.2d 254, 256-57 (N.M. Ct. App. 1982).
8
more realistic hypothesis is that she was informing her son (who she later said had been smoking
a marijuana blunt at the time) of the presence of the police at the front door.
The conspicuously delayed response of Evans’ mother, coupled with unspecific sounds of
movement, contributes to the totality of facts demonstrating exigent circumstances. See, e.g.,
United States v. Aguirre, 664 F.3d 606, 612 (5th Cir. 2011) (finding that the lack of response
when the officers knocked and announced themselves followed by noises inside the home
contributed to the totality of exigent circumstances); Cherry v. Commonwealth, 44 Va. App. 347,
368, 605 S.E.2d 297, 307 (2004) (holding that unidentified “significant movement” heard inside
the house was an additional fact contributing to the totality of exigent circumstances). 10
Contesting this conclusion, Evans argues that a factually anemic “mere supposition” of
exigent circumstances should be disregarded. See Appellant’s Br. at 13. We agree. But that
does not mean that irrefutable proof, or anything even close to that, is required. A far lower
standard applies. Under settled law, “an exigent circumstance exists justifying such an entry
where the law enforcement officers have probable cause to believe that it is necessary to prevent
destruction of evidence.” Keeter v. Commonwealth, 222 Va. 134, 141, 278 S.E.2d 841, 846
(1981). “If they had probable cause so to believe, their entry was justified.” Id.
When used as a standard of calibrating certitude, “[t]he very phrase ‘probable cause’
confirms that the Fourth Amendment does not demand all possible precision.” Herring v. United
States, 555 U.S. 135, 139 (2009). To be sure, probable cause is “less demanding than a standard
requiring a preponderance of the evidence,” United States v. Ortiz, 669 F.3d 439, 446 (4th Cir.
10
On brief, Evans claims that his argument against exigent circumstances in this case
finds support in Johnson v. United States, 333 U.S. 10 (1948). Evans adds that King “reaffirmed
the continued validity of the holding in Johnson.” Appellant’s Br. at 12. Evans overlooks,
however, that King distinguished Johnson as “simply not a case about exigent circumstances.”
King, 563 U.S. at ___ n.5, 131 S. Ct. at 1861 n.5.
9
2012), and “does not demand any showing that such a belief be correct or more likely true than
false,” Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality opinion).
Thus, “the proper inquiry focuses on what an objective officer could reasonably believe.”
Grissett, 925 F.2d at 778; see also Cephas, 254 F.3d at 496 (holding that it was sufficient that the
officer “reasonably believed that the marijuana would have been destroyed”). As Professor
Bacigal has explained, courts “must assess the probability that someone will act to destroy the
evidence. If the defendant himself has the power to destroy the evidence, the courts assume that
he is likely to avail himself of the opportunity.” Ronald J. Bacigal, Virginia Practice: Criminal
Procedure § 4:22, at 119-20 (2014-2015 ed.). In this respect, the certitude of probable cause is
measured by a “flexible, common-sense standard.” Brown, 460 U.S. at 742. 11
C.
Finally, we must address Evans’ assertion in the trial court that the police, by announcing
their presence and their awareness of a heavy odor of marijuana, created the exigency wholly by
police action, which, Evans concluded, “wholly set up” the circumstances in which “foreseeable
evidence would be destroyed.” 12 This argument, after having gained some traction among lower
11
We acknowledge the concern expressed by the dissent for our use of the word
“hypothesis” in this context. See Post at 14, 24. A “hypothesis,” however, is simply a
“supposition based on evidence but not proved; a proposed explanation, supported by evidence,
that serves as a starting point for investigation.” Black’s Law Dictionary 861 (10th ed. 2014)
(emphasis added). It is an apt word to describe the conceptual structure of probable cause. See,
e.g., United States v. Shepherd, 714 F.2d 316, 323 (4th Cir. 1983) (noting that the police
officer’s investigatory “hypothesis” justifying “probable cause” was “proved correct”). The
word tells us nothing, of course, about the level of certitude that must accompany the
“supposition based on evidence,” Black’s Law Dictionary at 861, but settled law does. The
threshold level of certitude is less than a preponderance of the evidence, supra at 9-10, and
“requires only a probability or substantial chance” that the hypothesis is correct, “not an actual
showing” that it is in fact correct. Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983).
12
The trial court’s letter opinion stated that “[f]or purposes of the [suppression] motion,”
J.A. at 29, the court would treat the officers’ entry as illegal. The Court of Appeals noted, but
did not expressly address, this question. It is unclear whether either court agreed with Evans'
10
courts, was expressly rejected by King, 563 U.S. at ___, 131 S. Ct. at 1859-62. Writing for an
eight-member majority in King, Justice Alito explained:
[I]n the vast majority of cases in which evidence is destroyed by
persons who are engaged in illegal conduct, the reason for the
destruction is fear that the evidence will fall into the hands of law
enforcement. Destruction of evidence issues probably occur most
frequently in drug cases because drugs may be easily destroyed by
flushing them down a toilet or rinsing them down a drain. Persons
in possession of valuable drugs are unlikely to destroy them unless
they fear discovery by the police. Consequently, a rule that
precludes the police from making a warrantless entry to prevent the
destruction of evidence whenever their conduct causes the
exigency would unreasonably shrink the reach of this well-
established exception to the warrant requirement.
Id. at ___, 131 S. Ct. at 1857.
It must be remembered, King reiterated, “[t]he ultimate touchstone of the Fourth
Amendment is ‘reasonableness.’” Id. at ___, 131 S. Ct. at 1856 (quoting Brigham City v. Stuart,
547 U.S. 398, 403 (2006)). On the issue of warrantless entries, “the Fourth Amendment’s text
endorses no absolutes. It instead condemns only ‘unreasonable’ searches and seizures.” Kyer,
45 Va. App. at 480, 612 S.E.2d at 217. The Fourth Amendment, after all, does not expressly
require warrants. Rather it implies a “presumption” that “a warrant must generally be secured.”
King, 563 U.S. at ___, 131 S. Ct. at 1856. This rebuttable presumption can be “overcome” by
judicially recognized “reasonable exceptions.” Id. This point is not a rhetorical digression — it
is central to this case. Plainly put, “warrantless searches are allowed when the circumstances
theory of a police-created exigency or simply assumed it arguendo. For our purposes, it does not
matter. Appellate courts do “not review lower courts’ opinions, but their judgments.” Jennings
v. Stephens, ___ U.S. ___, ___, 135 S. Ct. 793, 799 (2015). A lower court’s judgment, if legally
correct, will be affirmed even if we were to disagree with the lower court’s legal reasoning.
Perry v. Commonwealth, 280 Va. 572, 580, 701 S.E.2d 431, 436 (2010). For over a century,
Virginia has followed “the settled rule” that however erroneous “may be the reasons of the court
for its judgment upon the face of the judgment itself, if the judgment be right, it will not be
disturbed on account of the reasons.” Schultz v. Shultz, 51 Va. (10 Gratt.) 358, 384 (1853).
11
make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant
requirement.” Id. at ___, 131 S. Ct. at 1858.
Applying these principles, King specifically addressed whether the exigent circumstances
rule “applies when police, by knocking on the door of a residence and announcing their presence,
cause the occupants to attempt to destroy evidence.” Id. at ___, 131 S. Ct. at 1854. The lower
court in King had adopted a version of the police-created exigency theory, holding that “the
exigent circumstances rule does not apply in the case at hand because the police should have
foreseen that their conduct would prompt the occupants to attempt to destroy evidence.” Id. The
Supreme Court’s response to this view was unequivocal: “We reject this interpretation of the
exigent circumstances rule.” Id.
King explained that the judicial “adoption of a reasonable foreseeability test would . . .
introduce an unacceptable degree of unpredictability” when officers knock on the doors of those
suspected to possess drugs because there is always a “possibility that the occupants may possess
drugs and may seek to destroy them.” Id. at ___, 131 S. Ct. at 1859. Under such a test, it would
then “be necessary to quantify the degree of predictability that must be reached before the police-
created exigency doctrine comes into play,” creating “unacceptable and unwarranted difficulties
for law enforcement officers who must make quick decisions in the field.” Id. at ___, 131 S. Ct.
at 1859-60.
King stated that some lower courts had “fault[ed] law enforcement officers if, after
acquiring evidence that is sufficient to establish probable cause to search particular premises, the
officers do not seek a warrant but instead knock on the door and seek either to speak with an
occupant or to obtain consent to search.” Id. at ___, 131 S. Ct. at 1860. King rejected this
approach because it “unjustifiably interferes with legitimate law enforcement strategies” and
12
fails to appreciate that “[t]here are many entirely proper reasons why police may not want to seek
a search warrant as soon as the bare minimum of evidence needed to establish probable cause is
acquired.” Id.
In short, Evans’ argument in the trial court was simply a rhetorical restatement of the
same police-created exigency theories rejected by King. The argument erroneously leads Evans
to discount the exigent circumstances existing prior to the officers’ entry into his apartment. 13
Under King, the exigent circumstances rule cannot be truncated in this manner.
It is true, as Evans contends, that a mere knock by police on the door of a suspect’s
residence, by itself, does not constitute exigent circumstances. This unremarkable point,
however, presupposes the absence of other facts — like those present in this case:
 a cloud of heavy and extremely strong marijuana odors,
some of which blew “like a gust of wind,” past police
officers and Evans’ mother through an open doorway;
 a suspiciously volunteered denial (“Ain’t nobody smoking
weed in here”) by Evans’ nervous and shaking mother in the
face of the obvious fact that police officers smelled
marijuana odors blowing through the doorway;
 a door slammed by Evans’ mother in the face of police
officers in response to their further inquiries;
 sounds of unspecified movement inside the apartment after
the door was slammed shut; and
13
Evans makes the same conceptual error in his efforts to distinguish Grissett and Cherry
from this case. Both opinions adopted the reasonable foreseeability limitation on the exigent
circumstances doctrine, a view Evans explicitly advanced in the trial court and implicitly
advances on appeal. That aspect of Grisset and Cherry was rejected by King, 563 U.S. at ___,
131 S. Ct. at 1859-60. See Grissett, 925 F.2d at 778 (noting that “the officers could not have
known in advance that their conduct would precipitate an emergency involving the probable
destruction of evidence” because they “identified themselves before smelling the marijuana”);
Cherry, 44 Va. App. at 362-63 (quoting the reasoning in Grissett and finding “the exigencies
were not of [the officer’s] own making” because he was investigating an unrelated offense and
did not smell the burning marijuana until after an occupant opened the door).
13
 a conspicuously delayed response by anyone in the
apartment to additional knocks on the door by the
investigating officers.
It is an over-generalization, at best, for Evans to characterize these facts as a mere knock-on-the-
door case.
III.
In sum, both probable cause and exigent circumstances justified the warrantless entry by
the police officers into Evans’ apartment to thwart the objectively reasonable possibility that
evidence would be destroyed, discarded, or hidden if they did not take immediate action. The
trial court did not err in denying Evans’ motion to suppress, and the Court of Appeals did not err
in denying Evans’ petition for appeal.
Affirmed.
JUSTICE MIMS, with whom JUSTICE GOODWYN and SENIOR JUSTICE MILLETTE join,
dissenting.
Today, the majority permits the government to dispense with the constitutional
requirement to obtain a warrant before entering a private residence if law enforcement officers
have probable cause to suspect criminal activity, make contact with an occupant, and announce
their suspicions before entering.
The majority grounds this holding on a “hypothesis”: if occupants possess evidence and
know that officers suspect criminal activity, they will immediately take steps to destroy the
evidence. However, hypotheses do not satisfy “the fact-specific nature of the reasonableness
inquiry” under the Fourth Amendment. Because the Fourth Amendment requires a warrant to
enter a private residence in this context, I must dissent.
14
I. Background
“[E]ach case of alleged exigency” that would justify a warrantless entry turns “on its own
facts and circumstances.” Missouri v. McNeely, ___ U.S. ___, ___, 133 S. Ct. 1552, 1559
(2014) (internal quotation marks and citation omitted). An officer’s subjective motivation or
intent is irrelevant to determining whether the Fourth Amendment has been violated. See
Brigham City v. Stuart, 547 U.S. 398, 405 (2006) (“It therefore does not matter here . . . whether
the officers entered the kitchen to arrest respondents and gather evidence against them or to
assist the injured and prevent further violence.”). The circumstances, viewed objectively, must
justify the officer’s actions. Id. at 404; see Keeter v. Commonwealth, 222 Va. 134, 141, 278
S.E.2d 841, 846 (1981). The facts are not in dispute.
On May 22, 2013, while on uniformed bike patrol in Norfolk’s Denby Park
neighborhood, Officers Hathaway, Giraudo, and O’Rourke noticed a strong marijuana odor
apparently coming from an open window on the second floor of an apartment building. The
officers decided to investigate. They tried to open the front door of the building, expecting it to
open into a common interior hallway with two upstairs and two downstairs apartments. The door
was locked, however, so Officer O’Rourke knocked.
Alice Evans, the defendant’s mother, answered the door. The officers explained that they
were investigating the marijuana odor that appeared to be coming from the building. The
officers also asked about the building’s layout. Ms. Evans explained that, unlike the other
apartment buildings in the complex, the building contained only a single, two-story apartment.
Then, she closed the door.
Officer Giraudo walked around to the rear of the apartment, under the open window,
where he observed the odor of marijuana again. After Officer Giraudo circled back to the front
15
of the apartment, Officer O’Rourke knocked a second time. Ms. Evans opened the door, and
Officer O’Rourke told her that the officers could smell marijuana coming from the apartment.
Ms. Evans stated: “Ain’t nobody smoking weed in here.” Then, she quickly closed the door. As
she closed the door, Officer Hathaway smelled the odor of marijuana coming from the
apartment.
Officer Giraudo knocked next. Ms. Evans was slow to respond — about five minutes
passed before she opened the door. During this time, the officers heard “normal movement”
inside the apartment. When she opened the door and saw the officers, she immediately tried to
close the door a third time. Officer Hathaway put his hand on the door and placed his foot inside
the apartment to prevent her from closing the door. As he did, he told Ms. Evans that “she
couldn’t close the door on [the officers].” Officer Giraudo told Ms. Evans that he was “coming
in to continue [the] investigation.”
At this time, Officer Giraudo and Officer O’Rourke were standing in front of Officer
Hathaway as he propped the door open with his hand and foot. As Officer Giraudo entered the
apartment, he saw a person running up the stairs to the second floor and he gave pursuit.
On the second floor, Officer Giraudo encountered the defendant, Tevin Gary Evans
(“Evans”) — who was not the person he had pursued — coming out of a bedroom. He drew his
gun and directed Evans to show his hands, turn away, and walk backwards towards him. Officer
Hathaway then handcuffed Evans.
Additional officers arrived. These officers detained the Evanses and other individuals
from the apartment downstairs while Officers Hathaway, Giraudo, and O’Rourke performed a
protective sweep. While checking underneath a bed for additional persons, Officer Hathaway
16
observed what appeared to be marijuana residue on the floor. In the other bedroom, Officer
Hathaway observed a still-smoking marijuana blunt on the floor.
After the officers completed the sweep, Officer Giraudo took Ms. Evans outside and
asked her if there was any marijuana in the apartment. Ms. Evans conceded that there was and
offered to retrieve it. Then Officer Giraudo asked her if there were other illegal narcotics in the
apartment. Ms. Evans stated that there were not. Around this time, Officer Hathaway contacted
the narcotics division.
Investigator Goins responded to the call. When Goins arrived, Evans was in handcuffs,
and there were four or five officers inside the apartment. First, Goins approached Ms. Evans and
explained that “based on the circumstances,” including the marijuana odor, there may be
probable cause to obtain a search warrant. Goins then asked for permission to search the
apartment, and Ms. Evans verbally gave her consent. Next, Goins approached Evans, who was
still handcuffed, and explained the “situation” to him. When Goins asked for permission to
search the apartment, Evans verbally gave his consent. Goins produced a consent form that
Evans and his mother signed. 1
After obtaining their signatures, Goins searched the apartment. During the search, he
recovered several grams of crack cocaine, morphine pills, packaging material, three loaded
firearms, ammunition, and $1,202 in currency. Goins also recovered a receipt, a summons, and
mail linking the items to Evans. After the search was complete, officers placed Evans under
1
The consent form stated:
I, Alice Evans and Tevin Evans, having been informed of my right to refuse to have a
search made of my property hereinafter mentioned do hereby authorize Vice & Narcotics
Division Investigators members of the Norfolk Police Department, to conduct a search of my
property located at 374 Fort Worth Ave Apt. 2.
This written permission is given by me to the above named officer voluntarily and
without threats or promises of any kind.
17
arrest.
II. Analysis
A. Fourth Amendment Principles
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be
seized.
U.S. Const. amend. IV. It “protects persons against unreasonable searches of ‘their persons
[and] houses’” by the government. Minnesota v. Carter, 525 U.S. 83, 88 (1998) (alteration in
original).
The Fourth Amendment “draw[s] a firm line at the entrance to the house.” Payton v.
New York, 445 U.S. 573, 590 (1980); Verez v. Commonwealth, 230 Va. 405, 410, 337 S.E.2d
749, 752 (1985). That line “must be not only firm but also bright.” Kyllo v. United States, 533
U.S. 27, 40 (2001). Indeed, “‘[a]t 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 governmental intrusion.’”
Id. at 31 (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)). Thus, “[i]t is a ‘basic
principle of Fourth Amendment law . . . that searches and seizures inside a home without a
warrant are presumptively unreasonable.’” Kentucky v. King, 563 U.S. 452, ___, 131 S. Ct.
1849, 1856 (2011) (quoting Stuart, 547 U.S. at 403).
Nonetheless, the Fourth Amendment’s warrant requirement “is subject to certain
reasonable exceptions.” Id. For example, officers may enter a home without a warrant to
provide emergency assistance, when they are in “hot pursuit,” and to prevent the imminent
destruction of evidence. See id. (collecting cases); Verez, 230 Va. at 410-11, 337 S.E.2d at 753
18
(listing examples of exigent circumstances). These exceptions are narrowly drawn, however,
and as noted, the circumstances must objectively justify the warrantless entrance. United States
v. United States Dist. Ct., 407 U.S. 297, 318 (1972) (citing Katz v. United States, 389 U.S. 347,
357 (1967)).
When officers lack a warrant, they must have “probable cause plus exigent
circumstances in order to make a lawful entry into a home.” Kirk v. Louisiana, 536 U.S. 635,
638 (2002). In this case, for exigent circumstances to exist, “law enforcement officers [must]
have probable cause to believe that it is necessary to prevent destruction of evidence.” Keeter,
222 Va. at 141, 278 S.E.2d at 846.
The United States Supreme Court recently defined the scope of the exigent
circumstances exception in Kentucky v. King, which directs the analysis of this case. When the
government alleges that exigent circumstances justify a warrantless entry, the question is
whether the officers “engag[ed] or threaten[ed] to engage in conduct that violates the Fourth
Amendment” before the exigency arose. King, 563 U.S. at ___, 131 S. Ct. at 1858. If so, the
exigent circumstances exception will not justify a warrantless search. See id.
When a claimed exigency cannot justify a warrantless search, the Fourth Amendment is
violated. In such cases, the remedy is to exclude the evidence obtained through the violation:
In order to make effective the fundamental constitutional
guarantees of sanctity of the home and inviolability of the
person, . . . this Court held nearly half a century ago that evidence
seized during an unlawful search could not constitute proof against
the victim of the search.
Wong Sun v. United States, 371 U.S. 471, 484 (1963) (citations omitted). “The exclusionary rule
prohibits introduction into evidence of tangible materials seized during an unlawful search.”
Murray v. United States, 487 U.S. 533, 536 (1988) (citation omitted). It “also prohibits the
19
introduction of derivative evidence, both tangible and testimonial, that is the product of the
primary evidence, or that is otherwise acquired as a direct result of the unlawful search, up to the
point at which the connection with the unlawful search becomes ‘so attenuated as to dissipate the
taint.’” Id. at 536-37 (quoting Nardone v. United States, 308 U.S. 338, 341 (1939)).
Even the voluntary acts of the accused — such as giving consent — may be “insufficient
to cure the otherwise unlawful acquisition of evidence.” Wong Sun, 371 U.S. at 486 n.12
(citations omitted). Thus, even if the Commonwealth proves that the occupants consented to a
search, the Commonwealth must still establish that the given consent was “sufficiently an act of
free will to purge the primary taint” of an unlawful, warrantless search. Id. at 486; see also
Harris v. Commonwealth, 266 Va. 28, 34, 581 S.E.2d 206, 210 (2003).
With these bedrock principles in mind, I turn to whether exigent circumstances existed
when the officers crossed Ms. Evans’ threshold, thereby obviating the requirement for a warrant.
B. Exigent Circumstances
The majority asserts that two facts establish exigent circumstances before the officers’
entry into the apartment: (1) the odor of marijuana and (2) “the contemporaneous knowledge of
Evans’ mother that the investigating officers at her doorway smelled the marijuana.” It reasons
that Ms. Evans’ awareness of the police created the incentive to destroy any evidence of
marijuana in the residence, and therefore, the police were justified in entering the residence
without a warrant.
However, the odor of marijuana alone does not create an exigency. The odor merely
provided the officers with probable cause to suspect that marijuana was in the apartment. See
Welsh v. Wisconsin, 466 U.S. 740, 753 (1984) (“[N]o exigency is created simply because there
is probable cause to believe that a serious crime has been committed.”). Probable cause to
20
believe that a crime is being committed is not sufficient to permit the police to enter a private
residence; there must also be exigent circumstances. To rely on the imminent destruction of
evidence as justification for a warrantless entry, the police must have probable cause to believe
that evidence will be destroyed. See Keeter, 222 Va. at 141, 278 S.E.2d at 846.
The majority’s position leads inexorably to the conclusion that police may enter a
residence without a warrant provided the officers announce to the occupants that they suspect
criminal activity is occurring. The majority reasons that once the occupants of a residence know
that the police are at the door and suspect them of a crime, they will “naturally [have] a potent
incentive to destroy” any evidence of the crime that they can. In so reasoning, the majority
broadens the previously-narrow exigent circumstances exception and gives too little weight to
the fact-specific inquiry required by the United States Supreme Court. See McNeely, ___ U.S. at
___, 133 S. Ct. at 1559 (explaining that courts must employ the “finely tuned approach” of
considering the “totality of the circumstances” to determine “whether a law enforcement officer
faced an emergency that justified acting without a warrant” because “the police action at issue
lacks the traditional justification that a warrant provides.”).
The Fourth Amendment does not allow the government to create a Hobson’s choice for
individuals who wish to stand upon their right to exclude officers from their home by arguing
that doing so justifies a warrantless search. In other words, when the police announce their
presence, an occupant who refuses to allow the officers to enter does not thereby vitiate his
constitutional right to do so. See Lefkowitz v. Cunningham, 431 U.S. 801, 807-08 (1977) (the
government cannot force a citizen to give up one constitutional right “as the price for exercising
another”). The mere fact that an occupant is aware of the officers’ presence does not create an
exigent circumstance. See King, 563 U.S. at ___, 131 S. Ct. at 1862.
21
In King, officers observed a controlled buy of crack cocaine outside an apartment
complex and pursued the suspect into the breezeway of the complex. Id. at ___, 131 S. Ct. at
1854. As the officers entered the breezeway, they heard a door close and detected the odor of
marijuana. At the end of the breezeway were the doors to two apartments. The officers did not
know which apartment the suspect had entered.
The officers smelled marijuana smoke coming from the apartment on the left. They
knocked loudly on that door and identified themselves as police. Immediately, the officers heard
people moving and shifting things around, and they concluded that “drug-related evidence was
about to be destroyed.” They kicked in the door, conducted a protective sweep, and observed
marijuana and cocaine in plain view. A subsequent search recovered crack cocaine, cash, and
drug paraphernalia. The defendant argued that the officers had created the exigency by
announcing their presence, and they therefore could not rely on that exigency to justify the
warrantless entry. Id. at ___, 131 S. Ct. at 1854-55.
The Court assumed, arguendo, that an exigency existed under these circumstances, and
focused its analysis on whether the officers had created the presumed exigency by violating or
threatening to violate the Fourth Amendment before entering the apartment. Id. at ___, 131 S.
Ct. at 1862-63. In concluding that the officers had not created the exigency, the Court observed
that the record was devoid of any evidence the officers demanded entry to the apartment before
circumstances led them to conclude that evidence would be destroyed. Id. at 1863. In fact, the
Court found that the officers did not inform the occupants they were going to enter the apartment
until after the officers heard noises leading them to believe the occupants would imminently
destroy evidence. Id. The Court then remanded the case to the Supreme Court of Kentucky for
the fact-specific inquiry regarding whether exigent circumstances genuinely existed when the
22
officers made their warrantless entry. Id. at ___, 131 S. Ct. at 1864; King v. Commonwealth,
386 S.W.3d 119, 120 (Ky. 2012) (King II).
Significantly, on remand, the Supreme Court of Kentucky concluded that the facts did not
support the officers’ subjective belief that evidence was about to be destroyed. King II, 386
S.W.3d at 123. The court observed that the officers failed to articulate any specific sounds that
led them to believe that the occupants were about to destroy evidence. Id. at 122. Rather, “the
sounds as described at the suppression hearing were indistinguishable from ordinary household
sounds.” Id. In other words, the officers in King, as the officers in this case, heard only “normal
movement” and could not point to any facts creating more than “a possibility” that the occupants
would destroy evidence. Id. at 123.
The Supreme Court in King did not suggest that an exigency arises whenever an occupant
has “contemporaneous knowledge” of officers at his door who suspect that criminal activity is
afoot. To the contrary, the Court clearly stated that officers do not have carte blanche to enter
upon announcing their presence, even if they have probable cause to suspect criminal activity:
When law enforcement officers who are not armed with a warrant
knock on a door, they do no more than any private citizen might
do. And whether the person who knocks on the door and requests
the opportunity to speak is a police officer or a private citizen, the
occupant has no obligation to open the door or to speak. . . . When
the police knock on a door but the occupants choose not to respond
or to speak, the investigation will have reached a conspicuously
low point, and the occupants will have the kind of warning that
even the most elaborate security system cannot provide. . . . And
even if an occupant chooses to open the door and speak with the
officers, the occupant need not allow the officers to enter the
premises and may refuse to answer any questions at any time.
King, 563 U.S. at ___, 131 S. Ct. at 1862 (internal quotation marks and citations omitted)
(emphasis added). The Court then stated that officers may enter a residence under the exigent
23
circumstances exception when occupants “elect to attempt to destroy evidence.” Id. 2
The majority cites additional circumstances to support its conclusion that the officers had
probable cause to believe the occupants would imminently destroy evidence of marijuana use
before they entered the apartment. The majority points to the fact that Ms. Evans appeared
nervous. It notes that she denied anyone was smoking marijuana in the house and slammed the
door after answering the officers’ questions and responding to their accusations. 3 Finally, the
majority observes that it took nearly five minutes for Ms. Evans to answer the door after the third
knock. It posits that the most “realistic hypothesis” is that she was telling her son that the police
were at the door, presumably so that he could destroy any evidence of marijuana in the
apartment. These circumstances, devoid of any additional facts and considered in their totality,
are insufficient to support a probable cause suspicion that the occupants would imminently
destroy evidence.
Probable cause requires facts creating “‘more than [a] bare suspicion’” that an exigency
existed given the specific circumstances at hand. United States v. Ortiz, 669 F.3d 439, 445 (4th
Cir. 2012) (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)). “Exigent
circumstances do not deal with mere possibilities,” and the Commonwealth is required to show
2
The majority relies on United States v. Grissett, 925 F.2d 776, 778 (4th Cir. 1991), and
United States v. Cephas, 254 F.3d 488 (4th Cir. 2001), to support its conclusion that the officers
could enter the residence after Ms. Evans became aware of their presence and suspicions. These
cases were decided before King, which recognizes that officers who pursue investigations in this
manner may give occupants “the kind of warning that even the most elaborate security system
cannot provide.” King, 563 U.S. at ___, 131 S. Ct. at 1862. In the absence of additional,
particularized facts suggesting that the occupants would imminently destroy the evidence, Ms.
Evans’ “contemporaneous knowledge” of the officers’ presence and suspicions is insufficient to
create an exigency.
3
The majority suggests that Ms. Evans “doth protest too much” at the door to her home,
and that somehow this contributed to an exigency. Yet perhaps one cannot protest too
strenuously when the government seeks to enter her home without a warrant and without consent
in violation of the Fourth Amendment. Moreover, her statement was in response to an inquiry
from one of the officers at the door.
24
something more than hypothetical supposition and subjective belief. King II, 386 S.W.3d at 123.
In this case, after the officers spoke with Ms. Evans and learned that the building
contained only one apartment, the record shows that at least one of the officers circled the
apartment while the others stood outside the front door. According to the officers, who knocked
a second time and then a third time, they were outside the apartment with at least one open
window for more than five minutes. Yet they heard only “normal movement.” None of the
officers indicated that they heard Ms. Evans warn the other occupants that the police were
outside; none indicated that they heard noises that would suggest the occupants were destroying
evidence; and none indicated that they observed the occupants destroying evidence or behaving
suspiciously when Ms. Evans opened the door. This is the precise scenario contemplated by
King wherein an occupant “will have the kind of warning that even the most elaborate security
system cannot provide.” 563 U.S. at ___, 131 S. Ct. at 1862 (internal quotation marks and
citation omitted). Ms. Evans chose to stand upon her Fourth Amendment right. There are no
pre-entry facts tending to indicate that she or the other occupants were about to destroy evidence
and thus create an exigency that would justify a warrantless search. 4
4
The officers did not observe the person run to the second floor until they had already
begun to enter the apartment, thereby violating the Fourth Amendment. Officer Hathaway
testified that when he saw the individual begin running, he was holding the door open and
Officers Giraudo and O’Rourke were already in front of him. Officer Giraudo testified that he
did not see the person running until he was entering the apartment.
[Officer Giraudo]: I advised Ms. Evans that I could smell marijuana coming from
her residence, and that I was coming inside to continue my investigation.
[Defense]: Did you inform her of that immediately upon her opening the door?
[Officer Giraudo]: Yes.
[Defense]: So is it at that time you had told her I am coming in whether you want
me to or not?
[Officer Giraudo]: Yes.
25
For these reasons, I conclude that the officers’ subjective belief that the occupants would
imminently destroy evidence is not supported by the record. Therefore, the officers violated the
Fourth Amendment by entering the residence before exigent circumstances arose.
C. Consent
I next consider whether the Evanses’ consent dissipated the taint of the unlawful,
warrantless search such that the evidence recovered during the subsequent search by Investigator
Goins is nonetheless admissible. The majority, by concluding that exigent circumstances
existed, did not reach this question. The inquiry involves two questions: (1) whether the Evanses
gave their consent voluntarily and (2) whether their consent was obtained by “‘means
sufficiently distinguishable to be purged of the primary taint.’” 5 Segura v. United States, 468
U.S. 796, 804-05 (1984) (quoting Wong Sun, 371 U.S. at 488). Ultimately, the second question
asks whether the challenged evidence was obtained as the “product” of the initial unlawful
search. See id. at 815 (citations omitted).
“Voluntariness is a question of fact to be determined from all the circumstances.”
Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973). The circuit court concluded that the
Evanses voluntarily consented to the search conducted by Investigator Goins. In reaching its
...
[Defense]: So as you were stepping in is when you were able to see this
individual?
[Officer Giraudo]: Yes. I heard, you know, foot steps or, you know, on the stairs.
I looked up, and that’s when I saw very quickly someone disappearing off into the apartment.
5
Recently, the United States Supreme Court reiterated that “police officers may search
jointly occupied premises if one of the occupants consents.” Fernandez v. California, ___ U.S.
___, ___, 134 S. Ct. 1126, 1129 (2014). It also explained that Georgia v. Randolph, 547 U.S.
103 (2006) recognized a “narrow exception” to that rule, which provides that “the consent of one
occupant is insufficient when another occupant is present and objects to the search.” Fernandez,
___ U.S. at ___, 134 S. Ct. at 1129. In the present case, I conclude that neither Evans’ consent
nor Ms. Evans’ consent was sufficiently attenuated from the warrantless entry, and therefore,
neither’s consent authorized the subsequent search.
26
conclusion, the circuit court considered the consent form, which both Evans and his mother
signed, that stated they had the right to refuse the search. The circuit court also found no
indication that Investigator Goins coerced the Evanses.
Nevertheless, it is necessary to determine whether such voluntary consent is sufficiently
attenuated to purge the taint of the unlawful encounter and thereby satisfy the Fourth
Amendment. Harris, 266 Va. at 34, 581 S.E.2d at 210; see also Commonwealth v. Robertson,
275 Va. 559, 563, 659 S.E.2d 321, 324 (2008) (the appellate court “must determine
independently whether the manner in which the evidence was obtained meets the requirements of
the Fourth Amendment”). Below, the circuit court and the Court of Appeals blurred the analysis
of voluntariness with the analysis of attenuation. This was error. If voluntary consent —
obtained after an unlawful, warrantless entry — was alone sufficient to purge the taint, “the
exclusionary rule would be substantially diluted.” Brown v. Illinois, 422 U.S. 590, 602 (1975).
Courts must consider the evidence’s “admissibility in light of the distinct policies and interests of
the Fourth Amendment.” Id.; see Harris, 266 Va. at 34, 581 S.E.2d at 210.
The Commonwealth argues that the later search was sufficiently attenuated from the
initial unlawful search. It reasons that the initial entry was not made to obtain consent and the
seized evidence was unrelated to the odor of marijuana that led the officers to investigate in the
first place. The Commonwealth also contends that Investigator Goins’ arrival severed the causal
chain of events. I disagree.
The United States Supreme Court has considered the following factors to determine
whether a voluntary act is sufficiently attenuated from the primary taint: (1) the temporal
proximity between the unlawful action and the voluntary act; (2) the presence of intervening
circumstances; and (3) the purpose and flagrancy of the official misconduct. Brown, 422 U.S. at
27
603-04. This Court has considered similar factors. See Harris, 266 Va. at 33-34, 581 S.E.2d at
210 (concluding that the trial court erred when it denied the defendant’s motion to suppress,
citing the continuous nature of an encounter, circumstances indicating that the defendant was not
free to leave, and the direct relationship between the search and the evidence recovered). No
single factor is determinative, and these factors are not exhaustive.
In this case, the officers obtained consent during a continuous encounter. It is unclear
from the record exactly how much time passed between the initial entry and when the Evanses
gave their consent, but the circuit court found that the interval was “brief.” During the
intervening period, one officer drew his weapon on Evans, another handcuffed him, and four or
five officers entered his home. Immediately thereafter, Officer Hathaway called the narcotics
division. After responding to the scene, Investigator Goins explained the “situation” to a still-
handcuffed Evans. 6 At this point, four or five officers remained in his residence, detaining the
other individuals, including Ms. Evans. These events “flowed one from the other with no
discernable break in the chain of causation.” Davis v. Commonwealth, 37 Va. App. 421, 435,
559 S.E.2d 374, 381 (2002). Further, these circumstances plainly indicate that Evans, with his
hands cuffed behind his back, “was not free to leave or disregard the officer’s inquiry.” Harris,
266 Va. at 34, 581 S.E.2d at 210.
Similar concerns extend the taint to the consent given by Ms. Evans. During the sweep,
the officers detained Ms. Evans, and immediately after the sweep, Officer Giraudo began
questioning Ms. Evans about the presence of marijuana and other drugs in the apartment.
Clearly, Ms. Evans was as much the subject of an investigation as her son. Investigator Goins
6
Investigator Goins did not remove the handcuffs until it was time for Evans to sign the
consent form. Also, the Commonwealth’s argument that the arrival of more police officers
interrupted the chain of events lacks merit.
28
confirmed as much, as he testified that both were actively under investigation when he arrived.
Even though the consent form stated that the Evanses were free to withhold their consent, the
circumstances plainly indicated otherwise. Officers Hathaway, Giraudo, and O’Rourke had
already overrun Ms. Evans’ previous attempts to withhold her consent at the threshold to her
residence. Officer Giraudo had previously told her that she had no choice and that the officers
were “coming in to continue [the] investigation” even though she had refused to speak with
them. Now, under investigation, with numerous police officers in her home, Investigator Goins
offered her a choice between a consensual search and a search pursuant to a warrant. Under
these circumstances, a reasonable person would still feel constrained by the initial warrantless
entry. See Davis, 37 Va. App. at 431, 559 S.E.2d at 379 (“When confronted with an accusation
from police, such as, ‘we know you are selling drugs from this location, let us search you,’ no
reasonable person would feel free to leave.”).
Finally, the Commonwealth’s argument that the seized evidence was unrelated to the
purpose of the entry is unpersuasive. Immediately after the protective sweep, Officer Hathaway
called the narcotics division, and Officer Giraudo began questioning Ms. Evans about the
presence of narcotics besides marijuana in the house. The potential presence of narcotics was the
sine qua non of the officers’ investigation. The unlawful, warrantless entry, during which
officers observed a smoldering marijuana cigarette and marijuana residue, further encouraged the
officers to seek either a warrant or the Evanses’ consent to pursue a more intensive search. For
all these reasons, the Evanses’ consent was the tainted fruit of the unlawful warrantless search.
III. Conclusion
I respectfully dissent. The record is devoid of any facts that create more than a “bare
suspicion” that the occupants would destroy evidence. Thus, there was no exigency that would
29
have justified the officers’ warrantless entry. Because the subsequent consent search was
insufficiently attenuated from the unlawful, warrantless entry, I would reverse the judgment of
the Court of Appeals, vacate Evans’ convictions, and remand the case to the Court of Appeals
with direction that the case be remanded to the circuit court for further proceedings if the
Commonwealth be so advised.
30