Commonwealth v. Charles Joseph Talbert

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Fitzpatrick
Argued by Teleconference
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 1739-96-4 JUDGE JERE M. H. WILLIS, JR.
NOVEMBER 27, 1996
CHARLES JOSEPH TALBERT
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald H. Kent, Judge
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellant.
Richard C. Goemann, Senior Assistant Public
Defender (Office of the Public Defender, on
brief), for appellee.
In this appeal, taken pursuant to Code § 19.2-398, the
Commonwealth contends that the trial court erred when it
suppressed evidence based upon its finding (1) that the police
officers were not in hot pursuit of the defendant when they
followed him into a residence, and (2) that no exigent
circumstances necessitated the officers' entry into the
residence. We agree and reverse the order of suppression.
Talbert contends that the Commonwealth is barred from
raising on appeal the issue whether the evidence established
exigent circumstances necessitating the officers' entry into the
residence. He argues that "the Commonwealth's petition for
appeal did not raise the issue of whether the officers' entry
into the residence was proper because it involved exigent
circumstances necessitating immediate action." The record does
not support this contention. The Commonwealth's petition stated
the question, "Was the evidence properly suppressed where the
officers were in hot pursuit or exigent circumstances were
present?" This question clearly embraces the issue of exigent
circumstances.
On the evening of March 16, 1996, Officer William Bunney,
along with other officers of the Alexandria Police Department,
was engaged in undercover surveillance. At about 6:15 p.m.,
while it was still "light out," Bunney saw two men and a woman
walking north in the 800 block of North Alfred Street. They
stopped at the southeast corner of Alfred and Montgomery Streets,
where they remained "for a period of time[,] looking around."
Then they walked away.
About twenty minutes later, Talbert "came into the area from
the north," accompanied by several other people. Talbert was in
a wheelchair. The group stopped at the same southeast corner and
remained there, just "hanging out." One of the two men who had
previously stopped at the corner returned, accompanied by the
same woman. The woman spoke to Talbert, who then spoke to a man
standing behind him. That man began pushing the wheelchair
north, followed by the man and woman and by two other men from
Talbert's group. They all stopped at an alley on the east side
of the 900 block of North Alfred Street. The two men from
Talbert's group "stayed at the mouth of the alley at the street."
Talbert, the man who was pushing the wheelchair, and the man and
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woman, entered the alley, out of Bunney's view.
Shortly thereafter, Talbert and the others returned from the
alley. The man and woman stood directly beside Talbert, who had
his hands in front of him on his lap. Bunney saw a "very large
rock of crack cocaine in a plastic bag" in Talbert's hand.
Talbert broke a piece from the large chunk and placed it in the
right hand of the man, who was standing beside him. The man
looked at Talbert. The woman began walking toward the mouth of
the alley and the man followed her with the piece of "rock" in
his hand. He stopped momentarily, looked at "the rock" again,
and then left with the woman. Talbert wrapped plastic around the
large rock and placed it on the right side of his body.
Bunney radioed a description of the man and woman to the
other officers and continued to monitor and report their location
so that the officers could arrest them. The officers approached
the man who had acquired the cocaine, but he put the rock in his
mouth and resisted. That cocaine was not recovered.
Looking again, Bunney did not see Talbert or his group at
the entrance to the alley or in the alley itself. He radioed for
the officers in the street to "come into the area quickly,"
because he could no longer locate Talbert. He gave a description
of Talbert and identified him by name.
Bunney then saw a man backing Talbert's wheelchair into the
second house in the 900 block of North Alfred Street, "directly
adjacent off of the alley where the transaction had taken place."
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The man was lifting the wheelchair up the porch steps and was
backing into the house. Bunney did not know who owned the house.
He radioed the location to the officers in the street and
instructed them to arrest Talbert for distribution of cocaine.
He also told them that Talbert "had more dope on him . . . [a]
large rock. . . ." He told the officers to hurry because Talbert
"was being wheeled into the unit."
Officer Ballenger, who knew Talbert by name, and another
officer proceeded to the "second to the end house in the east
side alley of the 900 block." Ballenger saw a man "with his back
to the door" and his hands out in front of him, "walking back
into the house itself." The "exterior" door, which had glass
only for its upper half, was partially obstructing the officer's
view. Ballenger could, however, see "wheels down below the
door." It appeared to him that the man with his back to the
inside of the house was lifting a wheelchair into the house.
Ballenger recognized Talbert's face through the glass portion of
the exterior door.
Ballenger, believing that he had probable cause to arrest
Talbert, got out of the van in which he and the other officer
were traveling and ran to the door. The exterior door was still
"open about a foot" and the inside door was completely open. He
saw Talbert in the living room, still in the wheelchair.
Ballenger announced "Police" in a loud voice, opened the exterior
door, and went inside. Talbert had his right hand behind the man
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who was behind his wheelchair. Ballenger saw something fall "in
the exact place where Mr. Talbert's hand was" located. Ballenger
found a "very large rock of crack cocaine" where the object had
fallen. He then arrested Talbert.
Talbert moved the trial court to suppress as evidence the
rock of crack cocaine found by Ballenger on the ground that the
discovery was the product of an illegal search. He argued that
Ballenger's entry into the house without a search warrant was
presumptively unreasonable and that the circumstances provided no
exception to the warrant requirement. The Commonwealth argued
that Ballenger was in hot pursuit of Talbert and that exigent
circumstances required and justified his warrantless entry into
the house.
The trial court held:
[T]hat there is no evidence to indicate that
the Defendant knew that the police had him
under surveillance or that they were about to
arrest him when they entered the home. The
Court finds that this is not a hot pursuit
case. The motion to suppress is granted.
The trial court further held, apparently in reference to Verez v.
Commonwealth, 230 Va. 405, 410-11, 337 S.E.2d 744, 753 (1985),
cert. denied, 479 U.S. 813 (1986):
If you would look at those 10 points in that
Virginia Supreme Court [case], I don't think
the Commonwealth meets any one of the 10,
maybe one of them, the fact that they had
probable cause to believe that a crime had
been committed. But other than that, other
than number 7, I'm not sure that you have met
any of the 10.
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"[T]he Fourth Amendment has drawn a firm line at the
entrance to the house. Absent exigent circumstances, that
threshold may not reasonably be crossed without a warrant."
Payton v. New York, 445 U.S. 573, 590 (1980). However, exigent
circumstances may justify as reasonable a warrantless entry into
a dwelling for purposes of search or arrest. Verez v.
Commonwealth, 230 Va. 405, 410, 337 S.E.2d 744, 752-53 (1985),
cert. denied, 479 U.S. 813 (1986). One such exigent circumstance
is hot pursuit.
We have found no case that specifically defines "hot
pursuit." However, we think that the term is self-defining. A
pursuit is "hot" if the circumstances are such that breaking off
or delaying the chase for the time required to obtain a warrant
is likely to involve significant danger to any person, loss of
evidence, or opportunity for the suspect to escape.
Talbert contends that for a pursuit to be "hot," the suspect
must be in flight, knowing that he is being pursued. He has
cited cases in which scenarios including that circumstance have
been held to constitute "hot pursuit." However, he has
identified no case, nor have we found any, in which that
circumstance was held to be a requirement for "hot pursuit." The
term "hot pursuit," as well as the other exigent circumstances
that have been held to justify warrantless intrusions, relates to
the circumstances governing the officer's conduct, to the
situation as reasonably perceived by the officer, and must be
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assessed from the officer's perspective. Elusive action by the
suspect will bear on this assessment, but the suspect's awareness
and perceptions are not, as such, determinative.
In support of its argument that Ballenger entered the house
in hot pursuit of Talbert, the Commonwealth cites Warden v.
Hayden, 387 U.S. 294 (1967), and United States v. Santana, 427
U.S. 38 (1976). In Hayden, the police were informed that a
suspect, wanted in connection with an armed robbery, had entered
a residence less than five minutes before. Upholding a
warrantless entry by the police for the purpose of apprehending
the suspect, the Supreme Court said:
[The police] acted reasonably when they
entered the house and began to search for a
man of the description they had been given
and for weapons which he had used in the
robbery or might use against them. The
Fourth Amendment does not require police
officers to delay in the course of an
investigation if to do so would gravely
endanger their lives or the lives of others.
Speed here was essential, and only a
thorough search of the house for persons and
weapons could have insured that Hayden was
the only man present and that the police had
control of all weapons which could be used
against them or to effect an escape.
Hayden, 387 U.S. at 298-99.
Hayden did not specifically employ the term "hot pursuit."
Talbert argues that Hayden was not decided on the basis of "hot
pursuit," but rather on the exigent circumstances of the
seriousness of the crime and the dangerousness of the suspect.
However, the Supreme Court has cited Hayden as a "hot pursuit"
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case. See Welsh v. Wisconsin, 466 U.S. 740, 750 (1984). See
also Lugar v. Commonwealth, 214 Va. 609, 629, 202 S.E.2d 894, 909
(1974). Although Hayden was unaware that he was being pursued,
the urgency of the timing and of the circumstances confronting
the police constituted their entry into the house a "hot
pursuit."
In Santana, the police made a controlled heroin purchase.
They returned to arrest the seller. The suspect was standing in
the doorway of her house. When the police approached and
announced themselves, the suspect attempted to flee into the
house and was caught in the vestibule. The Supreme Court held
that the warrantless entry by the police into the vestibule of
the house was a true "hot pursuit." Santana, 427 U.S. at 42-43.
The Supreme Court noted that as the police approached, the
suspect was standing outside of the house, amenable to
warrantless arrest. It held that she could not defeat the
ability of the police to affect the arrest by flight into the
house. Id. at 42. See also United States v. Sewell, 942 F.2d
1209 (7th Cir. 1991); United States v. Fleming, 677 F.2d 602 (7th
Cir. 1982).
In Verez v. Commonwealth, 230 Va. 405, 337 S.E.2d 744
(1985), cert. denied, 479 U.S. 813 (1986), the police, using
undercover informants, arranged for a large cocaine purchase to
be made in a motel in Hanover County. The target of the
investigation was a drug dealer who had another man with him and
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who was known to be armed and elusive. Until the police received
a predetermined signal from one of the informants, they did not
know the exact location of the transaction and did not have
specific information that the drugs were, in fact, on the
premises. Upon receiving the prearranged signal, the police
burst into the room, arrested Verez, and seized a large amount of
cocaine. Upholding the warrantless entry into the motel room,
the Supreme Court said:
Exigent circumstances . . . may justify as
reasonable a warrantless entry into a
dwelling, a search of the interior, a seizure
of contraband, and an arrest of those found
in possession of it. Such warrantless
entries into dwellings, followed by searches,
seizures, and arrests therein, however, are
presumed to be unreasonable, in Fourth
Amendment terms, casting upon the police a
heavy burden of proving justification by
exigent circumstances.
Id. at 410, 337 S.E.2d at 752-53. Noting that no court had
attempted to formulate a final and comprehensive list of all
exigent circumstances which might justify warrantless entry, the
Supreme Court enumerated as "some of those considered relevant,"
ten categories of circumstance, including "hot pursuit." Id. at
410-11, 337 S.E.2d at 753. The Court did not represent this list
to be complete or exclusive. The Court did not state that more
than one such circumstance was required.
This case is controlled by Hayden, Santana and Verez. We
hold that Ballenger entered the house in "hot pursuit" of
Talbert. Just a few minutes before, Bunney had seen Talbert sell
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a piece of cocaine to the man and woman whom he had met on the
street. Bunney had seen Talbert secrete the large remaining
block of crack cocaine next to his person in the wheelchair.
While the officers elected first to apprehend the purchasers,
they moved immediately, and without delay, to locate and
apprehend Talbert. Bunney spotted Talbert first and ordered
Ballenger to hurry. Ballenger came on the scene hastily and saw
Talbert not yet in the house. He immediately pursued him and
Talbert entered the house as Ballenger approached. The outer
door did not close completely and the inner door remained open.
Without interrupting the chase, Ballenger entered the house
immediately, through the still open door, apprehended Talbert and
secured the piece of cocaine. Had Ballenger failed to do so,
Talbert might have learned that the police were on his trail. He
might have eluded apprehension and might have disposed of the
large piece of crack cocaine.
In addition to the circumstances of "hot pursuit," general
exigent circumstances controlled Ballenger's conduct. A police
officer had observed Talbert commit a crime and had observed him
place material and easily disposable evidence of that crime on
his person. Talbert was seen entering a house, the ownership and
occupancy of which was at that time unknown. The officers did
not know how long Talbert would remain in the house or what he
would do while there. The officers had good cause to believe
that their apprehension of the purchasers would become known.
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The large rock of cocaine, known to be on Talbert's person, was
easily disposable, by sale, consumption, or destruction. The
officers had good cause to suspect that Talbert and the people
with him were armed and dangerous. See Peguese v. Commonwealth,
19 Va. App. 349, 353, 451 S.E.2d 412, 414 (1994) (en banc).
The exigent circumstances described by the testimony, and
specifically the circumstance of hot pursuit, justified Officer
Ballenger's warrantless entry into the house, his apprehension of
Talbert, and his seizure of the rock of crack cocaine. The trial
court erred in ordering the crack cocaine to be suppressed as
evidence.
The judgment of the trial court is reversed, and this case
is remanded for further proceedings.
Reversed and remanded.
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