Opinion
Record No. 0238-93-2
July 6, 1993
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY PAUL M. PEATROSS, JR., JUDGE.
Eugene Murphy, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellant.
Samuel P. Higginbotham, III (Higginbotham, Higginbotham Bowman, on brief), for appellees.
Present: Chief Judge Moon, Judges Benton and Fitzpatrick.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The Commonwealth appeals the trial judge's decision to suppress evidence obtained during the execution of a search warrant. The Commonwealth contends that the trial judge erred in ruling that the police officers who served the search warrant were required to knock and announce their presence before entering the building to execute the search warrant. We affirm the decision.
The evidence at the suppression hearing proved that on the evening of February 22, 1992, Detective John Gonzales, working in an undercover capacity with the police department, arrived at the property of David Lee and Jean Spradlin. Gonzales entered a barn-like building and saw approximately 100-125 people. He observed a ring laid out with bleacher seats positioned around it. Gonzales was wearing a concealed transmitting device by which he relayed his observations to police officers, who were monitoring his transmissions. Gonzales transmitted a previously arranged signal to the police that he was in the building and had observed cockfighting, wagering, and birds being injured in the cockfighting.
Detective Huffman was listening to Gonzales' reports. When he heard the prearranged key words, Huffman relayed the information from Gonzales to Detective Byers. Byers was in the magistrate's office giving information as an affiant to obtain a search warrant to enter the building. Huffman heard noise from the crowd inside the building when receiving information from Gonzales, but was not told of any violence, danger, drugs, weapons, or fights.
The team planning the raid decided to enter the structure without knocking or announcing. The decision to do so was based on the belief that hunters were present and might have weapons. The planning team also had evidence that on a previous occasion drugs had been present on the property. Gonzales, who was in the building, had not reported that drugs or guns were present.
When the police arrived to execute the warrant, they observed that a big event was going on and that people were walking around outside the building. The officers in the raiding party entered the building without knocking and announced their presence over the bull horn. They searched the premises and seized evidence. The Spradlins were arrested and indicted for operating an illegal gambling activity. At the conclusion of the hearing, the trial judge granted the motion to suppress the seized evidence.
"'[N]o-knock' entries to search pursuant to search warrants areper se unreasonable, subject to exceptions under exigent circumstances." Keeter v. Commonwealth, 222 Va. 134, 141, 278 S.E.2d 841, 845, cert. denied, 454 U.S. 1053 (1981). These exceptions "permit officers to make an unannounced entry where they have probable cause to believe that their peril would be increased if they announced their presence or that an unannounced entry is necessary to prevent persons within from escaping or destroying evidence." Heaton v. Commonwealth, 215 Va. 137, 138, 207 S.E.2d 829, 830 (1974). "Unless an exception can be established by the prosecution, evidence seized after a 'no knock' entry is excluded under the Fourth Amendment."Id.
In this case, the police entered without first knocking and announcing their presence. The Commonwealth argues that exigent circumstances existed because the police (1) could reasonably have concluded that persons would attempt to dispose of evidence, and (2) could reasonably have feared that bystanders would be endangered by fleeing or resisting persons.
The evidence proved and the trial judge found the following:
[T]he police officers had to have probable cause to believe that the unannounced entry was necessary to prevent persons from escaping or destroying evidence. The evidence shows that the entrance door was controlled by Detective Grimes with a sub machine gun. The evidence further shows that all other exits were covered by members of the Tactical Team to prevent escape of persons from within the building.
As to probable cause to believe that evidence would be destroyed, there is no evidence that the structure contained indoor plumbing or other means to destroy evidence. The evidence sought to be seized was for "[c]urrency placed as bets, books, papers, documents or records of an illegal gambling operation associated with cock fighting on which bets are placed, objects associated with cock fighting such as metal spurs which are lashed to the legs of fighting cocks, a person or persons conducting an illegal gambling operation association with cock fighting, a person or persons collecting bets on cock fighting, a person or persons engaged in cock fighting resulting in injuries to fowl, and fowl injured as a result of cock fighting." None of these things were readily disposal in nature. There is no allegation that the papers were of a kind such as "rice paper" as discussed in the case of Carratt v. Commonwealth, 215 Va. 55 (1974). Furthermore, there was no evidence of means to destroy fowl, metal spurs, or persons associated with gambling activity.
In addition, the evidence proved that an undercover police officer was in the building at all times. He did not relay any information that would have supported a conclusion that exigent circumstances existed. Moreover, the evidence proved that the police had decided at a planning session in advance of the day of the raid to enter without knocking and announcing their presence before entry.
The evidence supports the trial judge's finding that at the time of the entry no exigency existed that would provide an exception to the rule that unannounced entries are per se unreasonable. Accordingly, we affirm the decision excluding the unlawfully seized evidence.
Affirmed.
completely lacking. The loud crowd noise inside would have prevented anyone from hearing the "knock." An undercover police officer was inside before the search began, and he was in a position to advise the police by radio of events inside. There was probably, as the police theorized in part for justifying a no-knock entry, less likelihood of danger to the police and spectators than if the police had announced by bull horn from the outside that the search was about to begin. Under the circumstances of this case, I believe the no-knock entry was reasonable as a matter of law and, thus, not violative of the fourth amendment.