Summary
In Perry v. Commonwealth, 49 Va. App. 65, 636 S.E.2d 891 (2006), we explicitly held that "the remedy for [a violation of the knock and announce rule] is not the suppression of the evidence recovered from appellant's residence."
Summary of this case from Patton v. CommonwealthOpinion
Record No. 2060-05-1.
November 14, 2006.
Appeal from the Circuit Court, City of Norfolk, Everett A. Martin, Jr., J.
From the Circuit Court of the City of Norfolk, Everett A. Martin, Jr., Judge.
Judge Charles D. Griffith denied appellant's motion to suppress.
Trevor Jared Robinson (Robinson, Neeley Anderson, on brief), Norfolk, for appellant.
Kathleen B. Martin, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: ELDER, FRANK and HALEY, JJ.
Immanuel Cyprus Perry, appellant, was convicted in a bench trial of common nuisance, in violation of Code § 18.2-258, possession of ecstasy, in violation of Code § 18.2-250, possession of marijuana with the intent to distribute, in violation of Code § 18.2-248.1, and possession of a firearm while in possession of ecstasy, in violation of Code § 18.2-308.4. On appeal, appellant contends the trial court erred in denying his motion to suppress the evidence recovered pursuant to a search warrant, arguing the police officers serving the warrant failed to knock and announce their presence before entering his residence. For the reasons stated, we affirm.
BACKGROUND
The facts of this case are not in dispute. On January 4, 2003, Investigator David Barber of the Norfolk Police Department obtained a search warrant for appellant's residence.
Appellant does not challenge the validity of the search warrant or the sufficiency of the affidavit to supply probable cause for the search warrant. On appeal, he challenges only the method of executing the search warrant.
Barber testified that, based on the information he had regarding appellant's prior gun possessions and the presence of a camera mounted above appellant's door, he made the decision to make a "no-knock entry" into appellant's home. When executing the search warrant on January 4, 2003, officers rammed the front door of appellant's residence and entered without knocking and announcing their presence. Officers recovered ecstasy, marijuana, drug packaging material, $4,900 in U.S. currency, and a firearm from appellant's residence.
Appellant filed a motion to suppress the evidence found in his home based on the officers' violation of the "knock-and-announce" rule. He argued below, as he does on appeal, that the information relied upon by Investigator Barber in deciding to effect a "no-knock entry" was either "too generalized" or too "stale" to justify such an entry. The trial court denied appellant's motion.
This appeal follows.
ANALYSIS
On appeal, appellant contends that the facts contained in the affidavit were not sufficient to justify a "no-knock entry" into appellant's home.
We do not address whether officers violated the knock-and-announce rule, as the United States Supreme Court's recent decision in Hudson v. Michigan, ___ U.S. ___, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006), directs that the remedy for such a violation is not the suppression of the evidence recovered from appellant's residence. "[T]he knock-and-announce rule has never protected . . . one's interest in preventing the government from seeing or taking evidence described in a warrant." Hudson, ___ U.S. at ___, 126 S.Ct. at 2165.
This appeal was granted before the Supreme Court issued its decision in Hudson.
Instead, the rule was developed (1) to protect against violence raised in self-defense by a resident surprised by an unannounced-entry, id., (2) to give individuals "`the opportunity to comply with the law and to avoid the destruction of property occasioned by a forcible entry,'" id. (quoting Richards v. Wisconsin, 520 U.S. 385, 393 n. 5, 117 S.Ct. 1416, 1421 n. 5, 137 L.Ed.2d 615 (1997)), and (3) to give "residents the `opportunity to prepare themselves for' the entry of the police," id. (quoting Richards, 520 U.S. at 393 n. 5, 117 S.Ct. at 1421 n. 5). Since these interests "have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable." Hudson, ___ U.S. at ___, 126 S.Ct. at 2165. As such, the trial court did not err in denying appellant's motion to suppress.
Affirmed.