Opinion
Record No. 0667-92-2
September 7, 1993
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND THOMAS N. NANCE, JUDGE.
Joseph S. Massie, III (Gary R. Hershner; Hershner, Jacobs, Hicks, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
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.
Wilson Dewey Vaughan, Jr. appeals his conviction for possession of cocaine. He contends that the evidence obtained during a search of his apartment should have been suppressed because the police entered, in the absence of any exigent circumstances, without first knocking and announcing their intentions. For the foregoing reasons, we affirm the conviction.
The evidence proved that the police obtained a search warrant for Vaughan's apartment. The affidavit accompanying the search warrant stated that within thirty-six hours of the application a reliable informant saw Vaughan offering cocaine for sale at the apartment. The informant also stated that Vaughan "keeps firearms laying around the dwelling." Based upon this information, the police obtained the search warrant and entered the apartment by force without first knocking.
Upon entering the apartment, the officers announced their presence. Vaughan was standing in the middle of the room holding a glass smoking pipe containing cocaine. The officers arrested Vaughan for possession of cocaine.
"Generally, police officers, before resorting to forced entry into premises to be searched under warrant, must attempt to gain admittance peaceably by announcing their presence, identifying themselves as police officers and stating their purpose."Heaton v. Commonwealth, 215 Va. 137, 138, 207 S.E.2d 829, 830 (1974). If the "officers . . . have probable cause to believe that their peril would be increased if they announced their presence," they may enter without first knocking and announcing their presence. Id. The inference of dangerousness is strong when, as in this case, the police have information that the accused had guns "laying around in the dwelling" to be searched.See Carratt v. Commonwealth, 215 Va. 55, 58-59, 205 S.E.2d 653, 655-656 (1974), cert. denied, 420 U.S. 973 (1975).
That no weapons were found on the defendant's person or in the apartment cannot be used in retrospect to negate the validity of the forced entry.
[O]fficers are not required to possess either the gift of prophecy or the infallible wisdom that comes only with hindsight. They must be judged by their reaction to circumstances as they reasonably appeared to trained law enforcement officers to exist when the decision to enter was made.
Keeter v. Commonwealth, 222 Va. 134, 141, 278 S.E.2d 841, 846 cert. denied, 454 U.S. 1053 (1981). Thus, the trial judge did not err in refusing to suppress the evidence.
For these reasons, we affirm the judgment.
Affirmed.