Virginia Lawyers Weekly//January 1, 1993
Virginia Lawyers Weekly//January 1, 1993//
Where the police could see through the window that the residents posed no immediate threat, the police delay of only five seconds prior to making forcible entry after knocking and announcing their presence with a warrant was not reasonable and defendant’s marijuana possession conviction is reversed.
Viewing the evidence in the light most favorable to the commonwealth, we conclude that the police properly complied with the first three elements of the knock and announce doctrine, that is, knocking, identifying themselves as police officers, and indicating the reason for their presence. However, no evidence in the record supports the trial court’s conclusion that five seconds, under the circumstances of this case, was a reasonable time for the police to wait for admission before making a forcible entry.
In so doing, we set no strict time limit for the period of time the police must wait. A myriad of circumstances could confront an officer executing a search warrant. However, the police must allow the occupant of the dwelling to be searched a reasonable opportunity to come to the door and answer their knock, unless exigent circumstances arise or the occupant denies admission.
We conclude that the five-second delay before forcible entry was unreasonable in this case because the police could clearly see defendant, who was the target of their investigation, through the glass storm door. At the time of the knock and announcement, the occupants of the residence were visible and engaged in such innocuous activities as trimming a Christmas tree. The police confronted no exigent circumstances and observed no suspicious activity before or after knocking on defendant’s door.
Therefore, we hold that it was unreasonable for the police to pause only five seconds before rushing through defendant’s unlocked door. The police did not provide defendant or one of the other occupants a reasonable opportunity to respond to the knock and allow the police peaceable entry.
Conviction is reversed and the case is remanded for further proceedings.
Wynne v. Commonwealth (Fitzpatrick) No. 1390-91-2, Feb. 23, 1993; Henrico County Cir.Ct. (Tidey) John B. Boatwright for appellant; Kathleen B. Martin, AAG, for appellee. VLW 093-7-108, 6 pp.