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Evidence from warrantless apartment search suppressed

Where police entered appellant’s apartment without a warrant, evidence found during the search should have been suppressed. Police lacked probable cause or exigent circumstances to enter. Appellant’s conviction for a drug offense is vacated and the case is remanded for further proceedings.


Police responded to a 911 “disorderly” call. Dickens answered the door. As she stepped out to speak with police, appellant was standing behind the door.

Asked to show his hands, appellant revealed he was holding a box of cigarettes. In response to an officer’s question about going inside, Dickens told police they could go in.

Appellant resisted, claiming he was a resident, and blocked the door. A shouting match developed between appellant and one of the officers. The officer was using his leg and arm to keep the door open while appellant was trying to close it.

Three officers then entered the apartment. Two of them restrained appellant. One questioned Dickens, who said appellant had punched her a party. Appellant was arrested for domestic assault and battery.

During a search incident to arrest, drugs and appellant’s identification were found in a bag. Police discovered appellant had an outstanding warrant from another county.

The trial court denied appellant’s motion to suppress. Appellant entered conditional guilty pleas to two counts of possession with intent to distribute a Schedule I or II drug, second or subsequent offense.

He appealed, arguing that the police lacked probable cause or exigent circumstance to enter without a warrant.


“[W]e hold that no exigent circumstances justified the officers’ warrantless entry into appellant’s home. First, there was no urgency requiring immediate entry. … When the police arrived in response to the ‘disorderly’ call, there was no ongoing disorderly conduct or any indication of any other ongoing crime.

“Dickens appeared unharmed when she first opened the door to Officer Thornton’s knock, and she said nothing about the earlier disturbance as she walked past him to her apartment next door.

“The officers had no reasonable belief that contraband would be removed or destroyed; in fact, they had no belief any contraband would be found. There were three officers on the scene.

“A situation is not ‘urgent’ if ‘it appears that there is no imminent change to the circumstances about to occur and that the status quo largely can be maintained while the officers seek a warrant.’ …

“The trial court described the situation as a ‘powder keg’ ready to explode, but there was little, actual possibility of danger to others.

“Dickens was outside the apartment standing near the police officers while appellant stood in his apartment behind the partially open front door.

“The police had received no information that appellant was armed and had no reason to believe he had a weapon. When asked to show his hands, appellant displayed a cigarette box. He made no furtive or sudden movements that suggested he had a weapon. …

“Although appellant became increasingly agitated throughout the encounter, his insistence that the officers not enter his home did not automatically create exigent circumstances or authorize the police to disregard the Fourth Amendment. …

“Neither appellant’s refusal to step outside nor his outburst at Officer Thornton created a genuine possibility of danger to the people present that justified a warrantless entry.

“A finding of exigency requires ‘a clear showing of probable cause’ at the time of entry. … The officers were investigating the reported domestic altercation, which the trial court noted could escalate quickly and become more serious.

“But the officers observed only property damage and possibly vandalism, both crimes that involve a low level of violence. Thornton did not learn of the domestic battery allegation until after the officers had entered appellant’s apartment and restrained him.

“The officers had no reason to believe that appellant had committed a serious, violent offense before they entered his apartment. …

“Considering the circumstances in their totality, we find no basis for concluding any exigency existed. We therefore hold that the warrantless entry by police into appellant’s home violated the Fourth Amendment.”

‘Flagrant’ misconduct

“The Commonwealth seems to argue that the exclusionary rule’s purpose of deterring flagrant police conduct would not be served here. In other words, because the police committed no purposeful wrongdoing and entered the apartment in good-faith belief that their actions were legal, it is inappropriate to suppress the drugs they discovered.

“We disagree because the police misconduct here is flagrant and thus triggers the exclusionary rule. … The test for applying the exclusionary rule is ‘whether a reasonably well[-]trained officer would have known that the search was illegal in light of all of the circumstances.’ …

“The misconduct at issue does not involve a new or recently amended statute or significant clarification of binding precedent, … but well-established tenets observing a citizen’s right to privacy in the sanctity of his home.

“There was neither exigency nor any other valid reason to enter appellant’s apartment without a warrant. Under the circumstances, a reasonably well-trained officer would have known that warrantless entry into appellant’s apartment was illegal and unnecessary. Failing to impose the exclusionary rule here would reward ‘a sloppy study of the law.’ …

“[W]e hold that the evidence here is subject to exclusion.”

Independent source exception

“The Commonwealth argues that finding the drugs in appellant’s bag was independent of the unlawful entry.

“It contends that Dickens’s statement that appellant punched her was an independent source for officers finding the drugs, because the statement gave officers probable cause to lawfully arrest appellant without a warrant, which would have led to the discovery of the drugs in the search incident to his arrest. We disagree.

“The ‘independent source doctrine allows the admission of evidence that has been discovered by means wholly independent of any constitutional violation.’ … [T]he initial complaint referred to a ‘disorderly,’ a verbal altercation and a TV thrown to the floor.

“The police had no basis for probable cause to arrest appellant for battery other than Dickens’s allegation, but she did not tell Officer Thornton that appellant had punched her until after the police had entered appellant’s apartment unlawfully and restrained him.

“Consequently, the independent source doctrine does not apply because Dickens’s statement was not untainted by the original constitutional violation.”

Reversed, conviction vacated and remanded for further proceedings.

Baskerville v. Commonwealth., Record No. 0837-21-2, Feb. 21, 2023. CAV (published opinion) (Causey). From the Circuit Court of the City of Richmond (Marchant). Samantha Offutt Thames for appellant. Liam A. Curry, Jason S. Miyares for appellee, VLW 023-7-084, 15 pp.

VLW 023-7-084