COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Alston and Senior Judge Annunziata Argued in Richmond , Virginia
JERRY LEE WASHING T ON OPINION BY v. Record No. 1428

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- 2 JUDGE D. ARTHUR KELSEY JULY 24, 2012 COMMONWEALTH OF VIRG INIA
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY Leslie M. Osborn , Judge Gregory A. Ullom, Assi stant Public Defender (Office of the Public Defender , on brief ) , for appellant. Alice T. Armstrong , Assistant Attorney General II (Kenneth T. Cuccinelli, II, Attorney General , on brief), for appellee. The trial court found Jerry Lee Washington guilty of b urglary, grand larceny, and destruction of property. Washington appeals , claiming the trial court erred by denying his pretrial motion to suppress evidence collected following a warrantless entry into his home. We disagree and affirm.
I. When reviewing a denial of a suppression motion, we review the evidence “in the light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.” Glenn v. Commonwealth , 49 Va. App. 413, 416, 642 S.E.2d 282, 283 (2007) ( en banc ) (citation s omi tted), aff’d , 275 Va. 123, 654 S.E.2d 910 (2008). This standard requires us to “give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” Malbrough v. Commonwealth , 275 Va. 163, 169, 655 S.E.2d 1, 3 (200 8) (citation s omitted). “ In doing so, we ‘ consider facts presented both at the suppression hearing and at- 2

- trial. ’ ” Tizon v. Commonwealth , 60 Va. App. 1, 15, 723 S.E.2d 260, 267 (2012) (quoting Morris v. City of Va. Beach , 58 Va. App. 173, 176, 707 S.E.2d 4 79, 480 (2011) )

. On January 8, 2011, Jerome and Cheryl Henderson called the Mecklenburg County Sheriff’s Office around 11:45 a.m. , believing someone had just broken into their home. They waited for the deputies to arrive before entering their residence. It had snowed earlier that morning , but not in the preceding days . Deputy Tim Garner arrived at the Hendersons’ home at 12:03 p.m. He observed that a window had been broken out of one of the Hendersons’ vehicles. He also discovered someone had broken a window leading into the kitchen. The Hendersons reported various things had been stolen from inside their home , including food, liquor, a tool box, and other household items

. Deputy Garner observed a single set of footprints in the snow , leading from th e damaged vehicle to the Hendersons’ home. The footprints had a distinct checkered pattern. Given the sharpness of the footprints and the recent snowfall, Deputy Garner concluded the footprints were fresh and believed the suspect had recently left the sc ene of the crime. He and another deputy followed the checkered

- pattern ed footprints across the street directly to the front door of a residential trailer. The trail of footprints provided a continuous, uninterrupted path from the Hendersons ’ residence to the trailer. When one of the deputies knocked on the trailer’s front door, it immediately swung open. Fearing the suspect was in the process of burglarizing the trailer , the deputies announced their presence and ordered anyone in the trailer to come out. There was no reply. The deputies then entered the traile r to perform a protective sweep. “We were just clearing it to see if anybody was there,” the deputies later testified. App. at 37. While doing so, they saw the toolbox that had been taken from t he Hendersons’ home. They also looked under a bed where a suspect might be hiding. While attempting to “clear under the bed,” on e of the deputies “knocked a pair of shoes- 3

- out of the way” to get a better look and noticed the shoes had the same checke re d p attern as the footprints previously observed in the snow. Id. at 38. After determi ning no one was in the trailer, the deputies left the trailer , taking no evidence with them , and secure d a search warrant from a magistrate. Pursuant to the warrant, the de puties reentered the trailer that afternoon and discovered nearly all of the items stolen from the Hendersons’ home , including stolen food items ( still frozen ) in a non

- working freezer . After the search, Garner encountered Washington walk ing up the drivew ay of the trailer. Washington acknowledged that he lived alone at the residence and asked the deputy what was going on

. Deputy Garner told him “something had occurred in the area, in the neighborhood.” Id. at 145, 148. In response, Washington volunteer ed that he “hadn’t done anything. He hadn’t broken into anybody’s h ous e.” Id. at 146

. After Washington’s arrest, a grand jury indicted him for burglary with intent to commit larceny, grand larceny, and destruction of property. Prior to trial, Washington moved to suppress the incriminating evidence found in his trailer . The trial court denied the motion, heard the evidence, and found Washington guilty as charged.

II. On appeal, Washington claims the trial court erred by denying his suppression motion. He acknowledges the deputies collected the incriminating evidence pursuant to a search warrant, but contends they obtained the warrant based on observations they made during the initial warrantless entry. This initial entry, Washington argues, violated th e Fourth Am endment

. We disagree.
A. T HE S UPPRESSION S TANDARD Though the ultimate question whether the officers violated the Fourth Amendment triggers de novo appellate scrutin y, “we defer to the trial cour t’ s findings of ‘historical fact’ and- 4

- give ‘due weight to the inferences drawn from those facts by resident judges and lo cal law enforcement officers.’” Glenn , 49 Va. App. at 418, 642 S.E.2d at 284 (citation s omitted). “To prevail on appeal, ‘ the defenda nt must show that the trial court ’ s denial of his suppression motion, when the evidence is considered in the light most favorable to the prosecution, was reversible error. ’ ” Slayton v . Commonwealth , 41 Va. App. 101, 105, 582 S.E.2d 448, 450 (2003) ( citati on omitted ).
F aced with a suppression motion, neither a trial court nor an appellate court should “ limit itself to what the ‘ officer says or to evidence of his subject ive rationale ’ ” in assessing the legality of his actions. Morris , 58 Va. App. at 179, 70 7 S.E.2d at 481 (quoting Raab v. Commonwealth , 50 Va. App. 577, 583 n.2, 652 S.E.2d 144, 148 n.2 (2007) ( e n banc ) )

. If the police officer’s actions are objectively reasonable, the Fourth Amendment authorizes the action, “ whatever the subjective intent” mo tivating the officer. Ashcroft v. al

- Kidd , 131 S. Ct. 2074, 2080 (2011) (citation o mitted) (emphasis in original). Examining the subjective intent of the officer “is fundamentally inconsistent with our Fourth Amendment jurisprudence,” Kentucky v. King , 13 1 S. Ct. 1849, 1859 (2011), because “the Fourth Amendment regulates conduct rather than thoughts,” al

- Kidd , 131 S. Ct. at 2080

- 81 (noting narrow exceptions); see also Robinson v. Commonwealth , 273 Va. 26, 37, 639 S.E.2d 217, 223 (2007) ( holding the officer ’s “subjective motivation is irrelevant”) . “ Stated another way, we do n ot consider allegations of the officer’ s real motive for his actions if they otherwise satisfy the objective reasonableness standard adopted by the Fourth Amendment. An officer’ s ulte rior motive, whatever it might be, does no t nullify an objectively valid legal justification for his actions. ” Thomas v. Commonwealth , 57 Va. App. 267, 274, 701 S.E.2d 87, 91 (2010) (citations and internal quotation marks omitted)

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- Overarching this standa rd is our recognition that the suppression remedy imposes “substantial social costs” that sometimes include “ setting the guilty free and the dangerous at large. ” Echavarry v. Commonwealth , 60 Va. App. 177 , 184 , 725 S.E.2d 151 , 155 (2012) (quoting Hudson v . Michigan , 547 U.S. 586, 591 (2006) ). Thus , suppression of evidence should be “ our las t resort, not our first impulse.” Id. (quoting Hudson , 547 U.S. at 591). Standing alone, the “fact that a Fourth Amendment violation occurred

— i.e. , that a search or arrest was unreasonable

— does not necessarily mean that the exclusionary rule applies.” Herring v. United
States , 555 U.S. 135, 141 (2009). T hough the Fourth Amendment prohibits unreasonable searches and seizures, it “says nothing about suppressing evi dence obtained in violation of this command.” Davis v. United States , 131 S. Ct. 2419, 2426 (2011)

. Because “the exclusionary rule is not an indivi dual right,” prior precedent has “repeatedly rejected the argument that exclusion is a necessary consequence of a Fourth Amendment violation.” Herring , 555 U.S. at 141

. “To trigger the exclusionary rule,” therefore , the challenged “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deter rence is worth the price paid by the justice system.” Id. at 144 . The criminal defendant must shoulder the burden of demonstrating this justification for suppressing evidence and, in doing so, he “ faces ‘a high obstacle’ in demonstrating that exclusion i s appropriate.” Fitchett v. Commonwealth , 56 Va. App. 741, 746, 697 S.E.2d 28, 31 (2010) (quoting Hudson , 547 U.S. at 591 )

.
B

. W ARR ANTLESS E NTRY I NTO A R ESIDENCE “A mong the many interests served by the Fourth Amend me nt, the privacy interest in
one’ s home has few equals. ” Kyer v. Commonwealth , 45 Va. App. 473, 480, 612 S.E.2d 213,
217 (2005) ( en banc ); see generally Kyllo v. United States , 533 U.S. 27, 31 (2001)

. As a general rule, “searches and seizures inside a h ome without a warrant are presumptively unreasonable.”- 6

- King , 131 S. Ct. at 1856 (citation omitted). “ But even on this topic the Fourth Amendment’ s text endorses no absolutes. It instead condemns only ‘unreasonable’ searches and seizures. ” Kyer , 45 Va. App. at 480, 612 S.E.2d at 217

. T he “ presumption may be overcome in some circumstances ” because the “ warrant requirement is subject to certain reasonable exceptions. ” King , 131 S. Ct. at 1856 ( citation s omitted). “ One well

- reco gnized exception applies w hen ‘ the exigencies of the situation’ make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” Id. (citation s and internal brackets omitted). Coupled with a showing of probable cause, there are “ several exigencies that may justify a warrantless search of a home. ” Id. ; see also Smith v. Commonwealth , 56 Va. App. 592, 598, 696 S.E.2d 211, 214 (2010)

. O ne such exigency occurs whe re officers “reasonably believe that the premises have rec ently been or are being burglarized.” 3 Wayne R. LaFave, Search & Seizure § 6.6(b), at 470

- 72 (4th ed. 2004) . “If it is possible the burglar is still at the scene, the police may look in places where he might be hiding.” Id. at 474. 1 We addressed just t his situation in Hill v. Commonwealth , 18 Va. App. 1, 441 S.E.2d 50 (1994) . In that case, a neighbor telephoned the police and reported a possible burglary at a nearby residence. The front door of the residence was open, and the owner had been gone for

t wo days. The police arrived on the scene , rang the doorbell, and shouted several times through the open door for anyone inside to respon d

. “St ill receiving no response, the officers entered the house to investigate the possibility of a burglary. They ag ain announced themselves and,

1 See also Hunsberger v. Wood , 570 F.3d 546, 555 (4th Cir. 2009); United S tates v. McCullough , 457 F.3d 1150, 1164 (10th Cir. 2006) ; United States v. Brown , 449 F.3d 741 , 748

- 49 (6th Cir. 2006); Leaf v. Shelnutt , 400 F.3d 1070, 1081

- 82 (7th Cir. 2005); In re Sealed Case 96

- 3167 , 153 F.3d 759, 766

- 67 (D.C. Cir. 1998); United States v. Tibolt , 72 F.3d 965, 970

- 71 (1st Cir. 1995).- 7

- receiving no response, searched the house in places where a burglar might hide, including closets and under beds. ” Id. at 2 , 441 S.E.2d at 51

. They did not find the burglar but observe d contraband , which they later retriev ed pursuant to a search warrant. We held in Hill that the officers had probable cause to believe the home had been “unlawfully entered” and they “reasonably suspected that the burglar might still be in the house.” Id. at 4, 441 S.E.2d at 51. “ The circu ms tances required prompt action,” we emphasized. Id. The officers had a duty to determine whether the “ house had, in fact, been burglarized, to apprehend the burglar, and to resecure the premises. ” Id. “ It would have been impractical for one officer to
g o for a warrant while the other attempted to secure the premises from all sides. The circumstances created a situation of exigency, requiring immediate, warrantless entry. ” Id. ; see United States v. Singer , 687 F.2d 1135, 1144 (8th Cir. 1982) (“it would defy reason to suppose that [officers] had to secure a warrant before investigating, leaving the putative burglars free to complete their crime unmolested”), adopted in relevant part , 710 F.2d 431 (1983) ( en banc )

. C

. E NTRY I NTO W ASHINGTON ’ S T RAILER The information known by the deputies in this case support s the trial court’s finding of probable cause and exigent circumstances. The deputies had just received a report of a recent burglary of the Hendersons’ home . Fresh footprints in the snow led from the broken kitchen window to the damaged vehicle to the doorstep of Washington’s trailer. The snow had f a ll en that morning , but not during the preceding days. The distinct check er ed footprint left a clean and shar p trail from one clearly burglarized home to another residence that the deputie s reasonably suspected was in the process of being burglarized. The door to the trailer opened simply upon knocking on it, further confirming the deputie s’ suspicions. Hearing no reply to their request that anyone inside should come out , the deputies could have reasonably feared a burglar had incapacitated anyone living in the trailer or threatened them to remain silent.- 8

- Washington contends the deputies could not be certain a b urglary suspect was still in the trailer. True, but the deputies were “ not required to possess either the gift of prophecy or the infallible wisdom that comes with hindsight. Their conduct in making a warrantless search must be judged by the circumstance s confronting the officers at the time they act. ” Hill , 18 Va. App.

a t 3 , 441 S.E.2d at 51 ( quoting Reynolds v. Commonwealth , 9 Va. App. 430, 437, 388 S.E.2d 659, 664 (1990))

. In Fourth Amendment cases, the “calculus of reasonableness must embody allowan ce for the fact that police officers are often forced to make split

- second judgments

— in circumstances that are tense, uncertain, and rapidly evolving.” Ryburn v. Huff , 132 S. Ct. 987, 992 (2012) ( quoting Graham v. Connor , 490 U.S. 386, 396

- 97 (1989) ). P olice officers must often make an “on

- the

- spot judgment based on incomplete information and sometimes ambiguous facts bearing upon the potential for serious consequences.” United States v. Taylor , 624 F.3d 626, 634 (4th Cir. 2010) ( quoting United States v. M artins , 413 F.3d 139 , 147 (1st Cir. 2005) )

. When they do so, court s should not “ engage in ‘ sh ould have/could have/would have ’ hindsight ” t o second

- guess their objectively reasonable judgments. Id

. For these reasons, the trial court correctly denied W ashington’s motion to suppress the incriminating evidence obtained from the later search pursuant to the warrant. The deputies’ initial warrantless entry did not violate the Fourth Amendment’s prohibition against unreasonable searches, and thus, the obser vations made during the ir protective sweep did not taint the application for the search warrant. 2

2 Given our holding, we need not address whe ther the search warrant would have justified the seizure of evidence from the trailer notwithstanding the allegedly tainted information gained during the initial warrantless entry. See generally Williams v. Commonwealth , 26 Va. App. 612, 619, 496 S.E.2d 1 13, 116 (1998); United States v. Moses , 540 F.3d 263, 271 (4th Cir. 2008); Ronald J. Bacigal, Criminal Procedure § 4:5 , at 81 (2011

- 12 ed.)

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- III. Because probable cause and exigent circumstances justified the deputies’ warrantless entry into Washington’s trailer, the trial court did not err in deny ing his motion to suppress. We thus affirm Washington’s convictions.

Affirmed

.