COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Frank and Senior Judge Hodges 

Argued by teleconference 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION* BY 

v. Record No. 0467-99-4 JUDGE LARRY G. ELDER 

 JULY 20, 1999 

CARLOS F. MARTINEZ 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

F. Bruce Bach, Judge 

 Virginia B. Theisen, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellant. 

 David Bernhard (Cheryl Gardner; Bernhard & 

Gardner, on brief), for appellee. 

 Carlos F. Martinez (defendant) stands indicted for two 

counts of assault and battery on a police officer. The 

Commonwealth appeals a pretrial ruling of the Fairfax County 

Circuit Court (trial court) granting defendant’s motion to 

suppress all evidence resulting from an allegedly illegal entry 

into defendant’s home. On appeal, the Commonwealth contends the 

trial court erroneously held (1) that no exigent circumstances 

justified the entry and (2) that the officer subjected defendant 

to a custodial interrogation without first Mirandizing him. We 

affirm the trial court’s ruling granting the motion to suppress. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.
I. 

FACTS 

 On the evening of October 19, 1998, Police Officer Kristi 

Denham received information that, during a 911 call, a man and 

woman were screaming in the background and that the woman 

sounded as if she was out of breath before the phone was 

disconnected. 

 Denham testified that she had responded to a minimum of one 

hundred domestic violence calls and that she knew, based on her 

experience and specialized training, that domestic violence 

situations tend to be emotional, high stress encounters. Her 

goal was to keep the suspected disputants apart so as to ensure 

their safety and the safety of others. 

 Officer Denham arrived on the scene, and her back-up 

officer, Officer Vickery, arrived about thirty seconds later. 

Officer Denham saw Milvia Galeano, defendant’s wife, standing in 

the front yard crying. Galeano had a “fresh” red mark on her 

neck and was holding her neck and pointing toward defendant, who 

was standing in the front door of the house. Denham spoke 

briefly to Galeano, who spoke Spanish and could not communicate 

very well in English. Officer Denham interpreted Galeano’s 

statements and actions to mean that defendant was the cause of 

her injury and her emotional upset. Although Officer Vickery 

spoke Spanish and could have communicated more easily with 

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Galeano, Denham chose to approach defendant before attempting, 

through Vickery, to obtain further information from Galeano. 

 Denham testified that the storm door was open several 

inches and that she thought defendant, who had a set of keys in 

his hand, was “getting ready to exit the house.” As Denham 

approached, she noticed two children inside the house with the 

defendant, and Denham became concerned for their safety, as well 

as the safety of Galeano, herself and Officer Vickery. Denham 

said her training taught her to be conscious of the risk of a 

parent taking his children hostage in order to prevent arrest or 

the risk that he would obtain a weapon with which to threaten 

those outside the house. Denham did not believe at that point 

that she had sufficient cause to arrest defendant or pat him 

down for weapons, but she wanted to question him about the 

possible domestic dispute and said she did not consider him free 

to leave. 

 Without requesting permission from defendant or Galeano, 

Denham opened the storm door and walked a few feet inside the 

door. Prior to Denham’s entry, defendant was “calm in that he 

wasn’t yelling [or] . . . screaming.” He was not threatening 

the children or anyone else, and Denham saw no weapons. The 

only behavior Denham thought was unusual or “strange” was that 

defendant refused to look at her, looking instead at the ground 

and shifting his eyes back and forth, which she interpreted to 

mean “he was looking for an avenue of escape.” 

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 Denham, viewing the keys in defendant’s hand as a potential 

weapon, took them out of his hand and tossed them onto the 

nearby couch. When she asked him twice what had happened, he 

told her both times to ask the children. In a more 

authoritative voice, Denham told him that he needed to tell her 

what happened. He then said that he and his wife had an 

argument over the use of the telephone and that, during the 

argument, “he somehow hit her neck.” Denham advised him that 

she was placing him under arrest for domestic assault. Denham 

said he refused to cooperate, and he subsequently was charged 

with assault and battery on both Denham and Vickery. 

 Galeano testified at the motion hearing with the aid of an 

interpreter. Galeano explained that she and defendant had had 

“an altercation” that “wasn’t anything great” and that her 

ten-year-old son called 911. She said she was outside when the 

police arrived because she was going to make a phone call. 

Galeano testified that, in response to Denham’s questions, 

Galeano told her three times that “everything was calm.” 

Galeano denied that she was crying when Denham arrived. When 

Officer Vickery arrived on the scene, Denham “went up to the 

door [and] . . . told [defendant] to put his hands up.” 

Defendant then asked Denham three times to “let [him] explain.” 

Galeano denied that defendant was responsible for the red mark 

on her neck and said that Officer Hall, “who . . . offered . . . 

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to take [her] to prison,” caused those marks without 

provocation.1

 Galeano admitted that defendant had been convicted for 

assaulting her on three prior occasions. No evidence indicated 

that Officer Denham was aware of this fact when she responded to 

the call. Further, no evidence indicated that appellant 

previously had harmed or threatened to harm his children. 

 The trial court granted the motion to suppress, ruling that 

no exigent circumstances existed to justify Denham’s warrantless 

entry into defendant’s home and that defendant was subjected to 

a custodial interrogation without benefit of Miranda warnings. 

II. 

ANALYSIS 

 At a hearing on a defendant’s motion to suppress, the 

Commonwealth has the burden of proving that a warrantless search 

or seizure did not violate the defendant’s Fourth Amendment 

rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380 

S.E.2d 656, 659 (1989). On appeal, we view the evidence in the 

light most favorable to the prevailing party, granting to it all 

reasonable inferences fairly deducible therefrom. See

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 

47, 48 (1991). “[W]e are bound by the trial court’s findings of 

historical fact unless ‘plainly wrong’ or without evidence to 

 1

 No evidence in the transcript of the motion hearing 

further identified Officer Hall or explained his involvement. 

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support them[,] and we give due weight to the inferences drawn 

from those facts by resident judges and local law enforcement 

officers.” McGee v. Commonwealth, 25 Va. App. 193, 198, 487 

S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United 

States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 

911 (1996)). However, we review de novo the trial court’s 

application of defined legal standards such as probable cause 

and reasonable suspicion to the particular facts of the case. 

See Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663. 

 The Fourth Amendment protects people from unreasonable 

searches and seizures. U.S. Const. amend. IV. “In terms that 

apply equally to seizures of property and to seizures of 

persons, the Fourth Amendment has drawn a firm line at the 

entrance to the house. Absent exigent circumstances, that 

threshold may not reasonably be crossed without a warrant.” 

Payton v. New York, 445 U.S. 573, 590, 100 S. Ct. 1371, 1382, 63 

L. Ed. 2d 639 (1980) (emphasis added). “Among the circumstances 

accepted as providing ‘exigent circumstances’ for a warrantless 

search [or seizure in a private residence] are those where a 

true ‘emergency’ exists.” Reynolds v. Commonwealth, 9 Va. App. 

430, 436, 388 S.E.2d 659, 663 (1990). As the United States 

Supreme Court has observed, 

[w]e do not question the right of the police 

to respond to emergency situations. . . . 

[T]he Fourth Amendment does not bar police 

officers from making warrantless entries and 

searches when they reasonably believe that a 

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person within is in need of immediate

aid. . . . “The need to protect or preserve

life or avoid serious injury is 

justification for what would be otherwise 

illegal absent an exigency or emergency.” 

. . . [A] warrantless search must be 

“strictly circumscribed by the exigencies 

which justify its initiation” . . . . 

Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408, 2413, 57 

L. Ed. 2d 290 (1978) (emphases added; citations and footnotes 

omitted). 

 In each such case, the court must determine “whether the 

law enforcement officers had probable cause at the time of their 

warrantless entry to believe that cognizable exigent 

circumstances were present.” Keeter v. Commonwealth, 222 Va. 

134, 141, 278 S.E.2d 841, 846 (1981) (entry to prevent 

destruction of evidence); see Oliver v. United States, 656 A.2d 

1159, 1166 (D.C. 1995) (equating “reasonable belief” language in 

Mincey with “probable cause”). We evaluate the existence of 

probable cause under a standard of objective reasonableness. 

See, e.g., Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 

1769, 1774, 135 L. Ed. 2d 89 (1996). “The officers 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, 222 Va. at 141, 278 S.E.2d 

at 846. 

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 Here, regardless of whether we view the facts in the light 

most favorable to the Commonwealth or to the defendant,2 the 

outcome is the same. Even under the Commonwealth’s version of 

the facts, Officer Denham lacked a sufficient legal basis for 

entering defendant’s home without a search or arrest warrant. 

Although a potentially volatile domestic situation existed in 

this case, the facts known to Officer Denham did not provide 

probable cause to believe the officer’s “immediate” entry into 

defendant’s home was necessary to “protect or preserve life or 

avoid serious injury” to Galeano or her children. Galeano 

herself was outside the home with Officer Vickery while 

defendant was inside the home. Although the officer’s 

experience and training are relevant to interpreting the 

dynamics of a potentially dangerous situation, they cannot be 

the sole basis for exigent circumstances without evidence to 

substantiate the officer’s concerns. The record contains no 

evidence that defendant was armed, raised his voice, or made any 

threats toward Galeano, his children or the officers. In fact, 

 2

 The Commonwealth argues that the trial court ruled on the 

motion to suppress without considering Galeano’s testimony and 

contends that Galeano’s testimony was inherently incredible. 

The trial court did not--and was not required to--make clear 

whether it believed the testimony of Officer Denham or the 

testimony of Milvia Galeano, or some combination of the two. 

However, it appears to have assumed, for the purpose of its 

ruling, that Galeano’s testimony was incredible and to have 

found under the version of the facts most favorable to the 

Commonwealth that no exigent circumstances justified Denham’s 

warrantless entry. 

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the evidence indicates that, prior to Officer Denham’s entry, 

appellant was calm and, at most, was “looking for an avenue of 

escape.” Defendant’s mere presence in his own home with his two 

children following some sort of altercation with his wife did 

not provide the officers with probable cause to believe that 

immediate entry was necessary to prevent death or serious 

injury. To hold otherwise would be to create a blanket 

exception to the warrant requirement in cases involving domestic 

disputes. We decline the Commonwealth’s invitation to do so. 

Compare Oliver, 656 A.2d at 1168 (holding that “person’s status 

as a kidnapping victim places him or her in continuing danger of 

harm at the hands of his or her captor,” permitting immediate 

entry of residence under emergency exception to warrant 

requirement, “even if the victim apparently is being well 

treated”); State v. Applegate, 626 N.E.2d 942, 943-44 (Ohio 

1994) (holding that police who responded to 911 call from wife 

reporting domestic dispute and asking that husband be removed 

from the home were justified in entering house under emergency 

exception to warrant requirement to ascertain welfare of wife 

after they arrived outside residence and heard an angry male 

voice and the sound of furniture being turned over). 

 Because we affirm the trial court’s ruling granting the 

motion to suppress all statements and evidence based on the 

officer’s illegal entry into the defendant’s home, we do not 

reach the issue of whether his statements about hitting his wife 

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should have been suppressed as the product of a custodial 

interrogation for which he received no Miranda warnings. 

 For these reasons, we affirm the ruling of the trial court 

and remand for further proceedings consistent with this opinion. 

We make no comment on the impact of this ruling on defendant’s 

two pending charges for assault and battery of a law enforcement 

officer as no such question is before us on appeal. 

Affirmed and remanded.

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