COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole 

Argued by Teleconference 

COMMONWEALTH OF VIRGINIA 

 OPINION BY 

v. Record No. 2387-96-4 JUDGE MARVIN F. COLE 

 MARCH 27, 1997 

STEVE THORNTON 

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY 

Carleton Penn, Judge Designate 

 Steven A. Witmer, Assistant Attorney General 

(James S. Gilmore, III, Attorney General; 

Marla G. Decker, Assistant Attorney General, 

on briefs), for appellant. 

 James C. Love, IV (Love, Keilsgard & 

Associates, P.C.), for appellee. 

 Steve Thornton was indicted for the possession of cocaine 

with the intent to distribute it, the simultaneous possession of 

cocaine and a firearm, and the possession of more than one-half 

ounce but less than five pounds of marijuana. The trial judge 

granted in part Thornton's motion to suppress evidence seized 

from his apartment, but denied the motion to suppress his 

statement to the police. The Commonwealth appealed pursuant to 

Code § 19.2-398, and Thornton cross-appealed issues decided 

adversely to him. For the reasons that follow, we affirm in part 

and reverse in part. 

FACTS

 At about 5:00 p.m. on June 2, 1995, the Leesburg Volunteer 

Fire Company received a call regarding a possible fire at the 

Cavalier Arms Apartments. When Peter Comanduras, a captain with 
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the fire company, arrived at the apartments, he met a person who 

said he had called 911 because he smelled smoke and heard a smoke 

detector sounding in the apartment next door to his own. Police 

officers also arrived at the scene and, in conjunction with the 

firefighters, knocked on the doors of apartments nearby in an 

effort to evacuate the building. Customarily, police officers in 

Leesburg respond with firefighters to the scene of a reported 

fire to facilitate traffic and crowd control. 

 Comanduras repeatedly knocked on the door of the apartment 

where the fire had been reported, but he received no response. 

He heard "what sounded like a smoke detector" inside the 

apartment. Comanduras directed Firefighter Rodey to the rear of 

the apartment to look through a ground floor window. Rodey 

reported that he could not see smoke or fire, but heard what 

sounded like "a smoke detector going" inside the apartment. 

Rodey removed the screen from an open window and entered the 

apartment through the window. He proceeded to the front door and 

admitted other firefighters to the apartment. 

 Upon entering the apartment, Comanduras saw a pager on a 

table near the door. The pager, which was emitting a loud 

beeping sound, was the source of the noise the firefighters had 

heard from outside the apartment. Stacked on the table was a 

large amount of cash with what appeared to be a small marijuana 

cigarette beside it. To his left in the living room Comanduras 

saw suspicious material in a bag on the coffee table. Rodey and 
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Firefighter Obaugh continued to check the rest of the apartment 

to determine if there was a fire which could have been smoldering 

and producing only very light smoke. Comanduras testified that, 

while Rodey and Obaugh were engaged in this activity, he stepped 

out of the apartment and asked the police officers to enter and 

secure the stack of money inside. Then, having found no one in 

the apartment and no evidence of a fire, the firefighters 

departed the scene, leaving the apartment and the money in the 

responsibility of the police officers. 

 Officer Jeffrey Hunt testified that he was present when 

Rodey entered the apartment through the window. Hunt then 

returned to the front door and entered the apartment with the 

firefighters and Officer Gerard Clarkson. Upon entry, the 

officers saw the stack of money. Hunt testified that a 

firefighter pointed out the item which appeared to be a marijuana 

cigarette to him and Clarkson. Hunt also saw on the living room 

coffee table a plastic bag containing a green leafy material he 

suspected was marijuana. 

 After the firefighters had left the apartment, Clarkson 

called his sergeant for assistance. Clarkson checked the 

apartment to verify that no one was present and for "officer's 

safety sake." Clarkson noticed a nine millimeter Glock handgun 

on the television in a bedroom. Beside the gun was a baggie 

containing a white substance which Clarkson suspected was 

cocaine. 
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 In response to Clarkson's call, Sergeant Willie Potter 

arrived at the apartment several minutes later. Clarkson and 

Hunt showed Potter the suspected marijuana and cocaine, the cash, 

the pager, and the gun. Potter field tested the suspected drugs, 

and the results of the tests were positive for cocaine and 

marijuana. After conducting the field tests, Potter placed the 

suspected cocaine and marijuana, the cash, the pager, a package 

of rolling papers, and the gun in a bag, which he took with him 

to obtain a search warrant for the apartment. 

 In the affidavit for the search warrant, Potter described 

the circumstances under which the firefighters and police had 

entered the apartment and found the cash, gun, and suspected 

drugs. He also stated that he field tested the substances and 

obtained positive readings for both marijuana and cocaine. 

Potter later executed the search warrant he obtained at the 

apartment and seized, among other things, additional cocaine and 

marijuana, prescription drugs, and food stamps. 

 On June 7, 1995, before Thornton was charged with any crime 

arising from the items seized from the Cavalier Arms apartment, 

Thornton's attorney contacted Potter. The attorney advised 

Potter that he wished to be present during any communication 

between Potter and Thornton. 

 On June 14, 1995, Thornton himself called Potter, said he 

had decided to proceed without his attorney, and agreed to speak 

with the police. Later that day, Thornton appeared at the police 
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station with his father, and Potter and another officer spoke 

with them in the library of the police station. At the beginning 

of the interview, Potter explained that Thornton was not in 

custody and was free to leave at any time. Thornton said he 

understood and did not desire to have an attorney present. 

Potter advised Thornton of his constitutional rights, and he 

executed a written waiver of his rights. Thornton then admitted 

that he lived in the apartment the police had searched. He made 

incriminating statements regarding the drugs, money, gun, and 

other items found there. 

 The trial judge ruled that the firefighters' and police 

officers' entry to Thornton's apartment was lawful and that any 

contraband items in their plain view were admissible. However, 

the judge found that the officers were not entitled to field test 

the suspected drugs found on the premises. Because the affidavit 

for the search warrant referred to the results of the field 

tests, the search warrant was invalid and any items seized 

pursuant to the warrant were inadmissible. The judge refused to 

suppress Thornton's statement, finding that he was not in custody 

when he had made it. 

SEIZURE OF EVIDENCE IN "PLAIN VIEW"

 "The theory of the plain view doctrine is that an individual 

has no reasonable expectation of privacy in items that are in 

plain view." Arnold v. Commonwealth, 17 Va. App. 313, 318, 437 

S.E.2d 235, 238 (1993). "The plain-view doctrine is grounded on 
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the proposition that once police are lawfully in a position to 

observe an item firsthand, its owner's privacy interest in that 

item is lost; the owner may retain the incidents of title and 

possession but not privacy." Illinois v. Andreas, 463 U.S. 765, 

771 (1983). "[I]n order for a seizure to be permissible under 

the plain view doctrine, two requirements must be met: '(a) the 

officer must be lawfully in a position to view and seize the 

item, [and] (b) it must be immediately apparent to the officer 

that the item is evidence of a crime, contraband, or otherwise 

subject to seizure.'" Conway v. Commonwealth, 12 Va. App. 711, 

718, 407 S.E.2d 310, 314 (1991) (en banc) (quoting Stokes v. 

Commonwealth, 4 Va. App. 207, 209, 355 S.E.2d 611, 612 (1987)). 

We address both these questions in the context of the facts at 

hand. 

 First, for the evidence seized by Potter without a warrant 

to have been admissible, Hunt and Clarkson must have been 

lawfully inside Thornton's apartment and in a position to observe 

the evidence. The Commonwealth bears a heavy burden to justify 

the warrantless entry into a residence, which is presumptively 

unreasonable and therefore contrary to the Fourth Amendment. See

Reynolds v. Commonwealth, 9 Va. App. 430, 435-36, 388 S.E.2d 659, 

663 (1990). However, because the trial judge found the entry 

reasonable, we view the evidence as to this issue "in a light 

most favorable to the Commonwealth, granting to it all inferences 

fairly deducible therefrom . . . ." Id. at 436, 388 S.E.2d at 
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663 (citing Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 

729, 731 (1980)). 

 In Reynolds, we stated that "[t]he concept of 'exigent 

circumstances' forms the basis of the recognized exceptions to 

the Fourth Amendment requirement that a warrant to search must be 

obtained prior to entry. Among the circumstances accepted as 

providing 'exigent circumstances' for a warrantless search are 

those where a true 'emergency' exists." Id. (citation omitted). 

 "A burning building clearly presents an exigency of sufficient 

proportions to render a warrantless entry 'reasonable.' Indeed, 

it would defy reason to suppose that firemen must secure a 

warrant or consent before entering a burning structure to put out 

the blaze." Michigan v. Tyler, 436 U.S. 499, 509 (1978). 

Furthermore, 

 [p]olice officers are 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 circumstances confronting 

the officers at the time they act. The 

reasonableness of a police officer's response 

in a given situation is a question of fact 

for the trial court and its ruling will not 

be disturbed on appeal absent clear and 

manifest error. The right of the police to 

enter and investigate in an emergency is 

inherent in the very nature of their duties 

as police officers. A warrantless search 

during an emergency situation is "justified, 

if not required, by the fact that 'the 

preservation of human life is paramount to 

the right of privacy protected by search and 

seizure laws and constitutional guaranties 

[sic].'" 

Reynolds, 9 Va. App. at 437, 388 S.E.2d at 664 (citations 
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omitted). 

 The facts, as they appeared to the firefighters and police 

officers called to the reported fire, justified a conclusion that 

an emergency existed inside Thornton's apartment, thus justifying 

the warrantless entry. The neighbor who made the report met the 

firefighters and officers upon their arrival and advised that he 

had smelled smoke emanating from Thornton's apartment. 

Furthermore, as the firefighters and officers confirmed, a loud 

beeping noise which sounded like a smoke detector could be heard 

from within the apartment. No one responded to the door of the 

apartment as police officers tried to evacuate other residents of 

the building. Under these circumstances, the firefighters and 

police officers lawfully entered Thornton's apartment to 

determine if there was a fire and to protect the lives and 

property of the apartment building residents. 

 Next, we consider the second half of the "plain view" 

equation. "The 'immediately apparent' requirement equates to 

probable cause in the context of 'plain view.'" Commonwealth v. 

Ramey, 19 Va. App. 300, 304, 450 S.E.2d 775, 777 (1994) (citing 

Texas v. Brown, 460 U.S. 730, 741-42 (1983)). Once inside the 

apartment, Hunt and Clarkson, as well as the firefighters, 

observed what appeared to be a bag of marijuana, as well as a 

marijuana cigarette, a large amount of cash, and a beeper. These 

circumstances provided Hunt and Clarkson with probable cause to 

believe that marijuana was present in the apartment, and they 
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were entitled to seize it. "[T]he fact that the officers [later] 

chose to field test the substance does not indicate that they 

lacked probable cause to believe the [substance] was contraband. 

 Testing for certainty's sake will not, by itself, undermine an 

otherwise valid probable cause determination." United States v. 

Buchanan, 70 F.3d 818, 826 n.5 (5th Cir. 1995), cert. denied, 116 

S. Ct. 1340 (1996). 

 As a part of the same transaction involving the entry into 

the apartment and the observance of suspected drugs, Hunt and 

Clarkson, remaining in the apartment to secure the scene, called 

for the assistance of other police officers. While they waited, 

Clarkson entered the bedroom to ensure the officers' safety and 

confirm the firefighters' conclusion about the reported fire. In 

the bedroom Clarkson observed in plain view a firearm and 

suspected cocaine. 

 Once police officers have effectuated a lawful warrantless 

entry and observed contraband inside, if there is a "'substantial 

risk that evidence will be lost or destroyed,'" the officers "may 

conduct a limited security check in those areas where individuals 

[who might destroy the evidence] could hide." Crosby v. 

Commonwealth, 6 Va. App. 193, 201, 367 S.E.2d 730, 735 (1988). 

See also Hunter v. Commonwealth, 8 Va. App. 81, 378 S.E.2d 634 

(1989). Clarkson did not exceed the scope of this authority in 

making the security check of the bedroom. See Hill v. 

Commonwealth, 18 Va. App. 1, 4, 441 S.E.2d 50, 51 (1994). 
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Therefore, the police officers also were entitled to seize from 

the bedroom the contraband found there in plain view. 

FIELD TESTS OF THE SUSPECTED DRUGS

 "[A] seizure lawful at its inception can nevertheless 

violate the Fourth Amendment because its manner of execution 

unreasonably infringes possessory interests protected by the 

Fourth Amendment's prohibition on 'unreasonable seizures.'" 

United States v. Jacobsen, 466 U.S. 109, 124 (1984). Thus, in 

determining whether the field tests of the suspected marijuana 

and cocaine were lawful, we "'must balance the nature and quality 

of the intrusion on the individual's Fourth Amendment interests 

against the importance of the governmental interests alleged to 

justify the intrusion.'" Id. at 125. 

 In upholding a police officer's field test of white powder 

contained in a package, the United States Supreme Court stated: 

 The law enforcement interests justifying the 

procedure were substantial; the suspicious 

nature of the material made it virtually 

certain that the substance tested was in fact 

contraband. Conversely, because only a trace 

amount of material was involved, . . . and 

since the property had already been lawfully 

detained, the "seizure" could, at most, have 

only a de minimus impact on any protected 

property interest. 

Id. at 125. 

 Prior to conducting the field tests in this case, the 

officers possessed the right to seize the substances they 

suspected were marijuana and cocaine. The property interest 

Thornton retained in the substances, if any, was outweighed by 
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the interests of the police in determining that the substances 

were, in fact, contraband. Thus, the field tests were not 

unreasonable and did not violate the Fourth Amendment. Because 

the field tests were lawful, Potter was permitted to include the 

results in the affidavit for the search warrant. The trial judge 

erred in ruling otherwise and in finding that items seized 

pursuant to the search warrant were inadmissible. 
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THORNTON'S STATEMENT TO THE POLICE

 On cross-appeal, Thornton contends that his statement to the 

police on June 14 violated his Fifth Amendment rights. Where an 

accused in a criminal case is subjected to custodial police 

interrogation, he first must be advised of his Fifth Amendment 

rights as defined in Miranda v. Arizona, 384 U.S. 436 (1966), for 

any statement he makes to be admissible in evidence. Custodial 

interrogation means "questioning initiated by law enforcement 

officers after a person has been taken into custody or otherwise 

deprived of his freedom of action in any significant way." Id.

at 444. 

 Thornton contends that he asserted his Fifth Amendment right 

to counsel through his attorney on June 7, and that his future 

contact with the police in the absence of counsel violated his 

Fifth Amendment rights. However, as we have noted, 

 Edwards [v. Arizona, 451 U.S. 477 (1981),] 

held that when an accused, during a custodial 

interrogation, invokes the right to have 

counsel present, the police may not resume 

the interrogation until the individual 

re-initiates communications and waives his 

right to counsel. The Edwards rule has not 

been expanded to include non-custodial 

demands for an attorney . . . . 

Tipton v. Commonwealth, 18 Va. App. 832, 834, 447 S.E.2d 539, 540 

(1994) (citation omitted). The record contains no evidence that 

the police had even contacted Thornton before June 7, much less 

deprived Thornton of his freedom in any way. Therefore, he was 

not in custody at that time and the purported assertion of 
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Thornton's right to counsel was ineffectual. See id. 

 Nor does the record reveal that Thornton was in custody when 

he talked to the police on June 14. "[T]he application of 

Miranda [is not] triggered 'simply because the questioning takes 

place in the station house, or because the questioned person is 

one whom the police suspect.'" Pruett v. Commonwealth, 232 Va. 

266, 271, 351 S.E.2d 1, 4 (1986) (quoting Oregon v. Mathiason, 

429 U.S. 492, 495 (1977)). "The mere presence of an officer and 

the mere fact of an investigation does not invoke Miranda." 

Jordan v. Commonwealth, 216 Va. 768, 772, 222 S.E.2d 573, 577 

(1976). 

 Thornton called Potter on June 14 and expressed his interest 

in talking to the police. Acting upon his own initiative, 

Thornton later presented himself at the police station. He was 

accompanied by his father. He was immediately advised that he 

was free to leave at any time and that he was not under arrest. 

Appellant said he understood, and there was no evidence Thornton 

was deprived of his freedom thereafter. Although Potter advised 

Thornton of his constitutional rights, he was not required to do 

so, and no perceived defect in that process rendered his 

statement inadmissible. For these reasons, the trial judge did 

not err in denying the motion to suppress Thornton's statement. 

 Thornton further argues that the trial judge erroneously 

refused to permit him to introduce evidence in support of his 

motion to suppress his statement. Code § 19.2-401 states that 
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"[t]he defendant shall have no independent right of appeal 

pursuant to § 19.2-398. If the Commonwealth appeals, the 

defendant may cross appeal from any orders from which the 

Commonwealth may appeal, pursuant to § 19.2-398." Code 

§ 19.2-398 does not permit appeal of a trial judge's evidentiary 

rulings at a hearing on a motion to suppress. See Code 

§ 19.2-398. Accordingly, this question is not an issue 

cognizable on cross-appeal pursuant to Code § 19.2-401, and we do 

not address it. 

 For the foregoing reasons, we affirm in part and reverse in 

part the trial judge's decision regarding the motion to suppress. 

We remand the case for further proceedings consistent with this 

opinion. 

 Affirmed in part, 

 reversed in part,

and remanded.