COURT OF APPEALS OF VIRGINIA 

Present: Judges Moon,* Willis and Elder 

Argued at Richmond, Virginia 

JOSEPH ALDEN LEWIS 

 OPINION BY 

v. Record No. 1852-96-2 JUDGE JERE M. H. WILLIS, JR. 

 DECEMBER 2, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL 

James A. Luke, Judge 

 C. David Whaley (Anthony G. Spencer; 

Morchower, Luxton & Whaley, on briefs), for 

appellant. 

 Michael T. Judge, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Joseph Alden Lewis was convicted of possession of a 

controlled substance, possession of a firearm while in possession 

of a controlled substance and possession of a firearm by a 

convicted felon. On appeal, he contends that the trial court 

erred in denying his motion to suppress evidence seized from his 

home by the police following their forcible entry to execute a 

valid search warrant. Finding no error, we affirm the judgment 

of the trial court. 

 In reviewing a trial court's denial of a motion to suppress, 

we consider the evidence adduced at both the trial and the 

suppression hearing, Spivey v. Commonwealth, 23 Va. App. 715, 

 

 *When the case was argued Judge Moon presided. Judge 

Fitzpatrick was elected Chief Judge effective November 19, 1997. 

 Judge Moon participated in the hearing and decision of this case 

prior to his retirement on November 25, 1997. 
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721, 479 S.E.2d 543, 546 (1997), and place "[t]he burden [] upon 

[the appellant] to show that this ruling, when the evidence is 

considered most favorably to the Commonwealth, constituted 

reversible error." Fore v. Commonwealth, 220 Va. 1007, 1010, 265 

S.E.2d 729, 731 (1980). 

 At approximately 5:00 p.m., on June 28, 1995, Officer King 

of the Prince George County Police Department obtained a warrant 

to search Lewis' residence in Hopewell for methamphetamine and 

items associated with its distribution. King contacted members 

of the Hopewell Police Department, the Petersburg Police 

Department and the Virginia State Police to assist in the 

execution of the warrant. The officers arrived at Lewis' house 

at approximately 12:30 a.m. on June 29, 1995. An officer had 

driven by Lewis' house about thirty minutes earlier to determine 

whether Lewis was home and whether any dogs were on the premises. 

 The officer observed a white pickup truck believed to belong to 

Lewis, and "thought [he] had seen a dog around the house." The 

officers did not know who, if anyone, was at the house. 

 King, Virginia State Police Special Agents Miers and Riley 

and at least two uniformed officers approached the front of the 

house. At least two other officers approached the rear. King, 

Miers and Riley had the words "police" or "State Police" 

emblazoned on their outer garments. All three had long hair, and 

both Miers and Riley were large men with beards. They wore their 

badges on chains around their necks or displayed on their outer 
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clothing. 

 Through a glass storm door, the officers at the front of the 

house could see Lewis sitting on a couch, talking on a portable 

telephone. The interior wooden door was open. The porch light 

was on and the interior lights allowed them to see into the 

living room. All of the officers were visible from the front 

door. King testified that he did not know whether anyone else 

was in the house at that time. 

 Miers testified that Riley knocked and announced, "State 

Police. Search warrant." Miers then repeated, "State Police. 

Search warrant. Open the door." Lewis stood up and asked, "How 

do I know it's the police." The officers repeated their 

identity, purpose and command "[n]umerous times. Five, ten, 

maybe more." During the exchange between Lewis and the officers 

on the porch, Miers heard what he believed was a large dog 

growling. The noise prompted the officers to order Lewis to 

"Control the dog. Secure the dog." Lewis told the officers that 

he did not have a dog. The officers determined later that the 

noise was due to Lewis' heavy breathing through a stoma. 

 After the passage of between forty to sixty seconds from the 

initial announcement, Riley struck the door with a battering ram. 

 The door did not open, and Lewis walked toward it. Riley rammed 

the door again, and Lewis backed up. When Riley rammed the door 

a third time, it opened. The record is unclear whether Lewis 

opened the door or the battering ram forced it open. 
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 "[P]rior to forcing entry into a dwelling," police must: 

"(1) knock; (2) identify themselves as police officers; (3) 

indicate the reason for their presence; and (4) wait a reasonable 

period of time for the occupants to answer the door." Gladden v. 

Commonwealth, 11 Va. App. 595, 598, 400 S.E.2d 791, 793 (1991). 

"Although the requirement that police officers executing a search 

warrant 'knock and announce' gives notice to the suspects of the 

officers' presence and the suspect's possible impending 

apprehension, it also discourages violence and volatile 

confrontations and encourages orderly executions of search 

warrants." Hargrave v. Commonwealth, 21 Va. App. 320, 323, 464 

S.E.2d 176, 177 (1995) (citation omitted). 

 Lewis contends that the officers lacked probable cause to 

believe that exigent circumstances required a forced entry. He 

also argues that the forced entry was unreasonable given the 

lateness of the hour, the physical appearance of the officers, 

his request for further identification, and his lack of 

suspicious activity. 

 A police officer's conduct in executing a search warrant is 

"judged in terms of its reasonableness within the meaning of the 

fourth amendment to the United States Constitution and Article I, 

§ 10 of the Constitution of Virginia." Grover v. Commonwealth, 

11 Va. App. 143, 145, 396 S.E.2d 863, 864 (1990). See Wilson v. 

Arkansas, 514 U.S. 927, 931 (1995). Moreover: 

 "[O]fficers are not required to possess 

either the gift of prophecy or the infallible 

wisdom that comes only with hindsight. They 
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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." 

Commonwealth v. Woody, 13 Va. App. 168, 171, 409 S.E.2d 170, 172 

(1991) (quoting Keeter v. Commonwealth, 222 Va. 134, 141, 278 

S.E.2d 841, 846 (1981)). 

 This case does not involve an unannounced entry by police 

officers. The officers knocked on the door, repeatedly 

identified themselves as law enforcement officers, and stated 

that they had come to execute a search warrant. Therefore, the 

decision in this case turns upon the final requirement of the 

announcement doctrine, whether the officers gave Lewis a 

reasonable opportunity to open the door. 

 In Wynne v. Commonwealth, 15 Va. App. 763, 427 S.E.2d 228 

(1993), several police officers arrived at a residence to execute 

a warrant to search for drugs. Through the glass storm door, a 

police officer "saw appellant in the living room trimming a 

Christmas tree and a man seated at the dining room table." Id.

at 764, 427 S.E.2d at 229. After the officer knocked and 

announced his presence, the appellant did not move and the man in 

the dining room gave no indication that he heard the officer. 

Id. After waiting about five seconds, officers entered the 

residence through the unlocked storm door. Id. at 765, 427 

S.E.2d at 229-30. In reversing the conviction, we concluded that 

the five-second delay was unreasonable under the circumstances 

and violated the Fourth Amendment. Id. at 767, 427 S.E.2d at 
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231. 

 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 

the knock, unless exigent circumstances arise 

or the occupant denies admission. 

Id. (emphasis added). 

 In Hargrave, officers executing a warrant to search for 

illegal drugs "could see into the house and down the hallway 

through the glass storm door" and "would be able to observe 

whether the occupants were reasonably responding to their 

notice." 21 Va. App. at 324, 464 S.E.2d at 178. Seeing no one, 

the officers waited two to three seconds after they had knocked 

and announced their presence and then entered the house. Id. We 

reversed the conviction, finding that the officers had not waited 

a reasonable time under the circumstances. However, we noted 

that: 

 [T]he lapse of a reasonable amount of time 

for occupants to respond after police 

officers knock and announce their presence 

may well be an exigent circumstance from 

which the officers can infer that if 

occupants are present in the residence, they 

are not responding for some reason. Thus, 

although the disposable nature of drugs is 

not an exigent circumstance that alone 

justifies a forced entry, the failure of the 

occupants to respond within a reasonable time 

after knocking and announcing will justify 

the use of that degree of force necessary to 

enter and execute a search warrant. 
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Id. at 326-27, 464 S.E.2d at 179 (emphasis added). 

 Acquiescence to the command of a search warrant is not 

discretionary. Police officers attempting execution of a valid 

warrant need not coax compliance from an unwilling or 

unresponding party. See Code § 19.2-56. Following the requisite 

"knock and announcement," the failure of an occupant to admit law 

enforcement officers after a reasonable opportunity to do so is 

tantamount to a refusal and justifies forcible entry. 

 We agree with the trial court's finding that the officers 

gave Lewis a reasonable opportunity to admit them. Forty to 

sixty seconds elapsed from the time the officers "knocked and 

announced" to their use of the battering ram. Cf. Wynne, 15 Va. 

App. at 767, 427 S.E.2d at 231; Hargrave, 21 Va. App. at 327, 464 

S.E.2d at 179. The officers announced that they were police 

officers. They wore appropriate markings, badges and uniforms 

identifying them as such. Lewis was awake and saw them. He 

failed to cooperate and made no attempt to unlock the door until 

the officers employed the ram. 

 Lewis was granted ample opportunity to surrender his privacy 

voluntarily. He failed to do so, and the officers properly 

considered his non-cooperation a refusal to permit their entry. 

 Accordingly, the officers acted reasonably in forcing the door 

open. 

 Furthermore, the officers faced unknown and possibly 

dangerous circumstances. They sought methamphetamine, a 
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controlled substance. King testified that the amount discovered 

could have been disposed of with a single toilet flush. The mere 

fact that drugs are easily disposed of does not by itself justify 

a forced entry. See Hargrave, 21 Va. App. at 326-27, 464 S.E.2d 

at 179. However, the longer an occupant denies admittance, the 

greater the need to enter the premises to prevent the destruction 

of evidence. See id.

 Society's interest in the safety of police officers when 

they are "conducting [their] duties is of paramount importance." 

Harris v. Commonwealth, 241 Va. 146, 151, 400 S.E.2d 191, 194 

(1991). The officers did not know whether anyone else was in the 

house. They were exposed to unknown perils while they waited 

outside. Furthermore, they heard a "growl," described as coming 

from "a large, unhappy dog." See Carratt v. Commonwealth, 215 

Va. 55, 58, 205 S.E.2d 653, 655 (1974). The potential danger to 

the officers heightened their need to gain immediate access to 

Lewis' house and to secure the premises. 

 The judgment of the trial court is affirmed. 

 Affirmed.