COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Kelsey and McClanahan 

Argued at Richmond, Virginia 

LEROY LESLIE KELLY, JR. 

 MEMORANDUM OPINION*

 BY 

v. Record No. 2777-03-2 JUDGE D. ARTHUR KELSEY 

 MARCH 8, 2005 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF HENRICO COUNTY 

George F. Tidey, Judge 

 Steven D. Goodwin (Gregory R. Sheldon; Goodwin, Sutton & 

DuVal, P.L.C., on brief), for appellant. 

 Stephen R. McCullough, Assistant Attorney General (Jerry W. 

Kilgore, Attorney General, on brief), for appellee. 

 Leroy Leslie Kelly, Jr. challenges his conviction for cocaine possession, claiming the police 

seized incriminating evidence from his home without a warrant. The officer seized the evidence, 

however, only after its discovery by a firefighter responding to an emergency medical distress at the 

home. Applying Jones v. Commonwealth, 29 Va. App. 363, 512 S.E.2d 165 (1999), we hold that 

the trial court correctly denied the motion to suppress. 

I. 

On appeal from a denial of a suppression motion, we examine the evidence in the light 

most favorable to the Commonwealth, giving it the benefit of all reasonable inferences. Medley 

v. Commonwealth, 44 Va. App. 19, 24, 602 S.E.2d 411, 413 (2004) (en banc); Slayton v. 

Commonwealth, 41 Va. App. 101, 103, 582 S.E.2d 448, 449 (2003). 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication.
 - 2 - 

Observing his son having what appeared to be a seizure, Leroy Kelly, Sr. placed a call 

requesting emergency medical assistance. Two teams of firefighters from the Henrico County 

Fire Department arrived at Kelly Sr.’s home. He escorted them to his son’s bedroom. His son 

appeared agitated and looked like he had been in a fight. He had a “quarter size red mark” on his 

forehead, “blood rings” around both lips, and a “wet spot” in the groin area of his pants. The 

small room was in disarray. A table had been knocked over, scattering various items across the 

floor. Kelly was “circling” the area of the room near a bureau dresser. 

One of the firefighters, Scott Henderlite, conducted a medical evaluation and concluded 

that “one of the possibilities that we came up with was a possible drug problem.” With that in 

mind, Henderlite “began looking for needles” to address those concerns and to ensure the 

“medical safety” of both Kelly and the firefighters on the scene. “We just kind of looked around 

for anything in our vicinity that we may come in contact with,” he explained. While looking for 

drug-related paraphernalia, Henderlite found a “glass tube” ⎯ later determined to be a “crack 

pipe” containing cocaine residue. It was found on the floor underneath the corner of Kelly’s bed. 

Henderlite picked up the tube to examine it and then placed it back on the floor. After that, 

Henderlite testified, the police officers were “called to the scene.” 

Henderlite remained with Kelly and the glass tube until the police officers arrived. As 

soon as they arrived, he alerted the officers to the glass tube found during the search for 

drug-related paraphernalia. Officer K.L. Motley placed Kelly under arrest for possession and 

conducted a search incident to arrest. In the immediate vicinity, Motley found the crack pipe 

underneath the bed. A photo taken by the officer shows a glass tube, with both ends broken off, 

covered internally with burn marks and a white residue. 

On top of the adjacent dresser, Motley found a tin can containing a rock of crack cocaine 

and a razor blade. Underneath the dresser, he found a second crack pipe along with items used 
 - 3 - 

for cleaning out such pipes. In one of the drawers of the dresser, Motley discovered a .380 

caliber semi-automatic handgun and ammunition. 

The officers escorted Kelly to the hospital and later charged him with possession of 

cocaine in violation of Code § 18.2-250. At trial, Kelly moved to suppress all incriminating 

evidence given the absence of a warrant authorizing the police to enter his home or to search his 

bedroom. The trial court held that, under the circumstances of this case, the police officer “can 

be there” and that there “wasn’t anything wrong with the arrest.” The court denied the motion to 

suppress the drug-related evidence, but granted the motion as to the firearm. Going into the 

dresser drawers, the court reasoned, went beyond the officers’ search-incident-to-arrest authority. 

On the merits, the court found Kelly guilty of possession of cocaine. 

II. 

 Though the ultimate question whether the officers violated the Fourth Amendment 

triggers de novo scrutiny, “we defer to the trial court’s findings of ‘historical fact’ and give ‘due 

weight to the inferences drawn from those facts by resident judges and local law enforcement 

officers.’” Slayton, 41 Va. App. at 105, 582 S.E.2d at 449-50 (citations omitted). To prevail on 

appeal, “the defendant 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.” 

Id. at 105, 582 S.E.2d at 450 (citation omitted); see also Barkley v. Commonwealth, 39 Va. App. 

682, 690, 576 S.E.2d 234, 238 (2003). 

In this case, Kelly concedes that his father invited the firefighters into the home. This 

consent satisfies the Fourth Amendment, particularly given the perceived emergency situation. 

See generally 3 Wayne R. LaFave, Search & Seizure § 6.6(a), at 451-53 (4th ed. 2004). Kelly 

objects, however, to the entry of the police officers into the home and their later seizure of the 

drugs and related paraphernalia from his bedroom. 
 - 4 - 

 To begin with, we agree with Kelly that the evidence did not show his father invited the 

police into the home. The police officers were “called to the scene” after the firefighters found 

the crack pipe underneath the corner of Kelly’s bed. When the officers arrived, the firefighters 

alerted them to the crack pipe. It was then that Kelly was arrested and the remaining evidence 

discovered during a search incident to arrest. 

 The question presented by this case is whether the police made an illegal, warrantless 

entry into Kelly’s home.1

 We answered this question in Jones: “After a fireman has observed 

evidence in plain view, he may summon a police officer, who may enter the residence and seize 

the evidence without first obtaining a warrant.” Jones, 29 Va. App. at 370, 512 S.E.2d at 168 

(citations omitted); see also Commonwealth v. Thornton, 24 Va. App. 478, 481-82, 486, 483 

S.E.2d 487, 488-89, 491 (1997) (finding seizure lawful where firefighter “stepped out of the 

apartment and asked the police officers to enter and secure” money and drugs found inside). 

Both the reasoning and holding of Jones squares with the majority rule, described by Professor 

LaFave this way: 

If firemen, conducting a lawful warrantless inspection come upon 

evidence of crime, they may then make a warrantless seizure of 

that evidence. In addition, they may ask for police assistance in 

this regard, and the police who enter in response to the request do 

not need a warrant for the entry or seizure. “Once the privacy of 

the residence has been lawfully invaded, it is senseless to require a 

warrant for others to enter and complete what those already on the 

scene would be justified in doing.” 

5 LaFave, supra § 10.4(c), at 179 (quoting from State v. Bell, 737 P.2d 254, 257-58 (Wash. 

1987)); see Jones, 29 Va. App. at 371, 512 S.E.2d at 168 (also citing Bell, 737 P.2d at 257-58). 

 1

 In Jones, we faced a similar question “whether it was objectively reasonable for a police 

officer assisting at the scene of an apartment fire to make a warrantless, non-consensual entry of 

a specific apartment in response to a firefighter’s statement, ‘I have something I want to show 

you.’” Jones, 29 Va. App. at 366, 512 S.E.2d at 166. 
 - 5 - 

 This follow-in-the-footsteps principle accepts that “where a lawful intrusion has already 

occurred, and a seizure by an official has validly taken place as a result of that intrusion, the 

invasion of privacy is not increased by an additional officer entering the residence.” Jones, 29 

Va. App. at 370, 512 S.E.2d at 168 (citing United States v. Green, 474 F.2d 1385, 1390 (5th Cir. 

1973)).2

 “A warrant is not required in these circumstances because the defendant no longer has a 

reasonable expectation of privacy for that area of the apartment where one official validly on the 

premises has made the lawful discovery, and another is merely preserving the incriminating 

evidence.” Id. at 371, 512 S.E.2d at 169. “The apparent conflict between the Constitution and 

common sense which the plain view doctrine has reconciled is the same misconception which we 

here seek to dispel.” Id. at 371, 512 S.E.2d at 168-69. “Almost every court that has considered 

this issue has held that a warrant is not necessary because the accused no longer enjoyed a 

reasonable expectation of privacy in the area where one officer is lawfully present.” Wengert v. 

Maryland, 771 A.2d 389, 399 n.7 (Md. 2001) (citing 16 cases, including Jones, 29 Va. App. at 

370, 512 S.E.2d at 168).3

 This doctrinal concession to “common sense,” Jones, 29 Va. App. at 371, 512 S.E.2d at 

168 (citation omitted), comes with two important limitations. First, police officers cannot make 

a warrantless entry simply because firefighters earlier did so. The officers can follow in the 

 2

 This principle has been accepted by the great majority of courts. See, e.g., United 

States v. Brand, 556 F.2d 1312, 1317 (5th Cir. 1977); United States v. Green, 474 F.2d 1385, 

1390 (5th Cir. 1973); Idaho v. Bower, 21 P.3d 491, 496 (Id. 2001); Wengert v. Maryland, 771 

A.2d 389, 399 (Md. 2001); State v. Eady, 733 A.2d 112, 120 (Conn. 1999); Mazen v. Seidel, 940 

P.2d 923, 927 (Ariz. 1997); Commonwealth v. Person, 560 A.2d 761, 766 (Pa. Super. 1989). Its 

reception has not been unanimous, however. See, e.g., United States v. Hoffman, 607 F.2d 280, 

283-84 (9th Cir. 1979). 

3

 See also United States v. Jacobsen, 466 U.S. 109, 125 (1984) (holding that “since the 

property had already been lawfully detained, the ‘seizure’ could, at most, have only a de minimis

impact on any protected property interest”); Illinois v. Andreas, 463 U.S. 765, 771 (1983) (“No 

protected privacy interest remains in contraband in a container once government officers 

lawfully have opened that container and identified its contents as illegal.”). 
 - 6 - 

footsteps of the firefighters only if they, during the course of their duties, discover what appears 

to be (using probable cause certitude) illegal contraband. See Jones, 29 Va. App. at 369, 512 

S.E.2d at 168 (applying footsteps doctrine only when an “incriminating object comes into view 

during the performance of the fireman’s duty”). 

Second, because the police “step into the shoes” of the firefighters, 5 LaFave, supra at 

179 (citation omitted), the officers are limited to only those areas the firefighters could go and 

only those times the firefighters could go there. If the officers breach these boundaries, they 

must have an independent justification for the additional intrusion ⎯ one not merely derivative 

of the firefighters. Id. Otherwise, the officers must limit themselves to the “footsteps” of the 

firefighters and cannot “exceed the scope of the firefighters’ earlier intrusion.” Jones, 29 

Va. App. at 371-72, 512 S.E.2d at 169 (citation omitted); see also Wengert, 771 A.2d at 399 n.7 

(recognizing that “the later officials must confine their intrusion to the scope of the original 

invasion unless a warrant or one of the exceptions to the warrant requirement justifies a more 

wide ranging search”).4

 Here, Kelly’s father thought his son might be having a seizure and placed an emergency 

call requesting help. Local firefighters were the first responders. When they arrived, they 

 4

 Most of the cases applying the footsteps doctrine involve emergency first responders 

like firemen, Jones, 29 Va. App. at 370, 512 S.E.2d at 168; Bell, 737 P.2d at 257-58, or other 

types of “emergency medical personnel,” Bower, 21 P.3d at 494. We do not address whether, if 

at all, the doctrine applies outside this context. 

We also have no occasion in this case to reconsider Jones or to attempt to limit it to 

police officers who can justify their warrantless entry on emergency grounds. Neither at trial, in 

his appellate brief, nor at oral argument on appeal did Kelly challenge Jones or our interpretation 

of it. Nor did Kelly, either on brief or at oral argument, attempt to distinguish it in the manner 

asserted by the dissent. To be sure, Kelly’s counsel conceded at oral argument that Jones would 

permit a police officer to make a warrantless entry if a firefighter summoned him after finding 

what he had probable cause to believe was contraband. “All the fireman has to say,” counsel 

argued, “is that I believed it was probably contraband.” For these reasons, Rule 5A:18, Rule 

5A:20(e), and the interpanel accord doctrine together preclude us from considering any challenge 

to Jones. 
 - 7 - 

entered the home and found a battered young man circling his disheveled bedroom. After 

assessing his medical condition, the firefighters concluded a “possible drug problem” explained 

Kelly’s symptoms. For his safety and their own, the firefighters searched the immediate area for 

needles or other drug paraphernalia that might confirm or dispel their suspicions. While doing 

so, they found what appeared to be a crack pipe. One of the firefighters picked up the pipe, 

examined it, and put it back where he found it.5

 At the moment of discovery, the firefighters were legally present in Kelly’s bedroom. 

They needed no warrant to be there. The discovery of the crack pipe occurred during the course 

of their emergency response duties, only after their medical assessment led them to suspect 

Kelly’s condition might be drug induced. They did not go beyond their charge or engage in a 

subterfuge to undertake some criminal investigation. After the police officers were called to the 

scene, the firefighters specifically alerted them to the “glass tube” crack pipe. The firefighters 

remained with Kelly in his bedroom. 

Having followed in the firefighters’ footsteps, Officer Motley had probable cause to 

arrest Kelly for cocaine possession. He likewise had the authority to search Kelly incident to his 

arrest. See Slayton, 41 Va. App. at 108, 582 S.E.2d at 451. It was that post-arrest search which 

resulted in the seizure of the second crack pipe, the crack rock, and the drug paraphernalia ⎯ all 

 5

 At oral argument on appeal, Kelly conceded he never argued in the trial court that “the 

firefighter, when he was testifying about the glass tube, should have said, ‘glass tube, i.e. crack 

pipe.’” Nor did he assert this point in his appellate brief. For this reason, we agree with the 

Commonwealth that Kelly waived this argument under Rules 5A:18 and 5A:20(e). At any rate, 

we find no merit in Kelly’s assertion (made during oral argument on appeal) that the trial judge 

inferred too much from Henderlite’s testimony. Read in context, Henderlite’s testimony ⎯

particularly when coupled with Officer Motley’s testimony ⎯ fully supports the factual basis 

implicit in the trial court’s holding that Officer Motley “can be there” after Henderlite’s 

discovery of the glass tube. On appeal of a suppression motion, we “give ‘due weight to the 

inferences drawn from those facts by resident judges and local law enforcement officers.’” 

Slayton, 41 Va. App. at 105, 582 S.E.2d at 449-50 (citations omitted); Jones, 29 Va. App. at 366, 

512 S.E.2d at 166 (recognizing that we must give “due weight to inferences appearing to have 

been drawn by the trial court”). 
 - 8 - 

items within Kelly’s reach in the close confines of his bedroom. See Chimel v. California, 395 

U.S. 752, 763 (1969) (holding that a search incident to arrest in a home may include the area 

within the arrestee’s “immediate control”).6

III. 

The trial court correctly denied Kelly’s suppression motion. As in Jones, the police 

officers merely “followed in the footsteps” of the firefighters and did not exceed the permissible 

scope of their intrusion. Jones, 29 Va. App. at 371, 512 S.E.2d at 169.7

 For this reason, neither 

Kelly’s arrest nor the resulting search incident to that arrest violated the Fourth Amendment. 

Affirmed.

 6

 Whether the firearm should have been suppressed is not a question before us. We thus 

offer no opinion on it. 

7

 Neither party cited Jones to the trial judge. But it is wrong to presume the judge did not 

understand the legal principles discussed in Jones. “The judge is presumed to know the law and 

to apply it correctly in each case.” Crest v. Commonwealth, 40 Va. App. 165, 175 n.3, 578 

S.E.2d 88, 91 n.3 (2003) (citation omitted); see also Breeden v. Commonwealth, 43 Va. App. 

169, 188, 596 S.E.2d 563, 572 (2004). Unless that presumption is rebutted, the very fact the trial 

judge ruled in favor of the Commonwealth necessarily implies that he decided all legally 

material factual disputes against the defendant. It follows, then, that “a reviewing court ‘faced 

with a record of historical facts that supports conflicting inferences must presume — even if it 

does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in 

favor of the prosecution, and must defer to that resolution[.]’” Wright v. West, 505 U.S. 277, 

296-97 (1992) (quoting Jackson v. Virginia, 443 U.S. 307, 326 (1979)). At oral argument on 

appeal, Kelly’s counsel stated that, even though no one cited Jones, the “underlying argument 

was similar” in the trial court. Finding nothing to rebut the presumption, we see no reason to 

reverse the factual inferences to favor the defendant on appeal. 
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Benton, J., dissenting. 

“[I]t is a cardinal principle that ‘searches conducted outside the judicial process, without 

prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- 

subject only to a few specifically established and well-delineated exceptions.’” Mincey v. 

Arizona, 437 U.S. 385, 390 (1978) (citation omitted). Although government agents who act in 

the absence of a search warrant may “‘seek exemption from the constitutional mandate [by 

showing] that the exigencies of the situation make that course imperative,’” Chimel v. California, 

395 U.S. 752, 761 (1969) (citation omitted), the principle is well established that “the general 

requirement that a search warrant be obtained is not lightly to be dispensed with, and ‘the burden 

is on those seeking [an] exemption [from the requirement] to show a need for it.’” Id. at 762 

(citation omitted). The evidence in this case did not satisfy the Commonwealth’s burden to show 

an exigency existed that justified the police officers’ warrantless entry into Leroy Leslie Kelly’s 

home. Therefore, I would hold that the evidence the officers seized and Kelly’s arrest were the 

product of an illegal entry and search. 

I. 

 The evidence proved that Scott Henderlite, a Henrico County fireman, went to Kelly’s 

home in response to a “call[ ] for a possible patient having a seizure.” When he arrived, three 

other firemen were already in a bedroom with Kelly. Kelly’s father was in the hallway outside 

the bedroom. The fireman testified that when he entered the bedroom Kelly “was sitting in [a] 

chair and he would get up and circle this area, sit back down, get up and circle the area.” He 

explained that Kelly “just seemed real agitated with the possible -- level of consciousness” and 

that his “concern was to try to calm [Kelly] and assess any kind of medical problems that he may 

have.” The fireman testified that they measured Kelly’s “vital signs” and found them to be 

within normal limits. He further testified as follows: 
 - 10 - 

After assessing the patient, we were trying to determine what was 

causing his condition, and one of the possibilities that we came up 

with was a possible drug problem. And after ascertaining that, we 

began looking for needles, mainly for out safety. 

He found a glass tube under the bed, picked it up, and then put it back where he had found it. 

 No police officers were present when this occurred, and the record suggests that they had 

not earlier been requested to go to Kelly’s residence. The fireman testified that after he saw the 

glass tube the Henrico police “eventually were . . . called to the scene.” When two police 

officers arrived, the fireman alerted them to the glass tube. 

 Officer Motley was the first police officer to arrive. The record does not establish that 

anyone consented to his entry to the residence. When Motley entered the bedroom, Kelly was 

sitting and “being assessed by the [firemen].” He explained the following: 

When I initially got there, my initial conversation was I asked 

[Kelly] what was wrong. He said nothing was wrong. He said, 

“My father had called the fire department because I guess he 

thought I was sick.” I asked him about the tube that was in plain 

view in the floor. He said he didn’t know what that was, the fire 

guys had brought a lot of stuff in and they must have brought that 

in. He stated he had never used drugs before. 

When Officer Trunk arrived, Officer Motley was already at the residence. Officer Trunk 

testified that he went to the bedroom and did not testify that anyone consented to his entry to the 

residence. He described the following events that occurred after he entered: 

[Kelly] was actually standing up and Officer Motley had to ask 

him for his ID. There was stuff that’s all over the ground here, 

pencils, markers, some scissors, and he bent down and attempted 

to pick those up. Officer Motley said, “Don’t worry about that. 

Just stand on up for me.” Trying to interview [Kelly] more about 

what had happened and again he was just saying nothing 

happened, not much happened. And then he bent down again to 

pick up and retrieve all the stuff to kind of clean up the room, 

because there was stuff scattered all over the floor. 
 - 11 - 

Officer Motley testified that he asked for Kelly’s identification after “the fire guys had 

finished with their assessment.” He gave no reason for asking Kelly for an identification 

document but does explain the following: 

At that point he stood up and he started bending down towards the 

floor. And there was no ID down on the floor, but there were other 

items. The room was in disarray, like a table had been knocked 

over, there were scissors, pencils. There was a screwdriver in the 

floor and he was reaching down towards that and I told him not to 

do that any more. 

* * * * * * * 

I told him not to bend down on the floor any more. A few seconds 

later he bent down again. At that point I placed him in a pair of 

handcuffs and informed him that he was not under arrest, but I was 

detaining him because he was making me nervous bending down 

towards potential weapons on the floor. 

 After Officer Motley handcuffed Kelly, he examined the tube the fireman earlier had 

found and decided to arrest Kelly. He explained his reason for doing so as follows: 

Q. Once you observed that the tube with the white substance, did 

eventually you place [Kelly] under arrest? 

A. I was trying not to. I was hoping he would go to the hospital to 

get treated voluntarily, so I could take the items to the lab and not 

have to babysit him at the hospital, if we placed him under arrest. 

There were some issues. He didn’t want to go. The firefighters 

were going to do implied consent, so just to make it easier I 

officially placed him under arrest, so there wouldn’t be any issues 

with consent to treatment. 

* * * * * * * 

Q. And you arrested him, you said because you wanted to not 

have a problem with him giving consent for treatment, you wanted 

to get him out of the room? 

A. Correct. There were some gray areas in there and it just made 

it easy and I placed him under arrest. 

After Officer Motley arrested Kelly, he searched Kelly and the room as an incident to the arrest. 
 - 12 - 

II. 

The Fourth Amendment affords a person in his home the highest protection from 

government intrusion. 

The Fourth Amendment protects the individual’s privacy in a 

variety of settings. In none is the zone of privacy more clearly 

defined than when bounded by the unambiguous physical 

dimensions of an individual’s home -- a zone that finds its roots in 

clear and specific constitutional terms: “The right of the people to 

be secure in their . . . houses . . . shall not be violated.” That 

language unequivocally establishes the proposition that “[at] the 

very core [of the Fourth Amendment] stands the right of a man to 

retreat into his own home and there be free from unreasonable 

governmental intrusion.” 

Payton v. New York, 445 U.S. 573, 589-90 (1980) (citations omitted). Because of these 

protections, the government bears a heavy burden of proving a compelling need to enter a home 

without a warrant. Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984); Chimel, 395 U.S. at 762. 

 The Commonwealth did not meet that burden and did not suggest at trial that it had. 

Furthermore, the trial judge did not even address the reason for excusing the warrant requirement 

in this case. Kelly’s attorney argued that the evidence proved a warrantless entry by the police 

officers, that the officer received no consent to enter, and that the entry was not justified by 

exigent circumstances. The prosecutor did not in any fashion address the entry and only argued 

that the search was valid because it was “a search incident to [and] contemporaneous with the 

arrest.” In denying the motion to suppress, the trial judge merely ruled that the police officer 

“can be there.” For the first time on appeal, the Commonwealth argues that the police officers 

“lawfully followed in the footsteps of the firefighters.” At trial, however, the prosecutor argued 

no facts that would form the predicate basis for this suggestion and, indeed, never made this 

argument. Thus, we cannot conclude that the trial judge’s cryptic ruling that the officers “can be 

there” is sufficient to establish that the Commonwealth met its heavy burden of proof. 
 - 13 - 

In support of the argument now made on appeal that the police officers “lawfully 

followed in the footsteps of the firefighters,” the Commonwealth relies upon Jones v. 

Commonwealth, 29 Va. App. 363, 512 S.E.2d 165 (1999). Even if we assume the trial judge 

contemplated Jones when he ruled, it provides no basis upon which to uphold the trial judge’s 

refusal to suppress the evidence. 

Jones is based on the Supreme Court’s decision in Michigan v. Tyler, 436 U.S. 499 

(1978). Significantly, the Court held in Tyler that “the Fourth Amendment extends beyond the 

paradigmatic entry into a dwelling by a law enforcement officer [or health, fire, or building 

inspectors] in search of the fruits or instrumentalities of crime.” 436 U.S. at 504. The Court 

further held that even when the search is “for administrative purposes” the law recognizes 

no diminution in a person’s reasonable expectation of privacy nor 

in the protection of the Fourth Amendment simply because the 

official conducting the search wears the uniform of a firefighter 

rather than a policeman, or because his purpose is to ascertain the 

cause of a fire rather than to look for evidence of a crime, or 

because the fire might have been started deliberately. 

Id. at 506. In view of these principles, the Supreme Court reiterated that it has recognized only a 

narrow exception to the Fourth Amendment warrant requirement when an exigency exists, 

giving rise to “compelling need for action and no time to secure a warrant.” Id. at 509. It found 

such an exception in Tyler, holding as follows: 

 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. 

And once in a building for this purpose, firefighters may seize 

evidence of arson that is in plain view. 

436 U.S. at 509. The Supreme Court specifically has noted that it “has recognized only a few 

such emergency conditions, see e.g., United States v. Santana, 427 U.S. 38, 42-43 (1976) (hot 

pursuit of a fleeing felon); Warden v. Hayden, 387 U.S. 294, 298-99 (1967) (same); Schmerber 
 - 14 - 

v. California, 384 U.S. 757, 770-71 (1966) (destruction of evidence); Michigan v. Tyler, 436 

U.S. 499, 509 (1978) (ongoing fire), and [has further noted that it] has actually applied only the 

‘hot pursuit’ doctrine to arrests in the home, see Santana, supra.” Welsh, 466 U.S. at 750. 

 We relied upon the Tyler fire exception in Jones, where the evidence established that 

“police and firefighters responded to a fire at appellant’s apartment.” 29 Va. App. at 366, 512 

S.E.2d at 166. As a firefighter was ventilating the building and searching for people inside, he 

found a gun and narcotics. Id. at 366-67, 512 S.E.2d at 166. Citing Tyler, we held that the 

exigent circumstances of the fire negated any claim that a Fourth Amendment violation occurred 

when the firefighter discovered the contraband. We further held that “[t]he exigency created by 

the fire still existed when [the police officer] entered the building” in response to the firefighter’s 

summons to come and view his discovery. Jones, 29 Va. App. at 372, 512 S.E.2d at 169. 

The rule we adopted in Jones is that the exigency of a fire excused the warrant 

requirement and permitted “intrusion by government officials [to] continue for a reasonable time 

after the fire has been extinguished to allow fire officials to fulfill their duties, including making 

sure the fire will not rekindle, and investigating the cause of the fire.” 29 Va. App. at 369, 512 

S.E.2d at 168; accord Tyler, 436 U.S. at 510. In Tyler, the Supreme Court reasoned that entry 

and reentry by fire and other personnel were “continuations of the first entry,” did not require a 

warrant, and were thus reasonable. Id. at 510-11. Both Tyler and Jones recognize, however, that 

when the exigency ends a warrant is required. Tyler, 501 U.S. at 510; Jones, 29 Va. App. at 369, 

512 S.E.2d at 168. 

Tyler and Jones do not assert or support the proposition that police have a right of entry 

to follow the “footsteps” of firemen who enter a home to provide para-medical assistance or to 

transport a person to seek medical assistance. Simply put, Tyler and Jones do not provide the 

proper analytical framework for this case because the exigency that excused the warrant 
 - 15 - 

requirement in those cases, that is, a fire, did not exist here. The evidence proved that the sole 

justification for the police officers’ warrantless entry was to investigate the fireman’s belief that 

the tube he found while looking around the room for his “safety” may have contained a narcotic. 

When Kelly’s father gave firemen consent to enter the home, no fire or threat of fire 

existed. The evidence also did not prove a life-threatening medical condition existed. The 

fireman testified that when he arrived, although Kelly was “agitated” and behaving strangely, 

Kelly appeared to be conscious and his vital signs were “within normal limits.” The fireman, by 

his own admission, said the search was not done to diagnose or treat Kelly, but “primarily for 

[the firemen’s] safety.” In addition, the evidence failed to establish that a medical emergency 

existed when the police arrived. Kelly was responding and had normal vital signs. The police 

officers used the occasion to interrogate him about criminal conduct. Moreover, Officer Trunk 

testified that after Kelly had been arrested and led from the room, they allowed Kelly to return to 

the room to get a jacket and shoes before the firemen took him to the hospital. This evidence 

simply failed to prove an exigency or a medical emergency. 

The mere fact that firemen or other para-medical personnel have entered a home does not 

eliminate the protection the Fourth Amendment affords an individual against warrantless 

governmental intrusion. Likewise, entry into a home by one government employee does not 

mean that law enforcement officers can follow into the home, for any purpose, and without a 

warrant. 

Without a fire, or an exigency arising from a fire, there was no reason for the police 

officers to enter Kelly’s home without a warrant. That they were “called to the scene” is not a 

basis upon which they could lawfully enter Kelly’s residence without a warrant or consent. The 

fireman’s discovery of a broken glass tube in the home does not excuse the entry by the police 

officers without first obtaining a warrant. 
 - 16 - 

What occurred here is precisely what the Fourth Amendment expressly prohibits: an 

officer in the field, instead of a neutral and detached magistrate, made the determination that 

probable cause existed to enter Kelly’s home. 

The point of the Fourth Amendment, which often is not grasped by 

zealous officers, is not that it denies law enforcement the support 

of the usual inferences that reasonable men draw from evidence. 

Its protection consists in requiring those inferences be drawn by a 

neutral, detached magistrate instead of being judged by the officer 

engaged in the often competitive enterprise of ferreting out crime. 

Any assumption that evidence sufficient to support a magistrate’s 

disinterested determination to issue a search warrant will justify 

the officers in making a search without a warrant would reduce the 

[Fourth] Amendment to a nullity and leave the people’s homes 

secure only in the discretion of police officers. 

Johnson v. United States, 333 U.S. 10, 13-14 (1948) (footnote omitted). Likewise, the fireman, 

acting in a para-medical capacity, was not constitutionally authorized to make a probable cause 

determination and invite police officers to enter the residence without a warrant, to search the 

premises, and to make a warrantless arrest within the residence. 

 “Prior decisions of [the Supreme] Court . . . have emphasized that exceptions to the 

warrant requirement are ‘few in number and carefully delineated.’” Welsh, 466 U.S. at 749 

(citations omitted).8

 8

 Because individuals possess the highest expectation of privacy in their homes, the 

Supreme Court “ordinarily afford[s] the most stringent Fourth Amendment protection” to the 

sanctity of private dwellings. United States v. Martinez-Fuente, 428 U.S. 543, 561 (1976). 

Thus, the police officer’s warrantless entry to Kelly’s home and seizure therein are perforce in a 

different category of constitutional violations than seizures such as in United States v. Jacobsen, 

466 U.S. 109, 111-12 (1984) (where federal agents reopened a package in a Federal Express 

office and found cocaine after employees in that office earlier had opened the package and found 

white powder), and in Illinois v. Andreas, 463 U.S. 765, 767 (1983) (where a customs inspector 

opened a package at the airport, found concealed marijuana, and then permitted a drug 

enforcement officer to test the marijuana before resealing it). Significantly, in neither case did 

the officers use the discovery of narcotics as a basis to enter a residence without a warrant. In 

Jacobsen, the officers “obtained a warrant to search the place to which [the package] was 

addressed, executed the warrant, and arrested respondents.” 466 U.S. at 112. In Andreas, the 

officers delivered the package to an apartment then “left to secure a warrant to enter and search 

respondent’s apartment.” 463 U.S. at 767. Although an officer later arrested Andreas after he 
 - 17 - 

The presence of a search warrant serves a high function. Absent 

some grave emergency, the Fourth Amendment has interposed a 

magistrate between the citizen and the police. This was done not 

to shield criminals nor to make the home a safe haven for illegal 

activities. It was done so that an objective mind might weigh the 

need to invade that privacy in order to enforce the law. The right 

of privacy was deemed too precious to entrust to the discretion of 

those whose job is the detection of crime and the arrest of 

criminals. 

McDonald v. United States, 335 U.S. 451, 455-56 (1948).9

 

emerged from his apartment with the package, the seizure and arrest did not occur inside the 

residence without a warrant even though the officers knew from the prior discovery during an 

administrative search at the airport that narcotics were within the apartment. In both Jacobsen

and Andreas, the officers sought warrants to enter and search the residences because they 

understood the Supreme Court’s unambiguous ruling that the warrantless “physical entry of the 

home is the chief evil against which the wording of the Fourth Amendment is directed.” United 

States v. United States District Court, Eastern District of Michigan, 407 U.S. 297, 313 (1972). 

9

 The Payton mandate is quite clear: absent exigent circumstances, the threshold of the 

home cannot be crossed without a warrant. 445 U.S. at 583-90. Yet, the Commonwealth would 

have us adopt a rule that simply ignores the Fourth Amendment’s fundamental protection of the 

home. In this case, officers could have easily obtained a warrant, affirming the warrant’s 

procedure, “long adhered to” and designed to “minimize the danger of needless intrusions” as 

occurred here. Id. at 586. The historical foundation of the Fourth Amendment required a 

warrant under these circumstances. 

 It is thus perfectly clear that the evil the Amendment was 

designed to prevent was broader than the abuse of a general 

warrant. Unreasonable searches or seizures conducted without any 

warrant at all are condemned by the plain language of the first 

clause of the Amendment. Almost a century ago the Court stated 

in resounding terms that the principles reflected in the Amendment 

“reached farther than the concrete form” of the specific cases that 

gave it birth, and “apply to all invasions on the part of the 

government and its employees of the sanctity of a man’s home and 

the privacies of life.” 

Id. at 585 (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)). 

 The Court’s reasoning in Payton is based on the heightened expectations of privacy 

inherent in private residences. Thus, the Court recognized that “‘[a] greater burden is placed . . . 

on officials who enter a home or dwelling without consent’” because “‘[f]reedom from intrusion 

into the home or dwelling is the archetype of the privacy protection secured by the Fourth 

Amendment.’” 445 U.S. at 587 (quoting Dorman v. United States, 435 F.2d 385, 389 (D.C. Cir. 

1970)) (emphasis added). The Court continued: 
 - 18 - 

 This case expands the exceptions to the warrant requirement in a way not supported by 

the rationale for creating the exceptions. For these reasons, I dissent. 

 

“To be arrested in the home involves not only the invasion of those 

attendant to all arrests, but also an invasion of the sanctity of the 

home. This is simply too substantial an invasion to allow without 

a warrant . . . in the absence of exigent circumstances, even when it 

is accomplished . . . when probable cause is clearly present.” 

Payton, 445 U.S. at 588-89 (quoting United States. v. Reed, 572 F.2d 412, 423 (1978)) 

(emphasis added).