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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

Court of Appeals Issues Significant Fourth Amendment Decision

The Court of Appeals issued a single published decision today applying the exclusionary rule to evidence recovered from a warrantless search, finding that there were no exigencies that permitted law enforcement to forgo obtaining a warrant.

[Mrs. Truxton, the 5th grade grammarian who forever has a place in head, and I suppose my heart, requires me to pause her to instruct that although forego and forgo have distinct meanings—forego meaning "to go before" and forgo meaning "to do without"—it is not uncommon to find forego in place of forgo. Most standard dictionaries find such use acceptable, so feel free to express that you "will forego dessert" or "will forgo it," with the only caveat that you will have to explain why you would do such a thing.]

Quincy Dione Baskerville v. Commonwealth of Virginia is an appeal from a conviction on two counts of possession with intent to distribute a Schedule I or II drug, second or subsequent offense. At trial, Baskerville moved to suppress evidenced seized during a warrantless search of his home, contending that the police had neither probable cause to believe that evidence of a criminal enterprise would be found therein nor were their exigent circumstances warranting their not first seeking a search warrant. The circuit court denied the motion and accepted conditional guilty pleas permitting Baskerville to appeal the suppression issue.

Police were responding to a 911 call from a woman who said she was engaged in a verbal altercation with her boyfriend who had been drinking, had vandalized their apartment, and sometimes became violent when he drank. When the police arrived at the apartment complex, there were no signs of a disturbance. The officers proceeded to the unit from which the 911 call was initiated. They knocked on the door and a young woman, later identified as the 911 caller, Selena Dickens, opened the door and spoke as she walked out of the unit. She did not identify herself as the 911 caller at the time nor did she appear to be injured or distressed. Dickens then entered a neighboring apartment.

Moments later, an older woman came to the open door of the unit from which the 911 call was initiated. Presumably referring to Dickens, the woman told an officer that “the girl next door messed with my nephew” and they “were over there fighting or something.” When her nephew attempted to follow Dickens in the woman’s apartment, she instructed Dickens to call 911. Police observed a broken window “between the two apartments.”

Dickens opened the door of her apartment when an officer knocked. She appeared composed and unharmed. As Dickens stepped out to talk with the officer, he noticed another person, later identified as Baskerville, standing behind the apartment door. At the officers’ command, Baskerville showed his hands, revealing only a box of cigarettes. Officer Thornton asked, “do you mind if we just step in real quick?” Dickens consented, but appellant immediately refused and blocked the doorway, standing slightly behind the partially open door. He stated that he was a resident of the apartment and repeatedly told the officers they could not enter.

The police remained at the scene talking to Dickens, who told them that Baskerville had a “medical condition.” Through the partially open door, police observed an overturned television. Police interaction with Baskerville, who remained inside the apartment escalated to a shouting match and pointing of fingers, with Baskerville apparently making a threat to one of the officer’s family saying “I know where you live” or words to that effect. Throughout the confrontation, however, Baskerville repeated his refusal to permit police to cross the threshold. When Baskerville tried to close the door, an officer interposed his hand and leg then he and to other officers entered the apartment and restrained Baskerville.

Baskerville was arrested on a charge of domestic assault based on a statement from Dickens made after officers had entered the apartment that Baskerville had struck her earlier in the day. During a search of Baskerville's person incident to arrest, the police found heroin and cocaine in a bag appellant had slung over his shoulder.

The Court of Appeals, Judge Causey joined by Judge Humphreys and Sr. Judge Clements, reversed the circuit court’s denial of the suppression motion. The Court agreed that the officers had sufficient probable cause to believe that Baskerville had committed an offense – either the assault of Dickens or destruction or property – but disagreed that there were exigent circumstances that warranted their entry into the home to investigate or arrest Baskerville for those potential offenses before seeking either a search warrant or arrest warrant.

This case presents an interesting application of the exigency analysis and is required reading for all criminal defense attorneys. It makes the important distinction between the ability of an officer to place an individual under arrest for an offense that has been completed and one that is ongoing. Here, there was no possibility that Baskerville could destroy evidence of the suspected assault or property damage or that he could flee while the police obtained a search or arrest warrant. It should be noted that the circuit court applied the proper analysis of whether the police properly had entered the home. It did not make the error that some court’s have by focusing on the crime which was uncovered by the search incident to arrest, and finding that this evidence was not tainted because the arrest was proper. However, the Court of Appeals reached a different conclusion with respect to whether the arrest, and thus the subsequent incidental search, was required by the exigencies.

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