COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Beales, Ortiz and Causey Argued by videoconference
COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION* BY v. Record No. 1076-22-4 JUDGE RANDOLPH A. BEALES NOVEMBER 15, 2022 JONATHAN DANIEL MIHOKOVICH
FROM THE CIRCUIT COURT OF FREDERICK COUNTY William W. Eldridge, IV, Judge
Ryan W. Perry, Assistant Commonwealth’s Attorney (Ross Spicer, Commonwealth’s Attorney, on briefs), for appellant.
Joseph R. Pricone (Mark B. Williams & Associates, PLC, on brief), for appellee.
On July 1, 2020, deputies from the Frederick County Sheriff’s Office entered the motel
room of Jonathan Daniel Mihokovich without a search warrant because they said they believed that
he was experiencing a drug overdose. The trial court found that the emergency aid exception did
not apply and granted Mihokovich’s motion to suppress evidence found in the room. Pursuant to
Code § 19.2-398(A)(2), the Commonwealth appealed the trial court’s order suppressing the
evidence. The Commonwealth now argues on appeal that the trial court erred in “finding that the
officers acted unreasonably when they did not knock before entering and that entry into the hotel
room was not objectively reasonable under the emergency aid exception.”
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I. BACKGROUND1
While on a foot patrol at approximately 4:00 p.m. at and around the Red Roof Inn on July
1, 2020, Deputies Marsten and Lewis of the Frederick County Sheriff’s Office encountered an
“impaired, intoxicated person,” identified as Jesse Lake, coming out of the motel room where
Jonathan Mihokovich was staying. The curtain on the motel room window was partially open so
that the deputies could see Mihokovich and a woman lying in bed, their heads on the pillows and
their bodies largely under the covers. Deputy Marsten noted that they appeared to be sleeping.
Body camera footage showed that when the deputies first approached the room, Deputy Marsten
said he would “make contact” with the people inside and started to knock on the door but then
pulled his hand away without knocking.
The deputies talked with Lake for about ten minutes while they stood outside
Mihokovich’s motel room. During a pat-down search of Lake, Deputy Lewis found syringes and
“a baggie of white powder,” which Lake identified as fentanyl. Lake said he had used fentanyl
in a van, but Deputy Lewis mistakenly thought that Lake said that Mihokovich also had used
fentanyl in the van. Lake told the deputies that Mihokovich had an infection on his right foot
and that he had carried Mihokovich into the motel room and put him in bed. Lake said that
Mihokovich used drugs for pain due to his foot infection, but he had not seen him use any that
day. Lake also said he had “no idea” whether there were drugs in the room. When asked by the
deputies, Lake denied that Mihokovich had overdosed and was “yacked out.”2 He told Deputy
1 In addition to testimony from Deputy Lewis, the trial court saw body camera footage from both Deputy Lewis and Deputy Marsten. We give deference to the trial court’s interpretation of video evidence and review it “for the limited purpose of determining whether any rational factfinder could have viewed it as the trial court did.” Meade v. Commonwealth, 74 Va. App. 796, 806 (2022). 2 According to the record, “yacked out” means having overdosed on drugs. -2- Lewis that he had checked on Mihokovich after bringing him to the room, but he acknowledged
that he did not know whether Mihokovich was awake when he left the room.
Deputy Lewis testified that he knew that there was a greater chance of an overdose with
fentanyl and that “time is [of the] essence” if a person had overdosed. Although Deputy Lewis
did not see any narcotics or drug paraphernalia on the bed or in the room when he looked
through the window, he told Deputy Parker (also of the Frederick County Sheriff’s Office) that
someone may be “yacked out” inside the room. Deputy Parker said that they had enough
information to obtain a search warrant, but Deputy Lewis responded that they should open the
door “for safety” and told Deputy Parker to get the key for the room.
Deputies Lewis and Marsten continued to talk with Lake about his construction jobs—
and that he also did drywall installation—while they waited about two more minutes for Deputy
Parker to return with the room key. Neither deputy made any attempt to rouse the occupants of
the room by shouting at them, tapping on the window, or knocking on the door. Deputy Lewis
testified that although he had time to knock on the door while waiting for the key to see if the
people in the bed could be roused, he did not knock because he was focused on his conversation
with Lake. As Deputy Lewis approached the door with the key to open it, Deputy Marsten noted
that the people in the room were both still sleeping. After Deputy Lewis then entered the room
with his firearm drawn, the three deputies announced their presence and immediately secured the
room.
Tessi Huddle, who was in the bed with Mihokovich, finally woke up about thirty seconds
after the deputies had entered the room and announced themselves. The deputies did not
immediately approach Mihokovich but asked Huddle if Mihokovich was breathing. When she
said he was breathing, they asked her to wake him up. Huddle could not rouse Mihokovich, and
-3- Lewis called the Frederick County Emergency Medical Services (“EMS”). EMS personnel soon
arrived and administered Narcan to Mihokovich to successfully revive him.
While EMS personnel arrived and treated Mihokovich, Huddle gave the deputies consent
to search the room. They found some marijuana and “meth pipes” before Mihokovich regained
consciousness and objected to the search of the room. Huddle then revoked her consent, and the
deputies stopped their search until they later obtained a search warrant.
Mihokovich was charged with one count of possession of a controlled substance, one
count of distribution of a controlled substance, three counts of possession with intent to distribute
a controlled substance, and four counts of conspiracy to possess with intent to distribute a
controlled substance. Mihokovich filed a motion to suppress evidence, which the trial court
granted after pretrial hearings on May 18, 2022 and June 8, 2022. Citing Merid v.
Commonwealth, 72 Va. App. 104 (2020), aff’d, 300 Va. 77 (2021), the trial court noted that the
emergency aid exception allowed police officers to enter without a warrant if they had “an
objectively reasonable basis for believing that a person within the house, or residence, is in need
of emergency aid.” Stating that the emergency aid exception was fact-specific, the trial court
concluded that under “the specific facts of this case, it was not reasonable that the deputies did
not knock to see whether the individuals inside responded,” because a simple “knock on the
window, or door, could dispel whether emergency aid[] was needed by seeing if the individuals
were unresponsive or not.” The trial court emphasized both that the deputies had time to do this
and that they had a direct view of the individuals in the room. Consequently, the trial court ruled
that the emergency aid exception did not apply in this case.
Subsequently, at a sentencing hearing on an unrelated matter, the trial court found that
Mihokovich had been overdosing on July 1, 2020 when the deputies entered the motel room.
The Commonwealth then filed a request for clarification asking the trial court to clarify whether
-4- Mihokovich’s overdose was a factual finding that pertained to the suppression hearing and to
clarify whether the deputies believed an overdose was occurring “could be a mistake of fact.”
The trial court clarified that the suppression hearing and the unrelated sentencing hearing
were two separate cases. Further, the trial court stated that the question it considered in the
suppression matter was whether it was objectively reasonable for the deputies to believe that a
person inside the motel room was in need of immediate emergency aid before entering the motel
room without a search warrant—rather than whether Mihokovich was in fact overdosing. The
trial court stated that “the mistake of fact” to which it referred actually concerned Deputy
Lewis’s mishearing and misunderstanding Lake to have supposedly said that Mihokovich had
used fentanyl in the van with Lake. The trial court reaffirmed its conclusion that, whether or not
Mihokovich used fentanyl in the van, the emergency aid exception did not apply under the
specific facts of this case. The Commonwealth then appealed.
II. ANALYSIS
In reviewing the trial court’s decision to grant the suppression motion, this Court
considers the evidence in the light most favorable to Mihokovich, as the prevailing party below,
and grants him all reasonable inferences fairly deducible from that evidence. See Sidney v.
Commonwealth, 280 Va. 517, 520 (2010); Commonwealth v. Grimstead, 12 Va. App. 1066, 1067
(1991). As the Supreme Court has emphasized, we review the trial court’s “findings of historical
fact for clear error.” Harris v. Commonwealth, 266 Va. 28, 32 (2003) (citing Ornelas v. United
States, 517 U.S. 690, 699 (1996)). The application of the law to the facts is reviewed de novo.
Jones v. Commonwealth, 71 Va. App. 375, 380 (2019).
A. Warrantless Entry
The Fourth Amendment protects “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.
-5- The crux of Fourth Amendment analysis is whether law enforcement officers acted reasonably,
as “only unreasonable searches and seizures” are prohibited. King v. Commonwealth, 49
Va. App. 717, 723 (2007). “Courts must consider the scope of the particular intrusion, the
manner in which it is conducted, the justification for initiating it, and the place in which it is
conducted.” Saal v. Commonwealth, 72 Va. App. 413, 426 (2020) (quoting Bell v. Wolfish, 441
U.S. 520, 559 (1979)). A warrantless entry into a home is “presumptively unreasonable” unless
exigent circumstances are present. Sharpe v. Commonwealth, 44 Va. App. 448, 455 (2004)
(quoting Payton v. New York, 445 U.S. 573, 586 (1980)). Furthermore, “[n]o less than a tenant
of a house, or the occupant of a room in a boarding house, McDonald v. United States, 335 U.S.
451[ (1948)], a guest in a hotel room is entitled to constitutional protection against unreasonable
searches and seizures.” Stoner v. California, 376 U.S. 483, 490 (1964). Thus, a registered
occupant of a motel room, or guest of an occupant, has a reasonable expectation of privacy
“equivalent to [that] of the rightful occupant of a house.” McCary v. Commonwealth, 36
Va. App. 27, 36 (2001) (quoting Servis v. Commonwealth, 6 Va. App. 507, 514 (1988)).
One recognized exigency is the emergency aid exception, which “recognizes the ‘right of
the police to enter and investigate’ when someone’s health or physical safety is genuinely
threatened.” Merid, 72 Va. App. at 113 (quoting Kyer v. Commonwealth, 45 Va. App. 473, 480
(2005)). A warrantless entry is allowed under this exception “if the officers have ‘“an
objectively reasonable basis for believing” . . . that “a person within [the house] is in need of
immediate aid.”’”3 Id. (alterations in original) (quoting Michigan v. Fisher, 558 U.S. 45, 47
(2009) (per curiam)). See Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (holding that “law
3 The emergency aid exception also requires that once police officers enter a residence, the scope of any search they conduct must be “strictly circumscribed by the exigencies which justify its initiation.” McCarthy, 73 Va. App. at 643 (quoting Mincey v. Arizona, 437 U.S. 385, 392 (1978)). Mihokovich did not challenge the scope of the initial search of the motel room, and the trial court did not address the issue in its ruling. -6- enforcement officers may enter a home without a warrant to render emergency assistance to an
injured occupant or to protect an occupant from imminent injury”).
As the Virginia Supreme Court has stated, “A determination of whether exigent
circumstances justify a warrantless entry is not based on an analysis of the circumstances
considered in hindsight, but is focused on review of the ‘circumstances as they reasonably
appeared to trained law enforcement officers to exist when the decision to enter was made.’”
Robinson v. Commonwealth, 273 Va. 26, 41 (2007) (emphasis added) (quoting Verez v.
Commonwealth, 230 Va. 405, 411 (1985)). Consequently, the trial court can only consider
information known to the deputies before they entered Mihokovich’s room without a search
warrant—and cannot consider information that the deputies discovered after they entered the
motel room without a search warrant. See id. Therefore, the fact that EMS had to administer
Narcan to Mihokovich in order to revive him is not something that we can consider under
binding case law from the Supreme Court because the deputies did not have this information
until after they entered Mihokovich’s motel room without a search warrant. It has been
frequently stated that a person’s home is his castle, and this maxim under the Fourth Amendment
protects citizens from having police officers enter their home (or hotel room) without a search
warrant unless there is sufficient cause to believe that exigent circumstances exist (e.g., a
medical emergency) before the police enter without a search warrant.
However, “[o]fficers do not need ironclad proof of ‘a likely serious, life-threatening’
injury to invoke the emergency aid exception[,]” as long as they can identify objectively
reasonable factors for believing assistance was needed. Fisher, 558 U.S. at 49. The
Commonwealth argues that Deputy Lewis had an objectively reasonable basis for thinking
Mihokovich was overdosing and needed immediate medical aid after Deputy Lewis saw Lake, an
“impaired, intoxicated” individual, exit a motel room in which Mihokovich and a woman were
-7- seen lying in a bed. Deputy Lewis mistakenly believed that Lake said that both Lake and
Mihokovich had used fentanyl in a van before Lake carried Mihokovich into the motel room, and
Lake told Deputy Lewis that he did not know whether Mihokovich was awake when he left the
However, we cannot consider only the circumstances relied on by the Commonwealth.
Rather, we consider the totality of all the circumstances, and we view the evidence in the light
most favorable to Mihokovich—as we must because he is the party who prevailed in the trial
court. See Sidney, 280 Va. at 520; see also Grimstead, 12 Va. App. at 1067. Additional
pertinent facts are that Lake told Deputy Lewis that Mihokovich used drugs for pain because his
right foot was badly infected, but Lake said that he had not seen Mihokovich use any drugs that
day. Lake said he put Mihokovich to bed after he carried him to the room, but he did not say he
carried him because he was passed out. A reasonable inference is that Lake assisted Mihokovich
because his infected foot made walking difficult. Lake did not describe Mihokovich as
“unconscious.” When Deputy Lewis asked if Mihokovich was “yacked out,” Lake adamantly
said that he was not.
Furthermore, based on Deputy Lewis’s training and experience, he knew that a person
suffering an overdose turned “blue or gray,” but Mihokovich, who deputies could view through
the window, did not appear to be “blue or gray”—nor did he appear to have difficulty breathing.
Cf. McCarthy, 73 Va. App. at 635 (police officer investigating an anonymous call found a man
lying on the floor of a motel room, “unconscious, pale, cool, sweating ‘profusely,’ and engaged
in . . . ‘agonal breathing’”). Deputy Marsten described Mihokovich and Huddle as “sleeping”
with their heads on the pillows and their bodies largely under the covers. The Commonwealth
contends that Marsten’s description was subjective and thus not applicable to the analysis in this
case. However, the observation that Mihokovich appeared to be “sleeping” was certainly a
-8- factor to be considered in determining whether an objective, reasonable officer would have
thought Mihokovich was overdosing and needed emergency aid or was simply sleeping in a bed
in a motel room.
The deputies encountered Lake while on a routine foot patrol. They were not at the motel
in response to a dispatch concerning a possible overdosed person. Cf. McCarthy, 73 Va. App. at
635 (police responded to anonymous call about man lying on motel room floor); Merid, 72
Va. App. at 109 (police responded to defendant’s apartment after a call from a “concerned”
relative). When they looked in the motel room through the window, they saw two people lying
in a bed. They did not see any drugs or drug paraphernalia on the bed or in the room. The
deputies showed little interest in the occupants of the room until they found fentanyl on Lake,
and they continued to question Lake for approximately ten minutes before deciding to enter the
room because they “might have somebody yacked out in there.” Deputy Lewis testified that
timing was critical in reviving an overdose victim, but the deputies made no attempt to rouse the
occupants of the room by shouting to them, “Are you all right?” They did not try to get a
response by tapping on the window or knocking on the door. Instead, having already talked with
Lake for about ten minutes, they stood passively by chatting with a handcuffed Lake about his
construction jobs and the fact that he also installed drywall, and helping him enjoy a cigarette
during the two minutes it took Deputy Parker to get the room key. Deputy Marsten continued to
observe that the occupants of the room were sleeping. Although one of the deputies had Narcan
in his car, Deputy Lewis testified that they did not retrieve it from the police vehicle because
EMS was going to arrive shortly with Narcan. Deputy Lewis did not even call EMS until after
the deputies had entered the room and had secured it. Considering the totality of the
circumstances, the deputies’ conduct seemingly contradicts the Commonwealth’s claim that this
situation appeared to be a medical emergency that called for a warrantless entry to render
-9- immediate aid. See White v. Commonwealth, 73 Va. App. 535, 556-57 (2021) (“To the extent it
appears that there is no imminent change to the circumstances about to occur and that the status
quo largely can be maintained while the officers seek a warrant, the situation is not ‘urgent’ for
the purposes of an exigency analysis.”).
In granting the motion to suppress, the trial court stated that “there is no bright line test of
what an officer must do before they enter under the emergency aid[] exception” and that each
situation is “fact specific.” Under the facts here, the trial court determined that the warrantless
entry was not objectively reasonable because the deputies did not try to rouse Mihokovich or
Huddle, who appeared to be sleeping in the bed, by shouting to them, by tapping on the window
of the room, or by knocking on the door, which they easily could have done while waiting for a
key to open the room. If they had done so and gotten no response, the fact that the room’s
occupants failed to respond to the deputies’ attempts to rouse them would have been another
factor in determining that an emergency existed.
Although the Commonwealth argues that the trial court’s ruling will require that police
officers always knock before entering a person’s home in an emergency aid situation, we
certainly do not interpret the ruling that broadly. Indeed, contrary to what the Commonwealth
argues, the trial court did not create “a knock and wait requirement” for the emergency aid
exception. Instead, the trial court said that “there is no bright line test of what an officer must do
before they enter under the emergency aid[] exception.” The trial court said that “[t]he Fourth
Amendment is a fundamental protection of our Constitution and must be strictly adhered to even
when analyzing the facts of very specific cases of whether or not exigent circumstances apply.”
The trial court said that in this case, “[i]n order to form their objectively reasonable basis for
believing that [Mihokovich] was in need of immediate aid[], a simple knock could have dispelled
- 10 - any question as to whether that individual needed emergency aid[],” which would have “justified
the exigent circumstance.”
The trial court recognized that “overdoses are an extreme problem in this community.
Police are tasked with a very difficult job to make split second decisions that may or may not
save someone’s life.” The trial court stated that “there are circumstances obviously where [the]
emergency aid[] exception applies,” but “they are very fact specific.” Contrary to what the
Commonwealth claimed, the trial court certainly did not find that knocking is required in every
case before entering into a residence or motel room under the emergency aid exception. Rather,
the trial court considered as an important factor specific to this case the fact that the deputies
made absolutely no effort to attempt to rouse the room’s occupants when they had the time and
opportunity to do so before entering the room without a search warrant.
Officers often knock, as a matter of pure courtesy, before entering a residence. However,
there is no legal requirement that they do so before entering under the emergency aid exception.
The exception requires only that police officers have an objectively reasonable belief under the
specific facts of the situation that an individual is in need of immediate emergency assistance.
Under the facts of this case, however, the trial court found that the exception did not
apply. The court noted that the deputies could see Mihokovich and Huddle lying in bed, that one
of the deputies stated that they were sleeping, and that there were no drugs or drug paraphernalia
in sight inside of the room. There was no indication that either of them was experiencing any
physical distress such as a blue or gray skin tone or labored breathing. Emphasizing the specific
facts of this case, the trial court found it was unreasonable for the deputies to stand outside the
room for a while—plus for two minutes more while a key to the room was obtained—without
making any attempt to see if they could get a response from the two occupants, whom they could
see only a few feet away from them through the window to the motel room. Simply shouting to
- 11 - them through the window or door, tapping on the window, or knocking on the door readily could
have dispelled any question as to whether Mihokovich needed emergency aid. Based on the
specific facts of this case, we conclude that the trial court did not err in determining that entering
the motel room without a search warrant was not objectively reasonable.
B. Suppression of the Evidence
A review of a trial court’s grant of a motion to suppress presents a two-step analysis:
(1) whether a Fourth Amendment violation occurred and (2) whether the application of the
exclusionary rule was the appropriate remedy. See Jones, 71 Va. App. at 383. We do not reach
the question of the application of the exclusionary rule because the Commonwealth’s assignment
of error on appeal to this Court does not encompass it.4 See Rule 5A:20(c)(1) (stating that
“[o]nly assignments of error listed in the [opening] brief will be noticed by this Court”); see also
Rule 5A:12(c)(1) (pertaining to assignments of error in petitions for appeal). The
Commonwealth’s assignment of error states only that the trial court erred in “finding that the
officers acted unreasonably when they did not knock before entering and that entry into the hotel
room was not objectively reasonable under the emergency aid exception.” However, the
Commonwealth did not also raise as error that, even if a Fourth Amendment violation occurred,
the trial court erred by applying the exclusionary rule as the United States Supreme Court does
4 The issue is also barred by Rule 5A:18. As Mihokovich asserted at oral argument before this Court, the Commonwealth did not argue in the trial court that even if a Fourth Amendment violation occurred, the trial court still erred in applying the exclusionary rule. An argument on one point does not also preserve an argument on a related point. See Bethea v. Commonwealth, 297 Va. 730, 743-44 (2019) (an objection to a court’s ruling must be specific and timely). Thus, we find that Rule 5A:18 bars our further consideration of this issue. See Creamer v. Commonwealth, 64 Va. App. 185, 195 (2015) (stating that the purpose of Rule 5A:18 is “to allow the trial court a fair opportunity to resolve the issue at trial, thereby preventing unnecessary appeals and retrials”). At oral argument, the Commonwealth contended that, even if the issue had not been preserved, we could consider the issue under Rule 5A:18’s ends-of-justice exception. Given what a narrow exception the ends-of-justice exception is and given the facts of this particular case, we do not agree that the ends-of-justice exception applies here. - 12 - not require that the exclusionary rule be implemented every time there is a Fourth Amendment
violation.
III. CONCLUSION
In short, police officers on a routine foot patrol that took them through the premises of a
motel indicated that they were concerned about whether Mihokovich, who appeared through the
window of the motel room to be asleep in bed with a woman, may have overdosed on fentanyl
and might need emergency medical aid. They observed his friend Jesse Lake leave
Mihokovich’s motel room apparently under the influence. Lake admitted to the deputies that he
himself had recently taken fentanyl, and after the deputies’ pat down of Lake, they found
syringes and fentanyl in his pocket. Lake also told the deputies that he had helped carry
Mihokovich to the motel room and put him in the bed there although he adamantly denied that
Mihokovich had taken fentanyl himself or was overdosing. The deputies talked with Lake for
approximately ten minutes before deciding to get a key to Mihokovich’s room and enter that
motel room without a search warrant. During this entire period, including the additional two
minutes that it took for one of the deputies to go and retrieve a room key, the deputies did not tap
on the window or shout through the window to Mihokovich or the woman, yell to ask the
occupants about whether they needed medical help, or knock on the wall or door to see if they
could rouse Mihokovich or the woman to determine if they were all right. When the key finally
arrived, without trying first to get any response, they simply swiped the key, opened the door,
and entered the room. Once in the room, they waited a considerable time before trying to rouse
Mihokovich themselves and first relied on the woman in bed with him to see if he was breathing.
Only after doing these things did they call EMS to come. They further did not retrieve the
Narcan that one of the deputies had in his police vehicle because a deputy stated that EMS would
bring Narcan with them. Viewing the totality of the evidence in the light most favorable to
- 13 - Mihokovich, as we must because he prevailed below in the circuit court, the trial judge did not
err in finding a violation of the Fourth Amendment under the specific facts of this particular case
because binding Supreme Court case law makes clear that the court can only consider what
information the officers knew before they entered the hotel room—not what they learned after
they entered it without a search warrant.
Contrary to the Commonwealth’s argument on appeal, the trial judge here did not create
any “knock and wait requirement” for the emergency aid exception to apply. The trial court
simply found here that an objectively reasonable police officer would have tried to do something
to rouse the two people he could see through the window seemingly sleeping in the bed. The
officers could have tried to do so by knocking on the door or wall to the motel room, tapping or
rapping on the window through which they could see them, or yelling to them to question
whether they were all right. If the officers had then received no response during this time that
they stood mere feet away outside Mihokovich’s motel room, there almost certainly would have
been an objective basis to enter the motel room without a search warrant under the emergency
aid exception. However, under these particular circumstances and remembering the adage that a
person’s home is his castle (as well as the Supreme Court case law that equates a person’s Fourth
Amendment protection in a motel room to that in a home), the circuit court did not err in finding
that the entry of the motel room without a search warrant was not objectively reasonable.
For all of these reasons, the record before us on appeal supports the conclusion that the
trial court did not err in finding that the emergency aid exception did not apply in this case—and
that the Circuit Court of Frederick County did not err in granting Mihokovich’s motion to
suppress. We expressly do not hold, however, that police officers must knock before entering
whenever the emergency aid exception applies.
Affirmed.
- 14 -