Commonwealth v. Jackson

44 Va. Cir. 203, 1997 Va. Cir. LEXIS 491

• Court: Alexandria County Circuit Court
• Decided: December 15, 1997
• Docket: Case No. CF970476
• Status: Published

Opinion

By Judge Alfred D. Swersky

Defendant’s Motion to Suppress will be granted. The failure of the police to wait a reasonable time after knocking and announcing their presence and purpose violated Defendant’s Fourth Amendment protection against unreasonable searches and seizures.

The execution of the warrant occurred at 11:55 p.m., a late night hour at which time most people are asleep; there was at most a thirteen second delay between the first knock and the forcible entry; no noise inside the premises was heard by the officers in response to their knock and announce; and the Commonwealth presented no evidence as to whether the lights were on and people were up and about. When the door was forced open, the Defendant was found unclothed and appeared to be coming from a bedroom toward the door.

Absent some evidence that delay would have resulted in the destruction of evidence, forcible entry was unreasonable after the passage of such a short time as here.

No bright-line time guidelines are set by the cases, nor should they be. Each case must be decided on its own facts and circumstances. Hargrove v. Commonwealth, 21 Va. App. 320 (1995).

Late at night, with no evidence of movement within the premises, indeed with no evidence that people in the premises were even awake nor evidence that any lights were on, no probability can be inferred that evidence was being destroyed nor secreted. Hence the brief wait between the knock and announce and the forcible entry was unreasonable.