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COURT OF APPEALS OF VIRGINIA Present: Judges Moon, * Willis and Elder Argued at Richmond, Virginia JOSEPH ALDEN LEWIS v. Record No. 1852-96-2

COMMONWEALTH OF VIRGINIA

OPINION BY JUDGE JERE M. H. WILLIS, JR. DECEMBER 2, 1997

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. 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.
*

Finding no error, we affirm the judgment

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 An officer had

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

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." 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, The

Miers and Riley had the words "police" or "State Police" emblazoned on their outer garments. All three had long hair, and They wore their

both Miers and Riley were large men with beards.

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. door. All of the officers were visible from the front

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. Lewis stood up and asked, "How

Search warrant.

Open the door."

do I know it's the police."

The officers repeated their Five, ten,

identity, purpose and command "[n]umerous times. 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 Secure the dog." Lewis told the officers that

"Control the dog.

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. the door again, and Lewis backed up. a third time, it opened. Riley rammed

When Riley rammed the door

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. 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,

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