VA: Possible evanescent DNA on the defendant’s person was justification for a warrantless entry after a rape

Danger to the community from an alleged rapist on the loose, with slight PC, was enough to justify a warrantless entry into defendant’s house to arrest him for the home invasion rape of a 94 year old woman. The police were also trying to get the potentially destructible DNA evidence that the defendant might have on his person. West v. Commonwealth, 54 Va. App. 345, 678 S.E.2d 836 (2009):

Based on an examination of the entire record before us, we find that sufficient exigent circumstances existed in this case that justify the police’s entry into appellant’s home without a warrant. Here, the officers were investigating serious crimes, involving violent sexual assault and home invasion. See Welsh, 466 U.S. at 751-52 (explaining that the seriousness of the alleged offense is an important factor). In addition, although the crimes here did not involve a firearm, the perpetrator had violently attacked a 94-year-old woman as she lay in her bed after he had used something sharp to cut the screen out of the window and enter her home. Therefore, the danger to the community from this perpetrator continued if the police did not enter his house and quickly act to restrain the suspect. Also, because appellant lived behind Mrs. M’s house, he could easily observe that the police were actively investigating the crime, which could have prompted him to destroy evidence or to flee.

Finally, maiming and the sexual assault crimes that the police were investigating potentially involved DNA evidence. Detective Snyder knew, based on his investigation that morning, that both the victim and the perpetrator had been cut or bitten during the attack and attempted rape. Detective Snyder had seen blood on the victim, indicating that blood would most likely also be found on her assailant, given the facts in this case. In addition, DNA from the victim’s saliva was also likely to be found on her assailant where she had bitten him during the attack. Similarly, the police could also expect to recover other DNA evidence from the clothing of the perpetrator, given the perpetrator maimed the victim and committed object sexual penetration of her. This type of physical evidence is easily destroyed, by simply washing a pair of pants or taking a shower. Therefore, it was critical for the officers to gain control of the situation and arrest appellant once they had probable cause to believe he committed the crimes. Otherwise, appellant could easily destroy the biological evidence of his guilt while the police proceeded to get a search or arrest warrant. See United States v. Reed, 935 F.2d 641, 643 (4th Cir. 1991) (“Exigent circumstances can arise when evidence might be destroyed before a search warrant could be obtained and police need not produce concrete proof that the evidence was on the verge of destruction.”); State v. Hardin, 359 N.W.2d 185, 189 (Iowa 1984) (“From the bloody and disheveled condition of the victim, the police reasonably expected to find … the victim’s hair in defendant’s beard, her blood on his body, and meaningful scrapings underneath his fingernails. Defendant could have extinguished much of that incriminating evidence merely by showering, an additional factor supporting the warrantless immediate arrest.”); State v. Welker, 37 Wn. App. 628, 683 P.2d 1110, 1114 (Wash. Ct. App. 1984) (noting that experienced officers know that “important ‘trace evidence,’ such as hair, fibers, bodily secretions, scratches and bite marks, is usually present in rape cases and that it is transient or short lived. If the attacker could elude capture long enough, this trace evidence could be washed or combed away and, in this case, the freshness of the incriminating scratches would be lost.”); cf. Schmerber v. California, 384 U.S. 757, 770-71, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) (finding “the attempt to secure evidence of blood-alcohol content” without a warrant was reasonable incident to Schmerber’s arrest, given the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence'”); contrast State v. Vice, 259 S.C. 30, 190 S.E.2d 510, 512 (S.C. 1972) (holding that, as the evidence proved Vice was not in his rented room, “[t]here was simply no circumstance upon which to base a conclusion that the exigencies of the situation required dispensing with the necessity of a warrant to search appellant’s room”).

(I don’t see that the evanescence of this evidence appears anywhere except in the post-hoc rationale of the police. Can’t this rationale be used in any rape case if the call to the police is immediate and the suspect is marginally identified?)

Defendant’s parole officer was looking for defendant and had a warrant for taking him. He found defendant at home and knocked and entered. The defendant’s parole consent permitted the entry. Local LEOs were there, but as backup, and the PO was the first in. Hatcher v. State, 2009 Ark. App. 481, 324 S.W.3d 366.*