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Pearson v. Commonwealth — Court of Appeals opinion, 2002-22-1

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- 12 - arrestee in Santana. He certainly did not consent to the officers’ entry into his room to arrest him. Id. at 229. Although the facts in McCraw and the facts here are not perfectly harmonious, here the facts are much more similar to those in McCraw than those in Santana. Unlike Santana, and like the defendant in McCraw, Berry was not visible to public observation when the police arrived. Santana, 427 U.S. at 42. Instead, he was inside his apartment and only opened the door of his apartment in response to law enforcement knocking at his apartment door. Although Berry opened his apartment door and stood in his doorway speaking with police momentarily, he expressly refused to come outside when asked to do so. Instead, he twice, unequivocally stated his desire to remain in his home, and even after being advised by the police that they would only help him if he came outside, he attempted to close the front door of his apartment. He began to withdraw from public view and “retreat into his own home” to “be free from unreasonable governmental intrusion.” Kyer, 45 Va. App. at 480 (quoting Kyllo, 533 U.S. at 31). It was only at this point that Detective Alexander put her boot in the doorway to prevent his apartment door from closing. In addition, both Pearson and Officer Pitterson at nearly the same time rushed past Detective Alexander, forced the apartment door open, and attempted to seize Berry. Thus, unlike in Santana, the attempted arrest did not begin until after Berry had reentered the private, constitutionally protected sphere of his home. The evidence is clear that only after he had stepped back from the threshold and begun closing the door did the police escalate the situation and attempt to seize him. Thus, unlike in Santana where the police began the attempt to lawfully arrest Santana in public and followed the fleeing defendant into her home, 427 U.S. at 42-43, the police initiated the attempted arrest of Berry when he was in a constitutionally protected place and not in a public place justifying warrantless police entry. Just as in McCraw, this entry and arrest was unlawful.
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