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escape if the suspects are not swiftly apprehended; and (10) the
suspects’ recent entry into the premises after hot pursuit.
Id. at 410-11.
The foregoing is not an exhaustive list of factors, nor are they “a checklist to be applied
mechanically with some raw number of factors resulting in a finding of exigency.” White, 73
Va. App. at 555. Also, these “considerations should not be viewed in binary terms, either ‘yes’ a
factor is present or ‘no’ it is not.” Id. Rather, “each of the considerations, much like the
overarching question of exigency itself, represents a continuum or a sliding scale with some
circumstances warranting more concern than others even if a factor is nominally present in both
instances.” Id. Finally, “the exigency analysis requires a review of ‘the totality of the
circumstances.’” Id. (quoting Missouri v. McNeely, 569 U.S. 141, 149 (2013)).
Pearson contends that Berry created an emergency by making six calls to the Newport News
9-1-1 call center and three calls to Fairfax County police on their non-emergency number
attempting to make false reports about his son’s safety. Berry’s repeated false reports to law
enforcement prompted Pearson and three other officers to return to Berry’s residence, thus limiting
their availability to perform other more pressing duties. In further support of Pearson’s assertion
that exigent circumstances justified both the warrantless entry and subsequent arrest of Berry,
Pearson cites the effect of the repeated calls by Berry consuming the scarce resources of the call
centers. Pearson further speculates that had law enforcement waited to obtain a warrant, “Berry’s
conduct could have limited the fire department being dispatched to a house fire; medics being
dispatched to someone having a heart attack; or the police being dispatched to a crime of violence.”
Though, “[f]alse crime reports compel police to divert scarce resources toward unproductive
ends, thereby reducing the availability of resources to catch real criminals,” Dunne v.
Commonwealth, 66 Va. App. 24, 30 (2016), Berry’s actions here did not create an exigent
circumstance overcoming the robust constitutional protections he enjoyed in his home. In addition, Jump to an indexed page (18 of 18)