COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
THOMAS L. TERRY
OPINION BY
v. Record No. 1087-95-2 JUDGE MARVIN F. COLE
AUGUST 27, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Lee A. Harris, Jr., Judge
J. Kelly Haley for appellant.
John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
The appellant, Thomas L. Terry, was convicted for possession
of marijuana in violation of Code § 18.2-250.1. On appeal, he
contends that the trial court erred in denying his motion to
suppress the marijuana. We disagree and affirm.
The evidence is not in dispute. On May 1, 1994, at
approximately 7:32 p.m., Officer Austin J. Whitaker was
dispatched to Three Lakes Park in response to a medical emergency
call. When he arrived at the park, Whitaker was directed by park
patrons to an area near one of the lakes where he found appellant
in a semiconscious state. Terry was blue in the face and around
the lips. He was gasping for air and unable to talk. Nobody
claimed to be his friend. Whitaker received no information
concerning any actual or suspected criminal activity in the area.
There was a tackle box and fishing pole by Terry's side, which
led the officer to believe that Terry had been fishing in the
lake.
Upon arriving at the scene, Whitaker immediately checked
Terry's respiration. He determined that Terry was struggling for
breath but was breathing. An Emergency Medical Services (EMS)
team had been notified and, once they arrived and commenced
working on Terry, Whitaker searched Terry's fanny pack to
establish an identification, to locate medical information and to
determine the cause of Terry's condition. In the pack, Whitaker
found a wallet and searched the wallet for a driver's license or
some other form of identification. While looking through the
wallet, Whitaker came upon some cigarette rolling papers. He
then found Terry's driver's license. In the fanny pack, he also
discovered a flip-top box of Camel cigarettes and an inhaler.
After finding the cigarette rolling papers, Officer
Whitaker, cognizant of the fact that rolling papers are sometimes
used to smoke marijuana, concluded that marijuana may have caused
appellant's attack. Therefore, he continued looking through the
fanny pack, lifted the lid from the box of Camel cigarettes and
discovered what appeared to be a marijuana joint among the
cigarettes in the box. He relayed this information to the EMS
team as a possible cause for Terry's condition.
Terry was subsequently transported to a hospital for medical
attention. Whitaker seized the marijuana joint and submitted it
to the Consolidated Laboratory, where analysis confirmed that it
contained marijuana. Whitaker never spoke with Terry at the
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scene because Terry was unconscious and in distress the entire
time he was in the officer's presence, and was unable to speak.
Terry was later arrested for possession of marijuana.
Terry filed a motion to suppress all evidence seized from
him during this incident, claiming such seizure violated his
Fourth Amendment rights and his statutory rights under Code
§ 19.2-83. The motion alleged that Whitaker's seizure of the
marijuana joint from the cigarette pack was illegal under the
Fourth Amendment "because this incident was a medical emergency,
and the officer could only lawfully perform a search for
identification in a place where one would normally be found, and
certainly it would not be reasonable to look for identification
in a cigarette pack." A hearing was held on the motion to
suppress and Terry made the following argument before the trial
court:
[W]e have a medical emergency here and the
officer quite rightly . . . has a reasonable
belief that something is wrong and if the
person is in danger, he can certainly search
for I.D. or some kind of indication of some
medical problems. The point here is the
scope of that search. And what we have here,
he looks in the fanny pack, he finds a
wallet, finds identification of who this is
and looks through this for any other medical
problems, and then he finds a rolling paper.
And then he continues the search and this
time he's looking into a Marlboro [sic]
cigarette pack, where he's not going to find
any kind of identification or - he certainly
wouldn't find it in there.
* * * * * * *
[H]e's blue in the face and that's not
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necessarily attached with smoking marijuana.
He's looking in there most probably for some
kind of evidence and I think this is beyond
the scope of emergency . . . . [T]he only way
he can get in that box is if he had probable
cause to arrest for misdemeanor in his
presence . . . .
The trial judge overruled the motion to suppress, commenting
that "as in all searches, it's a matter of reasonableness." He
concluded that the actions of the officer were reasonable under
the circumstances.
On appeal "the burden is on the [appellant] to show that the
trial court's denial of his suppression motion constituted
reversible error." DePriest v. Commonwealth, 4 Va. App. 577,
583, 359 S.E.2d 540, 544 (1987), cert. denied, 488 U.S. 985
(1988). The trial court's suppression ruling will not be
disturbed unless plainly wrong or without evidence to support it.
Greene v. Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138,
139 (1994).
Some of the basic principles of a medical information search
were stated in Vauss v. United States, 370 F.2d 250, 251-52 (D.C.
Cir. 1966) as follows:
Admissible evidence may be acquired before or
after an arrest or without an arrest. If
discovered by search, its admissibility turns
on whether the search was lawful, i.e.,
reasonable in the circumstances. That so
reasonable a search as occurred here happens
to yield evidence of a crime as a by-product
even though not so intended is irrelevant. A
search of one found in an unconscious
condition is both legally permissible and
highly necessary. There is a positive need
to see if the person is carrying some
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indication of a medical history, the rapid
discovery of which may save his life; there
is also a need to identify persons so found
in order to notify relatives or friends.
That the cause of appellant's being
unconscious was not known in no way impaired
but rather enhanced the need and inherent
power to search appellant.
In Commonwealth v. Waters, 20 Va. App. 285, 290, 456 S.E.2d
527, 530 (1995), we stated the following:
The appropriateness of applying the community
caretaker doctrine to a given factual
scenario is determined by whether: (1) the
officer's initial contact or investigation is
reasonable; (2) the intrusion is limited; and
(3) the officer is not investigating criminal
conduct under the pretext of exercising his
community caretaker function. Police
officers have an obligation to aid citizens
who are ill or in distress, as well as a duty
to protect citizens from criminal activity.
The two functions are unrelated but not
exclusive of one another. Objective
reasonableness remains the linchpin of
determining the validity of action taken
under the community caretaker doctrine.
Terry admits that Whitaker had reasonable grounds to believe
a medical emergency existed. Whitaker saw Terry semiconscious,
gasping for breath, blue in the face, and unable to speak. Terry
concedes that the officer was justified in searching him and his
belongings for identification, for medical alert information, or
for what may have caused his condition. The crux of Terry's
argument is that Whitaker was not entitled to enter the pack of
Camel cigarettes because at that time his investigation had
changed from aiding a citizen who was ill and in distress to a
criminal investigation, one of searching for evidence of the
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crime of possession of marijuana. Terry's position, however, is
contrary to the evidence in the case.
The record shows that Whitaker had no information and no
reason to suspect any criminal activity. His conduct at all
times was consistent with rendering aid and assistance to Terry
because of his medical condition. Whitaker first assessed
Terry's condition; then he sought an identification and other
pertinent medical information. Whitaker found the rolling
papers, which he associated with marijuana use. He continued the
search in order to determine the cause of Terry's medical
condition and to aid in his treatment. The information
concerning the marijuana was relayed to the EMS team. We hold
that use of the marijuana evidence, discovered as described, was
lawfully obtained and not obtained in violation of the Fourth
Amendment.
For the reasons stated, we affirm the judgment of the trial
court.
Affirmed.
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