COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Fitzpatrick
Argued at Alexandria, Virginia
COMMONWEALTH OF VIRGINIA
v. Record No. 2337-94-4 OPINION BY
JUDGE JOHANNA L. FITZPATRICK
TYRONE EDGAR WATERS MAY 2, 1995
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
Kathleen B. Martin, Assistant Attorney General (James S.
Gilmore, III, Attorney General, on brief), for appellant.
Lorie E. O'Donnell, Assistant Public Defender, for appellee.
Tyrone Edgar Waters (appellee) was indicted for possession
of cocaine in violation of Code § 18.2-250 and possession of a
firearm while in possession of cocaine in violation of Code
§ 18.2-308.4. Appellee filed a motion to suppress the gun, the
cocaine, and his statements because the police officer seized him
without reasonable suspicion of criminal activity. The trial
court granted the suppression motion, and the Commonwealth
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appeals that ruling pursuant to Code § 19.2-398(2). On appeal,
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Code § 19.2-398 provides, in pertinent part, that:
A petition for appeal from a circuit court
may be taken by the Commonwealth only in felony
cases . . . from:
* * * * * * *
2. An order of a circuit court prohibiting
the use of certain evidence at trial on the
grounds such evidence was obtained in violation of
the provisions of the Fourth, Fifth or Sixth
Amendments to the Constitution of the United
States or Article I, Sections 8, 10 or 11 of the
Constitution of Virginia.
the Commonwealth argues that: (1) the stop of appellee did not
constitute a fourth amendment seizure, and (2) even if appellee
was seized, the stop was valid as a community caretaker function
under Barrett v. Commonwealth, 18 Va. App. 773, 447 S.E.2d 243
(1994) (en banc). We hold that the initial stop was a reasonable
exercise of the officer's community caretaker function and that
the drugs and gun were appropriately seized.
BACKGROUND
On March 8, 1994 at 10:15 p.m., Detective Ricky Frye (Frye)
of the Leesburg Police Department was patrolling an apartment
complex. He saw appellee swaying and walking unsteadily.
Appellee appeared to be intoxicated or ill. Frye was concerned
for appellee's safety, followed him, and tapped him on the
shoulder. Frye told appellee that he was concerned for
appellee's safety and that he wanted to make sure appellee could
find his way home.
During the initial encounter, Frye smelled a strong odor of
alcohol on appellee, who then made threatening gestures and
statements to Frye. Frye saw a bulge on appellee's left side
and, because appellee was acting violently, asked if he could
search him for safety reasons. Appellee immediately pulled his
pants pockets inside out and consented to the search. Frye's
pat-down revealed a BB gun and a corncob pipe with an odor of
marijuana. Frye arrested appellee and read him his Miranda
rights. Appellee admitted using the pipe to smoke marijuana.
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The police tested the corncob pipe and found cocaine residue.
In a pretrial motion, appellee moved to suppress the gun,
the pipe, and his statements to Frye as being the products of an
unlawful stop. In a November 2, 1994 letter opinion, the trial
court granted appellee's suppression motion and found that: (1)
the community caretaker exception of Barrett was limited to
automobile stops, and (2) appellee was improperly seized within
the meaning of the fourth amendment because a reasonable person
would not have felt free to leave when approached by the officer.
COMMUNITY CARETAKER EXCEPTION
The Commonwealth argues that Frye's stop of appellee was
justified because he was "in the routine execution of community
caretaking functions, totally divorced from the detection or
investigation of crime." Barrett, 18 Va. App. at 776, 447 S.E.2d
at 245. Frye was an officer performing the legitimate role of
the police to aid those who reasonably appear to be in distress
or need assistance. Appellee argues that the community caretaker
exception of Barrett is limited solely to automobile stops, and
that, even if it is applicable in other contexts, this stop was
unreasonable. Assuming without deciding that appellee was seized
by Frye, we agree with the Commonwealth that, under these facts,
Frye's initial contact with appellee was valid as a reasonable
community caretaker action.
The United States Supreme Court first adopted the community
caretaker doctrine in Cady v. Dombrowski, 413 U.S. 433 (1973).
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The Supreme Court held as follows:
Local police officers, unlike federal
officers, frequently investigate vehicle
accidents in which there is no claim of
criminal liability and engage in what, for
want of a better term, may be described as
community caretaking functions, totally
divorced from the detection, investigation,
or acquisition of evidence relating to the
violation of a criminal statute.
Id. at 441. In Barrett, this Court relied on Cady and
held that "officers may conduct investigative
seizures in the routine execution of
community caretaking functions, totally
divorced from the detection or investigation
of crime, so long as those seizures are
reasonable." 18 Va. App. at 776, 447 S.E.2d
at 245. [T]he duty of the police embraces
the function of maintaining public order and
providing necessary assistance to persons in
need or distress. An officer who harbors a
reasonable and articulable suspicion, based
upon observed facts or a credible report,
that a citizen is in distress or in need of
assistance, may lawfully effect an
appropriately brief and limited seizure for
the purpose of investigating that suspicion
and rendering aid.
Id. at 778, 447 S.E.2d at 246.
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While many cases interpreting the community caretaker
function involve application of the exception to police contact
with motor vehicles, no language in Barrett or Cady restricts an
officer's community caretaking actions to incidents involving
automobiles. See id. at 776-78, 447 S.E.2d at 245-46; Cady, 413
U.S. at 439-47. As noted in Barrett, "[o]ther jurisdictions have
acknowledged that the duty of the police extends beyond the
detection and prevention of crime, to embrace also an obligation
to maintain order and to render needed assistance," 18 Va. App.
at 777, 447 S.E.2d at 245, and have addressed the community
caretaker doctrine in contexts other than automobile stops. See
State v. Dube, Nos. 7156, YOR-94-547, 1995 WL 87533 (Me. Mar. 1,
1995); State v. Menz, 880 P.2d 48 (Wash. Ct. App. 1994), review
denied, 890 P.2d 463 (Wash. 1995).
In Dube, a custodian requested the police to accompany him
into the defendant's apartment to verify that the custodian only
fixed a leak. 1995 WL 87533, at *1. There was no prior
indication of any criminal conduct, but once in the apartment,
the officers saw evidence of child abuse and neglect in plain
view. Id. The Supreme Judicial Court of Maine held that the
officers were lawfully in the apartment as part of their
community caretaking functions "totally divorced from the
detection, investigation, or acquisition of evidence relating to
the violation of a criminal statute." Id. at *2. The court
noted that "a police officer has a 'legitimate role as a public
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servant to assist those in distress and to maintain and foster
public safety.'" Id. (quoting State v. Pinkham, 565 A.2d 318,
319 (Me. 1989)). It would be illogical to allow the police to
render assistance to a convulsing man in a car while denying this
same assistance to a man on the street.
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.
No seizure, however limited, is a valid exercise of the
community caretaking function if credible evidence indicates that
the stop is a pretext for investigating criminal activity. A
separate opinion in Barrett, concurring with the adoption of the
doctrine but finding the facts there insufficient to warrant its
application, warned that "[t]he 'community caretaking' exception
should be cautiously and narrowly applied in order to minimize
the risk that it will be abused or used as a pretext for
conducting an investigatory search for criminal evidence." 18
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Va. App. at 780, 447 S.E.2d at 247 (Coleman, J., dissenting).
The trial judge in this case specifically did "not question the
motives of Detective Frye." In State v. Fry, 831 P.2d 942 (Idaho
Ct. App. 1991), the Court of Appeals of Idaho determined that the
police officers were not exercising their community caretaker
function when they seized a truck parked in a parking lot. Id.
at 946. The court noted that: (1) neither officer "entertained
any belief that Fry needed police assistance, nor did they
perceive a medical emergency or other exigency compelling their
immediate action," and (2) the officers' "purpose in encountering
Fry was related to their subjective suspicions of Fry's presence
and his possible connection with . . . recent burglaries." Id.
We agree that credible evidence of pretext or subterfuge will
invalidate a stop made under the guise of the community
caretaking exception.
We hold that an officer's community caretaker functions are
not limited solely to automobile stops and that, under the facts
present in this case, Frye's actions were a reasonable exercise
of that duty. If a police-citizen encounter is based upon an
objectively reasonable belief that aid or assistance is warranted
and contraband or other evidence of crime is discovered incident
to the lawful performance of an officer's duties, the officer
need not ignore that which is discovered. Frye observed appellee
staggering late at night, and based on this observation, Frye had
a reasonable suspicion that appellee was intoxicated, ill, or in
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need of help. Frye's initial contact with appellee was brief and
limited to voicing his concern and making a determination whether
appellee was in distress. While attempting to determine if
appellee was ill, Frye smelled alcohol, and appellee made
threatening gestures and statements. The nature of the encounter
then changed, and Frye, seeing a bulge on appellee's left side,
reasonably believed that a pat-down search for weapons was
necessary for his safety. See Terry v. Ohio, 392 U.S. 1, 30
(1968).
For the foregoing reasons, we reverse the trial court and
remand for trial.
Reversed.
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