COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued by Teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 1523-97-1 JUDGE JOSEPH E. BAKER
NOVEMBER 21, 1997
LARRY S. BAUMGARDNER
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Alan E. Rosenblatt, Judge
H. Elizabeth Shaffer, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellant.
Joseph A. Migliozzi, Assistant Public
Defender, for appellee.
In this appeal by the Commonwealth from the Virginia Beach
Circuit Court (trial court), the sole issue presented is whether
the trial court erred when it granted Larry S. Baumgardner's
(defendant) motion to suppress the evidence discovered by the
Virginia Beach police after their warrantless entry into
defendant's home. For the reasons hereinafter stated, we reverse
the judgment of the trial court.
Defendant was indicted for "cultivat[ing] Marijuana, not for
personal use," in violation of Code § 18.2-248.1 and obstructing
justice in violation of Code § 18.2-460.
The Commonwealth contends that the trial court erroneously
held that the community caretaker doctrine did not permit the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
officers' warrantless entry of defendant's home. In addition, it
contends that, even if the initial entry violated the Fourth
Amendment, the marijuana was discovered by an independent source,
making it admissible despite the illegal entry, and that the
trial court's ruling to the contrary was erroneous.
Background
On the evening of June 11, 1995, Virginia Beach Police
Officer Christopher Mras received a computer dispatch to assist
Heather Burton with a dispute. Mras and Officer Robert Hillers
met Burton at a gas station, where she told them that she wanted
assistance in getting her belongings out of the home in which she
had worked as a live-in nanny. Her employer, defendant, had
fired her that day and had not allowed her to remove her
belongings.
Burton told the officers that she was afraid to go to
defendant's house alone because he had threatened her and was
becoming violent. Burton bore no signs of physical abuse, but
Mras was convinced that Burton's fear of violence was reasonable.
Mras based this belief on an encounter he had had with defendant
six months to a year earlier when defendant had attempted suicide
1
and Mras had been dispatched to his home.
Burton also told Mras that she had "seen some illegal drugs
in the house that day" and told Hillers that, "a few days
1
Defendant attempted to inhale carbon monoxide and then bug
spray and became violent when Mras broke into his house to stop
him.
- 2 -
before," defendant had said that he had marijuana plants on the
back porch.
Police Sergeant J. B. Spry joined the group at the gas
station, and they followed Burton to defendant's two-story home.
When defendant responded to the knock on his door, the officers
explained that they were there only "to keep the peace, make sure
nothing happens, that no argument gets out of hand resulting in
violence or any other type of altercation" while Burton retrieved
her property. Defendant confirmed that Burton had resided in his
house. He was "hostile" and "extremely belligerent" toward them,
which led Officer Hillers to conclude that "if we were not
there[,] there might have been a physical confrontation between
[defendant] and [Burton]." When the officers requested entry,
defendant allowed Burton to enter, but "was very adamant about
[the police] not going into the house." Because Burton was
afraid to go in by herself, the officers entered in order to
protect her. At some point prior to their entry, Officers Mras
and Hillers notified Spry that Burton had reported seeing
narcotics in the house. However, Spry and Hillers testified that
the officers' sole purpose in going into the house was to help
Burton retrieve her belongings safely.
Inside, Officers Mras and Hillers remained on the ground
floor and helped Burton remove her property from the ground floor
bedroom she had occupied. Officer Spry waited near the front
door. When Burton returned from retrieving her daughter's toys
- 3 -
and personal effects from the second floor, she told Officers
Spry and Hillers that she had seen what she thought were
marijuana plants in an upstairs attic closet area. She stated
that she had taken a drug awareness course enabling her to
identify the marijuana. Officer Spry then told defendant that he
had reason to believe there were illegal substances in the house
and asked for permission to search, but defendant refused
consent. Spry then sent Hillers to obtain a search warrant and
informed defendant and his wife that the officers would have to
monitor the couple's movements to prevent the possible
destruction of evidence while awaiting the warrant.
Defendant left the house, went jogging, returned and called
his attorney. He then barricaded himself in the garage without
police opposition. When the officers saw him dig a hole in the
ceiling of the garage and saw his legs dangling from the ceiling,
they believed that he might be attempting to reach the contraband
on the second floor. To prevent the destruction of evidence,
Officers Spry and Mras went upstairs, where they found defendant
on his hands and knees stuffing marijuana plants inside his shirt
and under the insulation in the attic. They secured defendant,
and when the search warrant arrived, they retrieved the marijuana
plants under the insulation and placed defendant under arrest.
In granting defendant's motion to suppress, the trial court
concluded that "[t]he entry of the police and of Miss Burton into
[defendant's] house was not legal." It found that defendant had
- 4 -
denied the officers' request to enter the house and that the
officers' belief that Burton had either common authority over or
"a sufficient relationship to" the premises to validly consent to
their entry was not objectively reasonable. It noted that
exigent circumstances did not permit the initial entry of the
premises because Burton could have regained her property without
violence by pursuing her civil remedies. It also held that the
evidence was barred as derivative of the illegal entry--"the
fruit of the poisonous tree"--and did not fit any of the
exceptions for admissibility. Finally, however, it found that
the officers' entry to protect Burton was not pretextual, but
nevertheless rejected the argument that the entry was justified
under the "community caretaker exception" to the warrant
requirement. Although it acknowledged application of the
doctrine "when there's an emergency situation where the police
have a duty to act," it found that "any emergency which existed
in this case was, in fact, created by the police conduct because
if they had not gone to the premises, there would have been no
confrontation between Miss Burton and [defendant]."
In reviewing the trial court's ruling on a motion to
suppress, "[t]he burden is upon [appellant] to show that th[e]
ruling, when the evidence is considered most favorably to the
[party prevailing below], constituted reversible error." Fore v.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980).
Questions of reasonable suspicion and probable cause to make a
- 5 -
warrantless search are subject to de novo review on appeal. See
McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261
(1997) (en banc). "In performing such analysis, we are bound by
the trial court's findings of historical fact unless 'plainly
wrong' or without evidence to support them[,] and we give due
weight to the inferences drawn from those facts by resident
judges and local law enforcement officers." Id. at 198, 487
S.E.2d at 261.
Police As Community Caretakers
The community caretaker doctrine permits the police to
"'engage in . . . community caretaking functions, totally
divorced from the detection, investigation, or acquisition of
evidence relating to the violation of a criminal statute.'"
Commonwealth v. Waters, 20 Va. App. 285, 289, 456 S.E.2d 527, 529
(1995) (quoting Cady v. Dombrowski, 413 U.S. 433, 441 (1973)).
This doctrine recognizes that
the 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. (citation omitted).
Although the doctrine was originally applied in a case
involving a motor vehicle, we held in Waters that "an officer's
- 6 -
community caretaking functions are not limited solely to
automobile stops." Id. at 291, 456 S.E.2d at 530. In
determining whether appropriate circumstances for a warrantless
entry exist, a court must consider "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." Id. at 290, 456 S.E.2d at 530.
In this case, defendant concedes that the officers' presence
on his front porch was lawful but maintains that the trial court
correctly held that the entry of both Heather Burton and the
officers into his home was unlawful. We disagree. Under the
rationale of the Fifth Circuit Court of Appeals in United States
v. York, 895 F.2d 1026 (5th Cir. 1990), we hold that the
community caretaker doctrine permitted the entry, and we reverse
the trial court's ruling suppressing the evidence. In York, a
man named Bill 2 and his children had been living as guests, by
invitation, in York's house. Id. at 1027. When the belligerent
and intoxicated York threatened the live-in guests, they obtained
police assistance to reenter the house, remove their belongings,
and leave permanently. Id. at 1027-28. While on the premises
assisting and protecting Bill and his family, one officer saw
suspected illegal firearms in plain view. Id. at 1028. After
2
The opinion in York identifies "Bill" only by first name.
See 895 F.2d at 1027.
- 7 -
Bill had finished removing his family's belongings, the officers
left but reported seeing the firearms to the Federal Bureau of
Alcohol, Tobacco and Firearms, which conducted an additional
investigation, obtained a search warrant and eventually arrested
York. Id.
The Fifth Circuit upheld the officers' warrantless entry of
York's house as a community caretaker function. Id. at 1030. It
considered first whether the officers' activity "intrude[d] upon
a reasonable expectation of privacy in such a significant way to
make the activity a 'search.'" Id. at 1028. It acknowledged
that "'searches and seizures inside a home without a warrant are
presumptively unreasonable,'" id. at 1029 (quoting Payton v. New
York, 445 U.S. 573, 586 (1980)), but noted that one's
"expectation [of privacy in the home] . . . can be reduced as a
result of the activities of the home's occupants." Id. The
Court in York reasoned that:
because Bill and his children were guests,
invited to live for a time in York's home,
the threatening actions of York combined with
this permitted occupancy to make it
reasonable for Bill to enlist the aid of the
police in removing from York's premises
possessions that were incidents to his
family's daily life. York's threats of
violence to Bill and his children made it
foreseeable that Bill would seek help in
removing his possessions . . . . When York
invited Bill and his family to share his
residence, he necessarily invited the normal
incidents of joint occupancy, including the
introduction of property which belonged to
Bill which Bill retained the right to remove
when his invitee status ended. Likewise,
when York became intoxicated and belligerent,
it was reasonable to expect that Bill might
- 8 -
ask police officers to make a limited entry
into the house to keep the peace while he
removed his family and personal possessions.
Id. at 1029-30 (emphasis added). In light of the community
caretaker basis for entry, the court held irrelevant whether the
guest had the authority to give valid consent for an entry and
search of the premises. Id. at 1030.
Here, Heather Burton had a right to remove her belongings
when her status as defendant's live-in nanny ended. Defendant
showed signs of hostility and belligerence, and Officer Mras was
aware of defendant's past violent tendencies. Therefore, it was
reasonable for Burton to ask the officers to accompany her to
keep the peace while she removed her belongings. Before
entering, the officers confirmed that Burton had been defendant's
employee and explained to defendant the reason for their entry,
and the evidence shows that the officers' sole purpose in
entering defendant's home was to assist Burton. The trial court
expressly found that the entry was not pretextual. We hold,
therefore, that the community caretaker doctrine permitted the
officers' entry of defendant's home for the limited and
objectively reasonable purpose of helping Burton remove her
belongings.
Independent Source
We further hold that Heather Burton's discovery of the
marijuana in the upstairs attic closet did not come about because
of "exploitation" of the alleged illegal entry. Defendant
- 9 -
conceded on oral argument that the police officers did not
violate his rights by standing on his front porch and asking his
permission for entry. It was at this time that defendant
consented to Burton's entry, and the record contains no evidence
that defendant's consent for Burton's entry was involuntary or
coerced.
Defendant argues that the marijuana should not be admitted
as evidence because its discovery was "fruit of the poisonous
tree," that is, of the alleged illegal entry of the premises by
the police. The courts have recognized "three limitations to the
'fruit of the poisonous tree' doctrine, namely: (1) evidence
attributed to an independent source; (2) evidence where the
connection has become so attenuated as to dissipate the taint;
and (3) evidence which inevitably would have been gained even
without the unlawful action." Warlick v. Commonwealth, 215 Va.
263, 266, 208 S.E.2d 746, 748 (1974). Even if the police had
remained on the porch as the defendant concedes they had the
right to do, Burton, who had been given permission to enter the
house, would have discovered the marijuana and confirmed to the
police that marijuana was present in the house. Once inside the
house, the officers appropriately confined their movements to the
first floor of the residence. It was Burton, an independent
source, who found defendant's marijuana plants in a second floor
attic closet while retrieving her belongings.
Seizure of the Marijuana
- 10 -
After confirming the basis for Burton's knowledge that the
plants were marijuana, the police had probable cause for a search
warrant and properly secured the scene while obtaining a warrant
in order to prevent the destruction of evidence. See, e.g.,
Crosby v. Commonwealth, 6 Va. App. 193, 199, 367 S.E.2d 730, 734
(1988). They allowed defendant to move freely in and out of the
house and around the first floor and remained on the first floor
themselves until exigent circumstances required their immediate
action. See Keeter v. Commonwealth, 222 Va. 134, 141, 278 S.E.2d
841, 846 (1981) (holding that "an exigent circumstance exists
justifying [a warrantless] entry where the law enforcement
officers have probable cause to believe that it is necessary to
prevent the destruction of evidence"). Defendant barricaded
himself in the garage without police opposition, but when the
officers saw him dig a hole in the ceiling of the garage and saw
his legs dangling from the hole, they properly concluded that he
was attempting to reach the marijuana plants on the second floor
in order to hide or destroy evidence. When they rushed to the
second floor and found defendant in the attic closet trying
frantically to hide the marijuana plants, they acted properly in
preventing the further destruction of evidence until the search
warrant arrived. See Crosby, 6 Va. App. at 199, 367 S.E.2d at
734.
Under these facts, we hold that the community caretaker
doctrine permitted Burton's and the officers' initial entry into
- 11 -
the home, and on Burton's independent discovery, the officers had
probable cause to seek a search warrant and to secure the home
pending arrival of that warrant. Finally, exigent circumstances
permitted the officers to enter the second floor of the home and
secure defendant and the marijuana pending the arrival of the
search warrant. As a result, we reverse the trial court's
suppression of the evidence and remand for such further
proceedings as the Commonwealth may be advised consistent with
this opinion.
Reversed and remanded.
- 12 -