dissenting.
Finding no exigent circumstances to justify the warrantless search, and applying the principles underlying the views I expressed in my dissenting opinion in Thims v. Commonwealth, 218 Va. 85, 235 S.E.2d 443 (1977), I must dissent in this case.1
The majority state that “[t]he presence of the Fore car on a large commercial lot open for public business presented problems of accessibility and mobility similar to those in [United States v.] Newbourn, [600 F.2d 452 (4th Cir. 1979)]”. The facts here are distinctly different from those in Newbourn. There, an automobile was parked alongside a public road. With probable cause to believe the vehicle contained a cache of stolen firearms, police officers arrested the occupants of the car and searched its trunk. The Newbourn court held the search valid as a “protective search” authorized by Cady v. Dombrowski, 413 U.S. 433 (1973), and as a “fleeting vehicle search” approved in Chambers v. Maroney, 399 U.S. 42 (1970). 600 F.2d at 458. Obviously, the search in the instant case was not a Cady search. Nor was it a “fleeting vehicle search”. Such a search occurs *1014only when the police encounter a suspect vehicle parked on or near a public road or in a place to which the public has virtually unlimited access.2 See, e.g., Cardwell v. Lewis, 417 U.S. 583 (1974); cf. Coolidge v. New Hampshire, 403 U.S. 443 (1971). Moreover, the dominant exigent circumstance present in Newbourn, viz., firearms posing potential danger to both the investigating officers and the public, is absent here.
The exigency found by the majority is the possibility that the car might have been driven from Sheehy Ford’s lot or the possibility that some of the contents of the trunk might have been removed while Detective Creveling sought a search warrant. I consider these possibilities highly improbable. Creveling knew that Fore, who was in custody, could not move the vehicle. He knew that Christine Fore had informed the authorities of the car’s location and the nature of its contents; it seems unlikely that she would then attempt to remove the vehicle from, the lot or take the stolen property from the trunk. Creveling was also aware that defendant’s other confederate, Ann Zerega, had admitted her involvement in defendant’s felonious career and had identified the scenes of several burglaries. Given these circumstances, Creveling had no cause to believe she would remove either the car or its contents. So far as defendant’s mother-in-law is concerned, there was nothing to show that she even knew about the car, much less that she might pay the repair bill and drive the car away. Furthermore, the Commonwealth introduced no evidence to show that the car was accessible to anyone other than its owners, its bailee, and the police.
As the parties recognized below, the burden was on the Commonwealth to demonstrate the justification for an exemption from the warrant requirement. Arkansas v. Sanders, 442 U.S. 753, 760 (1979). The prosecution does not satisfy its burden simply by asking the courts, with hindsight, to discover an exigency. A circumstance is exigent only when it poses a realistic potential for danger. To justify the type of warrantless search conducted in this case, the prosecution must show a reasonable likelihood that the evidence seized would have been lost if the police had taken time to obtain a warrant. To the extent Patty v. Commonwealth, 218 Va. 150, 235 S.E.2d 437 (1977), cert. denied, 434 U.S. 1010 (1978), and Thims v. Commonwealth, supra, relieve the Commonwealth of its burden, those cases should be overruled.
The threshold question in any Fourth Amendment case is whether the defendant had a “legitimate expectation of privacy” in the place searched or the property seized. Rakas v. Illinois, 439 U.S. 128, 148-49 (1978). Although the majority observe that Fore “relinquished substantial expectations of privacy” when he left the automobile at the garage for brake repairs, their inquiry into the legitimacy of the search tacitly recognizes that defendant retained a legitimate expectation of privacy as to the trunk.
Language in some opinions strongly suggests that such circumstances, standing alone, justify a warrantless search. See Cady, 413 U.S. at 441-42; Newbourn, 600 F.2d at 454, 458; see also Arkansas v. Sanders, 442 U.S. 753, 760-61 (1979).