concurring and dissenting.
I concur in the holding that the trial judge erred in admitting as evidence a recorded conversation between Daniel Clayton Conway and a police officer that was not disclosed to Conway as required by a discovery order and the Rules of Court. I also concur in the holding that the error constitutes reversible error.
I dissent from the holding that the officer’s seizure of Conway’s shirt was lawful. Warrantless searches and seizures inside a residence are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586 (1980). Thus, the Commonwealth bears a “heavy burden” when attempting to justify a warrantless seizure. Welsh v. Wisconsin, 466 U.S. 740, 749 (1984). Because the Commonwealth relies upon the plain view doctrine to justify the seizure, the Commonwealth must prove that clearly incriminating evidence was seized from a place where the officer had a lawful right to be. Coolidge v. New Hampshire, 403 U.S. 443, 446 (1971).
The evidence in this case does not establish that the officer had a right to be in Conway’s bedroom. The officer’s testimony established that he was not invited into Conway’s bedroom or to any other place in the residence beyond the room of his initial entry. The officer testified that after he told Conway that he wanted Conway to accompany him to a police station to discuss the death of a female, Conway “walked back [to get a coat] and I started to follow him and his mother told me that he was not going anywhere. I said, I just wanted to make sure.” Thus, without invitation or consent, and despite the mother’s objection, the officer followed Conway when Conway “used the bathroom.” The officer then followed Conway to his bedroom and “allowed” Conway to get his coat. No exigent circumstances or any other recognized judicial doctrine justified this assertion of official authority as a basis for intruding into the private areas of Conway’s residence. See Servis v. Commonwealth, 6 Va. App. 507, 529-34, 371 S.E.2d 156, 167-70 (1988) (Benton, J., dissenting).
Further, “[t]he [United States] Supreme Court has consistently refused ... to engage in a balancing of competing interests or to sustain a search on less than probable cause when the search oc*724curred in a place where society recognizes a strong interest in privacy.” United States v. Winsor, 846 F.2d 1569, 1578 (9th Cir. 1988). Such highly regarded privacy interests have only been compromised in accordance with Terry principles when the police have been armed with an arrest warrant issued by a neutral and detached magistrate. Maryland v. Buie, 494 U.S. 325 (1990)., In that narrow instance, the Court considered it reasonable for an officer to conduct a limited protective sweep based on “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area swept harbors an individual posing a danger to those on the arrest scene.” Id. at 334. As Justice Stevens emphasized in his concurrence, the Buie court held “that reasonable suspicion ... is necessary to support a protective sweep while an arrest is in progress..” Id. at 337 (emphasis added). In Buie, the Supreme Court expressly adhered to its position that probable cause is required to effect a nonconsensual or nonexigent intrusion into one’s legitimate expectation of privacy. Id.
I believe the majority mistakenly adopts the position that Buie is consistent with today’s decision. The Supreme Court was unequivocal in Buie that its extension of Terry principles to justify an elevated police intrusion into the inner-sanctum of a person’s home was premised not on whether the officer was lawfully in the home but whether the officer was making an arrest under the authority of a warrant. Nowhere in the text of Buie did the Court imply that a protective sweep of a private residence may be premised merely on a reasonable suspicion that some unidentified element harbored within the house may pose a danger to the officer. In fact, the Court was meticulous in its effort to avoid such a reading. I quote at length:
A “protective sweep” is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.
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A Terry or Long frisk occurs before a police-citizen confrontation has escalated to the point of arrest. A protective sweep, in contrast, occurs as an adjunct to the serious step of *725taking a person into custody for the purpose of prosecuting him for a crime.
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Nor do we here suggest, as the State does, that entering rooms not examined prior to arrest is a de minimum intrusion that may be disregarded. We are quite sure, however, that the arresting officers are permitted in such circumstances to take reasonable steps to ensure their safety after, and while making, the arrest.
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We also hold that as an incident to the arrest the officer could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.
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The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.
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The type of search we authorize today is far removed from the “top-to-bottom” search involved in Chimel; moreover, it is decidedly not “automatic],” but may be conducted only when justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene.
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The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.
494 U.S. at 327-37 (emphasis added).
*726Buie by no stretch of the imagination justifies the intrusion that occurred in Conway’s home. The Court’s precise language limited protective sweeps only to instances of in-home arrests presumptively founded upon probable cause. As the search in this case was not made in conjunction with an in-home arrest, it does not fall within the ambit of any recognized exception to the Fourth Amendment reasonableness requirement. I disagree, therefore, with the unprecedented proposition that an officer may conduct a protective sweep of a person’s home, based on a suspicion of danger to the officer, whenever the officer is lawfully within the home of someone who the officer is not lawfully arresting. Buie is not precedent for this expansion of police discretionary conduct accomplished at great expense to fundamental constitutional protections.
Conway was not under arrest and was lawfully within his own residence. Without justification or consent, the officer roamed into rooms other than the one to which the threshold carried him. The majority adopts the unprecedented theory that a police officer, upon a warrantless entry of a residence, may wander and search into the private recesses of that residence under the guise of some nebulous and unarticulated safety concern that the occupant may be implicated in a crime. The majority simply sweeps away the significance of the exigency that occurs during an arrest and allows an unprecedented search of a residence under the guise of a “potential for danger.” That rubric will support unlawful police action whenever an officer perceives a need to conduct a search. Just as in Servís, the majority simplistically equates suspicion with “potential for danger” and thereby perpetuates the erosion of the fourth amendment in Virginia. The officer’s conduct was unreasonable, unlawful, and cause to exclude evidence that was obtained.
Moreover, when the officer followed Conway as he went to get a coat, the officer had, at best, only reasonable suspicion that the red t-shirt he saw in Conway’s room was the same “red shirt with a rebel flag on the back” that was worn by the person who drove away from the motel. In order to confirm his suspicion, the officer picked up the shirt to expose the back, which was not visible while the shirt was on the floor. He seized the shirt when he saw the flag on the back, and he also seized a pair of blue jeans that he discovered when he lifted the shirt. The plain view doctrine does not *727apply under these circumstances. See Lance v. State, 425 N.E.2d 77, 81 (Ind. 1981) (plain view doctrine inapplicable where blood stains were not readily apparent until officers picked up trousers and examined them).
The officer’s suspicion that the shirt may have had a flag on its back did not amount to probable cause to believe that the shirt was incriminating evidence. He possessed no privilege or authority to lift the shirt to verify his suspicion.
[T]he “distinction between ‘looking’ at a suspicious object in plain view and ‘moving’ it even a few inches” is much more than trivial for purposes of the Fourth Amendment. It matters not that the search uncovered nothing of any great personal value to [the accused] — serial numbers rather than (what might conceivably have been hidden behind or under the equipment) letters or photographs. A search is a search, even if .it happens to disclose nothing but the bottom of a turntable.
Arizona v. Hicks, 480 U.S. 321, 325 (1987). If “an officer discovers facts which give him reason to believe that evidence of a crime will be found by a further intrusion beyond the scope of the original intrusion, the ‘plain view’ doctrine is inapplicable unless there is some independent justification for such further intrusion.” United States v. Bradshaw, 490 F.2d 1097, 1101 (4th Cir.), cert. denied, 419 U.S. 895 (1974).
Because the warrantless search and seizure occurred at a place where the officer had no right to be and were not based on probable cause, I would hold that the trial judge erred in denying the motion to suppress.