Commonwealth v. Waters

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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