Wood v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Baker, Benton, Coleman,
Willis, Elder, Annunziata and Overton
Argued at Richmond, Virginia

CALVIN ARTHUR WOOD, JR.
OPINION BY
v. Record No. 0605-96-2 JUDGE JAMES W. BENTON, JR.
MARCH 31, 1998
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF LOUISA COUNTY
Jay T. Swett, Judge

John R. Maus for appellant.

Steven A. Witmer, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.

A trial judge convicted Calvin Arthur Wood, Jr. of four

offenses involving the possession of cocaine, marijuana, and a

firearm. On appeal, Wood contends the trial judge erred using

the "community caretaker" exception to the warrant requirement as

a basis to deny his motion to suppress evidence. A panel of this

Court, with one judge dissenting, affirmed the trial judge's

decision. See Wood v. Commonwealth, 24 Va. App. 654, 484 S.E.2d

627 (1997). Upon rehearing en banc, we reverse the trial judge's

decision denying the motion to suppress.

I.

On the night of October 23, 1993, Wood's wife appeared at

the Louisa County Sheriff's Office with visible signs of injury

to her head and face. She told officers she had been assaulted
by Wood at their residence. When Officer Gholson, Deputy Hicks,

and State Trooper Stanley arrived at Wood's residence, Gholson

advised Wood that they were investigating Wood's wife's complaint

that Wood assaulted her. Wood admitted the officers into the

residence and led them through the living room into the kitchen.

After a brief discussion, Gholson arrested Wood, frisked him,

and handcuffed him. Gholson also removed Wood's house keys from

his pocket and placed them in a kitchen drawer.
Wood's two children, ages three and four, were asleep in the

living room. Wood and the officers did not discuss whether those

children were the only other occupants of the house. Although

the record indicates that Wood's teenage stepson had been

reported missing a few days earlier, that fact was not raised by

either the officers or Wood. Deputy Hicks transported Wood to

the sheriff's office.

Gholson and Stanley remained with the sleeping children

while the sheriff's office contacted a social services

representative to come for the sleeping children. Gholson

testified that he and Stanley remained in the kitchen as the

children slept in the adjacent living room. Gholson also

testified that he did not hear any noises or any activity from

upstairs during the time he was at the house. Stanley testified

that he smelled a foul odor, which he could not identify.

The social services representative arrived at the residence

within thirty to forty minutes and took the children. Gholson

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and Stanley then looked throughout the house, including the

second floor. They entered the second floor by opening a door in

a room on the first floor and ascending a flight of stairs.

Gholson stated that his purpose in going upstairs was "[t]o

secure the residence, make sure there was nobody else there." He

further testified that he "had prior knowledge of a missing

juvenile report on file with the sheriff's office" and that he

saw a light upstairs. Stanley testified that they "wanted to

make sure there was nobody else, no kids or anything."
In plain view, in the upstairs bedroom, Gholson and Stanley

found marijuana, drug paraphernalia, and a firearm. The officers

testified that they did not open any cabinets or containers at

that time. Instead, they returned to the sheriff's office to

obtain a search warrant. They did not lock the door to the

residence when they left to obtain the search warrant.

At the sheriff's office, Wood twice refused to give Hicks

consent to search his residence. After Wood first refused,

Gholson, who had then returned from Wood's residence, told Hicks

to ask again. Two to four hours after Wood's arrival at the

sheriff's office, Wood told the officers they could search his

residence. When Wood consented to a further search, Hicks and

Gholson, who were in the process of preparing an affidavit in

support of a search warrant based on Gholson's observations,

ceased their efforts to obtain a search warrant. They returned

to Wood's residence and assisted in the additional search and

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seizure of evidence used to support Wood's convictions.

Wood filed a motion to suppress the evidence found in his

residence. After hearing evidence and reviewing the briefs of

counsel, the trial judge ruled that "the intrusion of the

officers in the [second] floor of [Wood's] residence was

justified as the officers were carrying out their duties as

community caretakers, and that after being lawfully in the area

in which [Wood] had an expectation of privacy, the officers were

entitled to seize what was in plain view." Accordingly, the

judge denied Wood's motion to suppress.
II.

"The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated." U.S. Const. amend. IV. By its

explicit terms, "[t]he Fourth Amendment protects the individual's

privacy in a variety of settings. In none is the zone of privacy

more clearly defined than when bounded by the unambiguous

physical dimensions of an individual's home." Payton v. New

York, 445 U.S. 573, 589 (1980). Well settled is the "'basic

principle of Fourth Amendment law' that searches . . . inside a

home without a warrant are presumptively unreasonable." Id. at

586 (citation omitted).

The Supreme Court of the United States first addressed the

"community caretaker doctrine" in Cady v. Dombroski, 413 U.S. 433

(1973). In affirming the reasonableness of the search in that

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case, the Court discussed well-established privacy distinctions

between motor vehicles and residences.
Because of the extensive regulation of motor
vehicles and traffic, and also because of the
frequency with which a vehicle can become
disabled or involved in an accident on public
highways, the extent of police-citizen
contact involving automobiles will be
substantially greater than police-citizen
contact in a home or office. Some such
contacts will occur because the officer may
believe the operator has violated a criminal
statute, but many more will not be of that
nature. 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.
The constitutional difference between
searches of and seizures from houses and
similar structures and from vehicles stems
both from the ambulatory character of the
latter and from the fact that extensive, and
often noncriminal contact with automobiles
will bring local officials in "plain view" of
evidence, fruits, or instrumentalities of a
crime, or contraband.

Id. at 441-42.

The Supreme Court's emphasis on the distinction between

motor vehicle searches and searches of an individual's home makes

clear that the community caretaking function used to uphold a

vehicle search, such as existed in Cady, may not be sufficient to

justify an intrusion into an individual's home. The fact that

circumstances which justify a warrantless search in an automobile

may not justify an intrusion into a home or office under the

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community caretaking function was reiterated in South Dakota v.

Opperman, 428 U.S. 364, 367 (1976), when the Court stated the

following:
This Court has traditionally drawn a
distinction between automobiles and homes or
offices in relation to the Fourth Amendment.
Although automobiles are "effects" and thus
within the reach of the Fourth Amendment,
Cady v. Dombrowski, 413 U.S. 433, 439 (1973),
warrantless examinations of automobiles have
been upheld in circumstances in which a
search of a home or office would not.
Cardwell v. Lewis, 417 U.S. 583, 589 (1974);
Cady v. Dombrowski, supra, at 439-440;
Chambers v. Maroney, 399 U.S. 42, 48 (1970).

Thus, the Supreme Court has yet to decide whether a situation

might exist that would justify a warrantless intrusion into an

individual's home under the "community caretaker" doctrine, as

distinguished from an emergency or exigent circumstances. The

Supreme Court has not decided that issue, and we need not decide

it here because, on these facts, the officers' intrusion into the

room on the second floor of the home was not totally divorced

from investigating criminal activity and acquiring evidence and,

therefore, could not be considered a caretaking function.

In Cady, the Supreme Court described "community caretaking
functions" as being "totally divorced from the detection,

investigation, or acquisition of evidence relating to the

violation of a criminal statute." 413 U.S. at 441. The

undisputed evidence in this record proved that the officers went

to Wood's residence to investigate the report that Wood assaulted

his wife. When the police arrived, they entered Wood's house to

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discuss the assault, arrested Wood "almost immediately" in the

kitchen, and took Wood to the police station. After the social

worker left with the children, the officers searched the second

floor living area. Because the search was a direct result of

Wood's arrest, the search was not "totally divorced from the

detection, investigation, or acquisition of evidence relating to

the violation of a criminal statute." Id. The officers entered

the residence to conduct a criminal investigation and were still

so employed when they began the search.
We, therefore, hold that the warrantless entry by the

officers into the second floor of Wood's residence was not

justified by any "community caretaker" function. The "community

caretaker" exception to the warrant requirement is a narrowly

construed exception to the Fourth Amendment warrant requirement.

Nothing in this record supports an extension of its application

to a warrantless intrusion into Wood's upstairs bedroom under the

circumstances proved in this record.

The Commonwealth suggests that the police officers went

upstairs to search for a missing teenager. Although the officers

testified that they knew Wood's teenage stepson had been reported

missing and that they entered the second floor to search for the

missing teenager, the evidence belies that assertion. Officer

Gholson testified that the Wood family earlier had reported

missing the teenager "that lived at [Wood's] residence."

Nevertheless, the officers stated that they were searching Wood's

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residence for the missing teenager. The explanation that the

officers were searching for a missing child at that child's own

residence is dubious at best.

The evidence also proved that after the officers arrested

Wood and removed him from the residence at midnight, the two

officers remained behind because two children were sleeping in

the living room. While the two officers waited in the residence

for the social worker to arrive, they did not look for the

teenager. Only after the social worker left with the other

children did they begin their search. The delay in conducting

the search casts additional doubt on the officers' assertion that

they were merely looking for the teenager. Moreover, even if

they were searching the house to find a teenager who had been

reported missing by the parents who resided in the house, the

officers obviously were then conducting a criminal investigation.

Simply put, the evidence in this case proves that the search was

not "totally divorced from" a criminal investigation.
The officers also stated that the search was instigated, in

part, by the fact that they saw a light upstairs. The officers

were not privileged to explore other rooms in the residence

merely because they saw a light on in a residence at night. They

did not inquire of Wood or his wife whether other people were in

the residence, they heard no noise to suggest another person was

present, and they did not call aloud while in the residence to

ascertain whether anyone else was present. Moreover, the

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officers' stated concern about securing the residence was belied

by the fact that they left the residence unlocked when they went

to apply for a search warrant. Gholson removed the keys from

Wood and could have used them to lock the residence. Because the

evidence indicates that the search was "a pretext concealing an

investigatory police motive," Opperman, 428 U.S. at 376, the

search cannot be deemed a valid exercise of the community

caretaking function.
III.

After upholding the officers' "community caretaking" search,

the trial judge found that Wood "freely and voluntarily"

consented to a further search. That finding was made, however,

within the context of the trial judge's ruling that the officers

lawfully entered the room upstairs where they saw the marijuana

and drug paraphernalia. Because we hold that the entry into the

room upstairs was not a lawful search, we must consider whether

Wood's consent to the second search of his residence "purged the

taint" of the initial unlawful search.

If Wood's consent was obtained as a product of the illegal

search, it was invalid as a "fruit of the poisonous tree," see
Walls v. Commonwealth, 2 Va. App. 639, 651, 347 S.E.2d 175, 182

(1986), unless the Commonwealth can show that the consent was

"sufficiently an act of free will to purge the primary taint of

the illegal [search]." Wong Sun v. United States, 371 U.S. 471,

486 (1963). Although the trial judge found that Wood's consent

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to the second search was given "freely and voluntarily," the

principle is well established that "[t]he fact that the consent

was voluntary . . . does not mean that it was 'sufficiently an

act of free will to purge the primary taint.'" Walls, 2 Va. App.

at 654, 347 S.E.2d at 183 (citations omitted). In determining

whether a consent was "sufficiently attenuated from the [illegal

search] to purge its taint," this Court has "considered, in

addition to the voluntariness of the consent, the temporal

proximity and the presence of intervening circumstances between

the [illegality] and the consent, [the defendant's] awareness of

a right to withhold consent, and the purpose and flagrancy of the

police misconduct." Commonwealth v. Ealy, 12 Va. App. 744, 755,

407 S.E.2d 681, 688 (1991). See Walls, 2 Va. App. at 653, 347

S.E.2d at 183.

The circumstances surrounding the initial search of Wood's

residence and the later request for Wood's consent to search

manifestly demonstrate that "the evidence obtained pursuant to

[Wood's] voluntary consent to search was '"come at by

exploitation of [the initial] illegality" rather than "by means

sufficiently distinguishable to be purged of the primary

taint."'" Ealy, 12 Va. App. at 757, 407 S.E.2d at 689 (quoting

Wong Sun, 371 U.S. at 488 (citation omitted)). The officers did

not seek Wood's consent until after they had made their illegal

foray into the upstairs of Wood's residence and found

incriminating evidence. They sought Wood's consent to further

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search the residence for other incriminating evidence that might

have been hidden from view. The evidence suggests no basis to

believe the officers would have attempted to secure a search

warrant or to gain Wood's consent had they not initially

unlawfully discovered the incriminating evidence. "Upon this

record, the officers clearly would not have sought [Wood's]

consent if they had not seen the [drugs and paraphernalia] during

their prior unlawful search[] of [the upstairs bedroom]. Thus,

. . . [Wood's] consent to search was not an independent source of

the evidence, but rather was an exploitation of the unlawful

search[]." Ealy, 12 Va. App. at 757, 407 S.E.2d at 689.

Further, the temporal proximity and the absence of any

intervening circumstances between the illegal search and the

consent fail to establish a break in the causal connection

between the police misconduct and the subsequent consent. The

events occurred within hours after Wood was arrested. No

evidence in the record proved that any intervening circumstances

occurred that tended to sever the connection between the events.

Because the officers' decision to seek Wood's consent was

prompted by what they had seen during the initial unlawful

search, Wood's consent was tainted by the unlawful search.

Therefore, Wood's consent, even if voluntarily given, was not

sufficiently attenuated from the warrantless search so as to

"purge the taint" of that event. See Walls, 2 Va. App. at 655,

347 S.E.2d at 185.

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 For these reasons, we reverse Wood's convictions and remand

the case to the circuit court for further proceedings if the

Commonwealth be so advised.

Reversed and remanded.

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Willis, J., with whom Fitzpatrick, C.J., joins, concurring.

I understand the community caretaker doctrine to be as

described in the dissent. Police officers are charged with the

duty of promoting public safety and rendering needed assistance.

This duty is separate from the detection of crime. The

discharge of this duty may, under appropriate circumstances,

justify warrantless entry into a residence. However, I do not

find such circumstances to have existed in this case. Therefore,

I concur in the result reached by the majority.

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Annunziata, J., with whom Overton, J., joins, dissenting.

The threshold and dispositive issue in this case is whether

the officers faced circumstances sufficient to justify their

entry into and search of the second floor of appellant's home. 1

Appellant does not dispute that if the entry was lawful, the

evidence to support his convictions was properly seized and

admitted into evidence. The Commonwealth concedes that if the

entry was unlawful, all the seized evidence was tainted and

inadmissible to support appellant's convictions.
"The ultimate standard set forth in the Fourth Amendment is

reasonableness." Cady v. Dombrowski, 413 U.S. 433, 439 (1973).

Unreasonable searches and seizures are prohibited, but not those

which are "reasonable in the circumstances." Verez v.

Commonwealth, 230 Va. 405, 410, 337 S.E.2d 749, 752 (1985).

Warrantless entries and warrantless searches are presumed to be

unreasonable, and the Commonwealth bears the burden to prove

their justification. E.g., id.; Commonwealth v. Ealy, 12 Va.

App. 744, 751, 407 S.E.2d 681, 686 (1991).

In the present case, the trial court found the officers'

entry of the second floor of appellant's home justified under the

community caretaker doctrine. See Commonwealth v. Waters, 20 Va.

App. 285, 456 S.E.2d 527 (1995); Barrett v. Commonwealth, 18 Va.

App. 773, 447 S.E.2d 243 (1994) (en banc), rev'd on other

1
There is no dispute that the officers' initial entry into
appellant's home was lawful.

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grounds, 250 Va. 243, 462 S.E.2d 109 (1995). 2 Pointing to the

officers' knowledge of appellant's missing stepchild, the light

shining through the second floor window, the unusual smell

permeating the house, appellant's apparent beating of his wife,

and the fact that the officers were the last to leave appellant's

home, the Commonwealth argues that we should uphold the trial

court's ruling. I agree.
[Q]uite clearly police have occasion to enter
premises without a warrant for a variety of
. . . purposes. The police have "complex and
multiple tasks to perform in addition to
identifying and apprehending persons
committing serious criminal offenses"; by
design or default, the police are also
expected to "reduce the opportunities for the
commission of some crimes through preventive
patrol and other measures," "aid individuals
who are in danger of physical harm," "assist
those who cannot care for themselves,"
"resolve conflict," "create and maintain a
feeling of security in the community," and
"provide other services on an emergency
basis."

3 Wayne R. LaFave, Search and Seizure § 6.6 at 389-90 (1996).

The lawfulness of police action undertaken pursuant to such roles

is sometimes evaluated in terms of the "community caretaking

function," first discussed by the United States Supreme Court in
Cady v. Dombrowski, 413 U.S. 433 (1973). Cady involved the

warrantless search of an automobile. 3 First in Barrett and later
2
In reversing Barrett, the Supreme Court held that the
evidence did not support a "reasonable suspicion" that Barrett
was in need of police assistance. The Supreme Court did not rule
on this Court's adoption of the community caretaker doctrine.
250 Va. at 247-48, 462 S.E.2d at 112.
3
The Court in Cady discussed well-established privacy

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in Waters, this Court relied on Cady and adopted the community

caretaker doctrine to justify warrantless, investigative

"seizures" of people for purposes of aiding a citizen reasonably

believed to be in distress. This Court has also held that the

community caretaker functions are not limited to automobile

stops. Waters, 20 Va. App. at 291, 456 S.E.2d at 530.

Under the facts of this case, I would affirm the trial

court's application of the community caretaker doctrine to

justify the warrantless entry into and investigative search of

the second floor of appellant's home. In so doing, I note that

in the context of a warrantless entry and search, this Court has

noted little, if any, distinction in Virginia law between the

circumstances governing the application of the community

caretaker doctrine and those governing the application of the

distinctions between automobiles and residences in affirming the
reasonableness of the search in that case. 413 U.S. at 439-42.
Such distinctions, however, have not precluded courts from
evaluating warrantless entry and search of premises under the
community caretaker function, see LaFave, supra, § 6.6 at 390
n.3. While I recognize the distinction between the search of an
automobile and the search of a home, certain factors relevant to
the Cady analysis provide guidance here. First, the Cady Court
noted that the "police had exercised a form of custody or control
over the [disabled automobile]" as a result of their
investigating an automobile accident and the disabled driver's
inability to make arrangements to have the automobile towed and
stored. 413 U.S. at 442-43. Second, the Court noted that the
police had the car towed to a private garage where, to protect
the public, the trunk was searched in accordance with police
procedure to assure the removal of a revolver the police believed
to be there. Id. at 443. Finally, the Court noted that in
conducting the "search," the police were not motivated by a
desire to find incriminating evidence of possible criminal
behavior. Id.

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"emergency" exception to the warrant requirement. Compare

Waters, 20 Va. App. at 288-91, 456 S.E.2d at 529-30, and Barrett,

18 Va. App. at 776-79, 447 S.E.2d at 245-46, with Reynolds v.

Commonwealth, 9 Va. App. 430, 436-37, 388 S.E.2d 659, 662-64

(1990), and Shannon v. Commonwealth, 18 Va. App. 31, 34-35, 441

S.E.2d 225, 226-27, aff'd on reh'g, 19 Va. App. 145, 449 S.E.2d

584 (1994). This Court has defined the community caretaker

function of the police to be that duty which "extends beyond the

detection and prevention of crime, to embrace also an obligation

to maintain order and to render needed assistance." Barrett, 18

Va. App. at 777, 447 S.E.2d at 245. The community caretaker

doctrine, like the emergency exception to the warrant

requirement, is grounded in consideration of the fact that

police [officers] owe "duties to the public,

such as rendering aid to individuals in

danger of physical harm, reducing the

commission of crimes through patrol and other

preventive measures, and providing services

on an emergency basis."
Barrett, 18 Va. App. at 778, 447 S.E.2d at 246 (quoting Reynolds,

9 Va. App. at 436, 388 S.E.2d at 663 (citation omitted)); see

also Waters, 20 Va. App. at 289, 456 S.E.2d at 529; Shannon, 18

Va. App. at 34, 441 S.E.2d at 227. "[T]he duty of the police

embraces the function of maintaining public order and providing

necessary assistance to persons in need or distress." Barrett,

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18 Va. App. at 778, 447 S.E.2d at 246.

Applying the community caretaker doctrine, I would find that

the officers' entry into the second floor of appellant's home was

lawful.
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.

Waters, 20 Va. App. at 290, 456 S.E.2d at 530. An officer may

take appropriate action under the community caretaker doctrine

where the officer maintains a reasonable and articulable

suspicion, based on objective facts, that such action is

necessary. See Barrett, 18 Va. App. at 778, 447 S.E.2d at 246.

"Objective reasonableness remains the linchpin of determining the

validity of [such] action. . . ." Waters, 20 Va. App. at 290,

456 S.E.2d at 530. Cf. Reynolds, 9 Va. App. at 437, 388 S.E.2d

at 663-64 (applying objective reasonableness test to emergency

exception to warrant requirement).

Determination of whether the officers had reasonable

suspicion to exercise their community caretaker function involves

a mixed question of law and fact. The trial court's findings of

historical fact will be upheld absent clear and manifest error.

See Reynolds, 9 Va. App. at 437, 388 S.E.2d at 664. We review de
novo the trial court's application of those facts to the legal

standard of "reasonable suspicion." See Ornelas v. United

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States, 116 S. Ct. 1657, 1662 (1996). That standard is

determined from the perspective of the objectively reasonable

police officer, and we give deference to the inferences the

police officer draws from the historical facts with which he or

she is faced. Id. at 1663; Murphy v. Commonwealth, 9 Va. App.

139, 144, 384 S.E.2d 125, 128 (1989) ("[W]hen a court reviews

whether an officer had reasonable suspicion . . . it must view

the totality of the circumstances and view those facts

objectively through the eyes of a reasonable police officer with

the knowledge, training, and experience of the investigating

officer.").
In the present case, the officers had a reasonable basis to

justify the exercise of their community caretaker function, which

led them to enter the second floor of appellant's home. When the

officers responded to appellant's house, they had reason to

believe that appellant recently had beaten his wife and that

appellant's stepson was missing. Upon their arrival, the

officers noticed a light shining through a second floor window

and determined that appellant was not on the second floor of the

house when they arrived. One of the officers noticed a foul odor

coming from somewhere in the house. Although neither officer

heard any noise coming from the second floor, that alone would

not preclude the presence of someone on that floor, and neither

officer could be certain whether anyone else was in the house.

The officers were assigned the duty to assure the safety and

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welfare of appellant's two younger children asleep in the living

room of the house, and they were the last to leave the premises.

Before leaving, the officers investigated the remaining rooms of

the house to make certain that appellant's missing stepson was

not there and to avoid leaving anyone else behind and the house

unsecured. The trial court's finding that the officers went

upstairs to search for the defendant's missing child is a finding

of historical fact supported by the evidence, and should not be

disturbed. Reynolds v. Commonwealth, 9 Va. App. 430, 437, 388

S.E.2d 659, 663-64 (1990); see Shears v. Commonwealth, 23 Va.

App. 394, 398, 477 S.E.2d 309, 311 (1996) (due weight is afforded

"'a trial court's finding that [an] officer was credible and

[that the officer's] inference was reasonable'").

I further disagree with the majority's conclusion that the

evidence in this case proves that the search was not "totally

divorced from" a criminal investigation. Indeed, all the

evidence is to the contrary. Because the officers were guided by

their concern for the child they believed to be missing, their

investigation was limited to those places where they could

reasonably expect to find a person; they did not open any

cabinets or containers. Furthermore, in order to reach the

conclusion that the search was instigated for the purpose of

conducting a criminal investigation, the majority, a fortiori,

has substituted its judgment for that of the trial court with

respect to the weight of the evidence and the credibility of the

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witnesses, in contravention of well-settled principles governing

the standard of review. See, e.g., Byers v. Commonwealth, 23 Va.

App. 146, 152-53, 474 S.E.2d 852, 855 (1996) (citing Cable v.

Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992)).

Finally, I note that while lawfully present on the second

floor, the officers discovered certain items in plain view, the

incriminating nature of which was immediately apparent to them.

Accordingly, the plain view rule was met, and the items were

subject to seizure and admissible in evidence. See Reynolds, 9

Va. App. at 439, 388 S.E.2d at 665; Waters, 20 Va. App. at 291,

456 S.E.2d at 530.

Accordingly, I would affirm appellant's convictions.

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Baker, J., concurring in dissent.

I concur with the dissenting opinion; however, I would

caution that the community caretaker doctrine must be applied on

a fact-specific basis. In my opinion, this case meets the

fact-specific requirement.

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