                     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 -
