                      COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Bray and
          Senior Judge Overton *
Argued at Norfolk, Virginia


LARRY S. BAUMGARDNER
                                           MEMORANDUM OPINION** BY
v.           Record No. 0409-98-1          JUDGE NELSON T. OVERTON
                                              FEBRUARY 9, 1999
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                        Alan E. Rosenblatt, Judge
             Joseph A. Migliozzi, Assistant Public
             Defender, for appellant.

             Marla Graff Decker, Assistant Attorney
             General (Mark L. Earley, Attorney General, on
             brief), for appellee.



     Larry S. Baumgardner (defendant) appeals his conviction for

possession of marijuana, in violation of Code § 18.2-250.1.      He

contends on appeal that evidence used against him at trial was

seized in violation of the Fourth Amendment to the United States

Constitution.     Specifically, he argues that the marijuana plants

seized by police in his attic were the proceeds of an illegal

entry and, therefore, should have been suppressed.     Because we

hold that the marijuana was lawfully seized and there was no

error in its admission in the trial court, we affirm.
     *
      Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
     **
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
     The parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedental

value, we recite only those facts necessary to disposition of the

appeal.

     Defendant claims that police violated his Fourth Amendment

rights against unreasonable searches and seizures when they

entered his home.   He assumes that the marijuana found upstairs

was the result of that entry.   Defendant then concludes that the

trial court should have excluded such improperly seized evidence.

 See Segura v. United States, 468 U.S. 796, 804-05 (1984).

     The Commonwealth has argued that the entry was permissible

under the "community caretaker" doctrine.   The Commonwealth's

position is that the officers were assisting Ms. Heather Burton,

defendant's former employee, in collecting her belongings from

defendant's home, protecting her from interference from defendant

and such assistance and protection fall under the community

caretaker exception to the warrant requirement.   Under this

doctrine, police "'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.'"    Commonwealth v. Waters, 20 Va.

App. 285, 289, 456 S.E.2d 527, 529 (1995) (citing Barrett v.

Commonwealth, 18 Va. App. 773, 776, 447 S.E.2d 243, 245 (1994)

(en banc), rev'd on other grounds, 250 Va. 243, 462 S.E.2d 109

(1995)).



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        We hold that whether the police were properly in the lower

level of defendant's home is irrelevant.    The police intrusion

did not result in the information which led to the discovery of

the marijuana, which was itself on the second floor.      The

exclusionary rule and the "fruit of the poisonous tree" doctrine

were meant to exclude evidence procured through wrongful police

conduct.     See Wong Sun v. United States, 371 U.S. 471, 484

(1962).    The conduct at bar did not, under either defendant's or

the Commonwealth's theories, actually lead to discovery of the

drugs.    The marijuana plants were found in defendant's attic by

Ms. Burton.    The critical question, therefore, is not whether the

police were entitled to be on the first floor, but whether Ms.

Burton was entitled to be on the second.
        Defendant claims that the police officers who accompanied

Ms. Burton coerced him into allowing Ms. Burton to enter his

home.    In defendant's argument, he refers to Ms. Burton as an

"agent" who was sent into the house to spy for the police.      The

Commonwealth argues that Ms. Burton was not an agent but was a

source independent of the police presence and, therefore,

information obtained from her was not tainted.

        "The exclusionary rule has traditionally barred from trial

physical, tangible materials obtained either during or as a

direct result of an unlawful invasion."     Id. at 485.   "'[T]his

does not mean that the facts thus obtained become sacred and

inaccessible.    If knowledge of them is gained from an independent



                                 - 3 -
source they may be proved like any others.'"    Warlick v.

Commonwealth, 215 Va. 263, 265-66, 208 S.E.2d 746, 748 (1974)

(quoting Silverthorne Lumber Co. v. United States, 251 U.S. 385,

392 (1920)).   In order for Ms. Burton's information to be

considered an independent source, she must have been in the house

with the consent of defendant.    Consent procured by coercion is

not, of course, permissible and would render Ms. Burton's entry

as illegal as if the police themselves had entered the second

floor.
     "The question of whether a particular 'consent to a search

was in fact voluntary or was the product of duress or coercion,

express or implied, is a question of fact to be determined from

the totality of all the circumstances.'"    Deer v. Commonwealth,

17 Va. App. 730, 735, 441 S.E.2d 33, 36 (1994) (quoting

Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)).     "The

burden rests with the Commonwealth to demonstrate the lack of

duress."   Commonwealth v. Rice, 28 Va. App. 374, 378, 504 S.E.2d

877, 879 (1998) (citing Lowe v. Commonwealth, 218 Va. 670, 678,
239 S.E.2d 112, 117 (1977), cert. denied, 435 U.S. 930 (1978)).

The Commonwealth proved that three police officers arrived at

defendant's residence with Ms. Burton.   Defendant answered the

front door when they knocked.    They asked for consent to enter

but defendant "said she could come in and get her stuff but we

couldn't go in. . . . [Ms. Burton] asked us to come in with her

because she was afraid."




                                 - 4 -
     The evidence is uncontradicted that Ms. Burton was given

permission to enter the house.    It is equally clear that

defendant was belligerent, hostile and adamantly refused consent

to the police officers.    Given this evidence we must conclude

that defendant was not intimidated by the police presence and was

not acting under coercion when he admitted Ms. Burton.

     Once this conclusion is reached, the result which follows is

clear.   If Ms. Burton had consent to retrieve her belongings, she

had the authority to go upstairs where some of her possessions

were kept.    It was there that she saw the marijuana plants

growing in the attic.    This constitutes a source of information

independent from the police entry.       See Commonwealth v. Ealy, 12

Va. App. 744, 755, 407 S.E.2d 681, 688 (1991).

     After Ms. Burton's statement to the police officers, they

restricted the movements of defendant and his wife to the first

floor.   The police themselves also stayed on the first floor.

They only ventured onto the second floor when defendant cut a

hole in the ceiling of his garage and entered the attic.      The

police have the authority to secure a premises and prevent

destruction of evidence when:
          (1) police officers have probable cause to
          believe evidence is on the premises;

             (2) delaying entry would create a
             substantial risk that evidence will be lost
             or destroyed or the critical nature of the
             circumstances prevents the use of any warrant
             procedure; and

             (3) the police must not be responsible for
             creating their own exigencies.


                                 - 5 -
Crosby v. Commonwealth, 6 Va. App. 193, 201, 367 S.E.2d 730, 735

(1988).   The circumstances of the instant matter are in line with

Crosby, and the police officers' actions were proper.

     To summarize, we hold that defendant gave Ms. Burton consent

to enter his home, independently of any police involvement.       Once

she reported that she had seen marijuana, the officers had the

power to secure the house and prevent the destruction of

evidence.   When defendant attempted to destroy his marijuana, he

was properly stopped and arrested.     It was not error for the

trial court to admit the marijuana thus seized into evidence.

Defendant's conviction is affirmed.
                                                          Affirmed.




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