                      COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Lemons and Senior Judge Cole
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                          MEMORANDUM OPINION * BY
v.   Record No. 0318-99-2                  JUDGE LARRY G. ELDER
                                              AUGUST 3, 1999
JACKY RAY LANE


              FROM THE CIRCUIT COURT OF HANOVER COUNTY
                     Richard H. C. Taylor, Judge

          Marla Graff Decker, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          briefs), for appellant.

          Bruce P. Ganey (Ganey & Laibstain, P.C., on
          brief), for appellee.


     Jacky Ray Lane (defendant) stands indicted for possession

of cocaine.   The Commonwealth appeals a pretrial ruling granting

defendant's motion to suppress all evidence seized pursuant to a

search warrant on the ground that the seizure resulted from an

earlier illegal entry into defendant's home, which occurred when

police responded to a 911 call involving defendant's reported

drug overdose.   On appeal, the Commonwealth contends the trial

court erroneously suppressed the evidence because the deputies'

warrantless entry of defendant's house was lawful and, even if

it was not, the evidence subsequently discovered resulted from a


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
valid search warrant obtained independently of any illegal

entry.    For the reasons that follow, we reverse the trial

court's granting of defendant's suppression motion and remand to

the trial court for further proceedings consistent with this

opinion. 1

     At a hearing on a defendant's motion to suppress, the

Commonwealth has the burden of proving that a warrantless search

or seizure did not violate the defendant's Fourth Amendment

rights.      See Simmons v. Commonwealth, 238 Va. 200, 204, 380

S.E.2d 656, 659 (1989).     On appeal, we view the evidence in the

light most favorable to the prevailing party, here the

defendant, granting to it all reasonable inferences fairly

deducible therefrom.      See Commonwealth v. Grimstead, 12 Va. App.

1066, 1067, 407 S.E.2d 47, 48 (1991).     "[W]e 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."      McGee v. Commonwealth, 25 Va.

App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing


     1
       After granting the motion to suppress, the trial court
dismissed the indictment. However, it lacked authority to
dismiss at that time. See Code § 19.2-398 (permitting
Commonwealth to petition this Court for appeal of "[a]n order of
a circuit court prohibiting the use of certain evidence at trial
on the grounds such evidence was obtained in violation of
[certain constitutional] provisions prohibiting illegal searches
and seizures and protecting rights against self-incrimination,
provided the Commonwealth certifies the evidence is essential to
the prosecution").

                                  - 2 -
Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657,

1663, 134 L. Ed. 2d 911 (1996)).    However, we review de novo the

trial court's application of defined legal standards such as

probable cause and reasonable suspicion to the particular facts

of the case.   See Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663.

     The Fourth Amendment protects people from unreasonable

searches and seizures.    U.S. Const. amend. IV.   "[T]he Fourth

Amendment has drawn a firm line at the entrance to the house.

Absent exigent circumstances, that threshold may not reasonably

be crossed without a warrant."     See Payton v. New York, 445 U.S.

573, 590, 100 S. Ct. 1371, 1382, 63 L. Ed. 2d 639 (1980).

     The "exclusionary rule" prevents evidence obtained in

violation of one's Fourth Amendment rights from being admitted

into evidence against him in a criminal prosecution.     See

Commonwealth v. Ealy, 12 Va. App. 744, 750, 407 S.E.2d 681, 685

(1991).   The purpose of the exclusionary rule is "'to deter

police misconduct.'"     Johnson v. Commonwealth, 21 Va. App. 172,

175, 462 S.E.2d 907, 909 (1995) (citation omitted).    Therefore,

the rule does not apply unless the evidence sought to be

excluded was "'discovered as a result of a warrantless crossing

[into the place searched].'"     Id. at 752, 407 S.E.2d at 686

(quoting Reynolds v. Commonwealth, 9 Va. App. 430, 435-36, 388

S.E.2d 659, 663 (1990)).

     Generally, the exclusionary rule bars the admission of

"evidence seized and information acquired during an unlawful

                                 - 3 -
search or seizure [and] also . . . derivative evidence

discovered because of the unlawful act."   Warlick v.

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

determining whether the evidence is derivative and therefore

barred as "fruit of the poisonous tree," the question is

"'whether[,] granting establishment of the primary illegality,

the evidence to which instant objection is made has been come at

by exploitation of that illegality or instead by means

sufficiently distinguishable to be purged of the primary

taint.'"   Wong Sun v. United States, 371 U.S. 471, 488, 83

S. Ct. 407, 417, 9 L. Ed. 2d 441 (1963) (citation omitted).

Evidence is obtained by means "sufficiently distinguishable" to

be admissible despite illegality if it is "evidence attributed

to an independent source" or "evidence where the connection has

become so attenuated as to dissipate the taint."   Warlick, 215

Va. at 266, 208 S.E.2d at 748.

           [These] limitations share the same rationale
           and are commonly applied together. For
           example, a search warrant . . . obtained
           subsequent to an unlawful search may be an
           independent source if such warrant . . . is
           not obtained by exploitation of the unlawful
           search or is so attenuated as to dissipate
           the taint of the unlawful search.

Ealy, 12 Va. App. at 755, 407 S.E.2d at 688.   Where the illegal

activity of the police did not lead to discovery of evidence a

party seeks to exclude, the exclusion of that evidence does not

meet the purpose of the exclusionary rule, which is to deter


                                 - 4 -
future unlawful police conduct.     See Johnson, 21 Va. App. at

175, 462 S.E.2d at 909.

     Assuming without deciding that the deputies' entry of

defendant's home after defendant had left the house by ambulance

and prior to issuance of the search warrant violated the Fourth

Amendment, no legally significant nexus exists between the

initial warrantless entry and the subsequent entry pursuant to

the valid search warrant. 2   The deputies conducted no formal

search at the time of the first entry, and the entry yielded no

tangible evidence used to obtain the warrant.    Although

defendant's girlfriend, Erica Woodall, told the deputies while

inside the residence with them that she and defendant had used

cocaine in the residence earlier in the day, information which

was included in the affidavit supporting the search warrant, no

evidence exists that the deputies' entry or Woodall's presence

in the home had any causal connection to her giving the deputies

this information.

     Any nexus was temporal only.    While still outside the

residence, Woodall confirmed to the deputies that defendant had

been using cocaine that day.    While still outside, the deputies

told Woodall she could not accompany defendant to the hospital

and made clear their intention to question her about the

circumstances surrounding defendant's purported cocaine


     2
       Defendant posed no separate challenge to the validity of
the warrant.

                                - 5 -
overdose.   Finally, the record contains no indication that the

location of the questioning had any impact on the information

Woodall provided.   The questioning of Woodall inside the house

did not amount to an exploitation of the unlawful entry.

Therefore, excluding evidence found pursuant to the search

warrant in the absence of evidence of a nexus between the

alleged illegal entry and issuance of the warrant would not

achieve the purpose of deterring future police misconduct.

Accordingly, the connection between the initial entry and

Woodall's statements while inside was sufficiently "attenuated

as to dissipate the taint" and, in essence, resulted from an

independent source. 3




     3
       We reject defendant's contention that Rule 5A:18 prevents
the Commonwealth from raising this argument on appeal. Under
that rule, "[n]o ruling of the trial court . . . will be
considered as a basis for reversal unless the objection was
stated together with the grounds therefor at the time of the
ruling, except for good cause shown or to enable the Court of
Appeals to attain the ends of justice." However, as long as the
issue was properly preserved, an appellate court shall decide
the issue according to controlling legal principles. See, e.g.,
Lash v. County of Henrico, 14 Va. App. 926, 929, 421 S.E.2d 851,
853 (1992) (en banc).
     Here, the Commonwealth argued to the trial court that the
evidence supporting issuance of the warrant came from the 911
call and the statements of Woodall rather than from any
information gained from their entry into defendant's residence
and that the officers obtained the warrant before conducting the
search which yielded the cocaine. Therefore, the Commonwealth's
argument at trial preserved for appeal its argument that the
cocaine was discovered pursuant to an independent source and
that any taint resulting from the entry dissipated prior to
discovery of the cocaine.

                               - 6 -
     For these reasons, we hold that the cocaine defendant was

charged with possessing was not seized in violation of the

Fourth Amendment.   Therefore, we reverse the ruling of the trial

court and remand for a reinstatement of the charge and further

proceedings consistent with this opinion.

                                         Reversed and remanded.




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