                               COURT OF APPEALS OF VIRGINIA


Present: Judges McClanahan, Haley and Beales
Argued at Salem, Virginia


GUY ANTHONY BANKS, JR.
                                                             MEMORANDUM OPINION * BY
v.     Record No. 3059-08-3                               JUDGE ELIZABETH A. McCLANAHAN
                                                                    APRIL 26, 2011
COMMONWEALTH OF VIRGINIA


                UPON REMAND FROM THE SUPREME COURT OF VIRGINIA

                 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                              J. Leyburn Mosby, Jr., Judge

                 Keith Orgera, Assistant Public Defender, for appellant.

                 Alice T. Armstrong, Assistant Attorney General II (Kenneth T.
                 Cuccinelli, II, Attorney General, on briefs), for appellee.


       This case returns to us on remand from the Supreme Court of Virginia for consideration

of “whether the circuit court erred in holding that Banks’ state of undress presented an exigency

justifying the officers’ seizure of the jacket.” Banks v. Commonwealth, 280 Va. 612, 619, 701

S.E.2d 437, 441 (2010). Having considered that issue, we find the trial court erred in denying

Banks’ motion to suppress, and we reverse its judgment.

                                           I. BACKGROUND

       “‘In reviewing the denial of a motion to suppress based on the alleged violation of an

individual’s Fourth Amendment rights, we consider the facts in the light most favorable to the

Commonwealth.’” Lawson v. Commonwealth, 55 Va. App. 549, 552, 687 S.E.2d 94, 95 (2010)

(quoting Ward v. Commonwealth, 273 Va. 211, 218, 639 S.E.2d 269, 271 (2007)).



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        On November 15, Lynchburg Police Officers Mitchell and Clements arrested Banks in the

bedroom doorway inside the home where he was found. Banks was wearing shorts, a thin,

long-sleeved shirt, and no shoes. Officer Mitchell asked Banks “if he wanted to grab his shoes or a

jacket” because it was “a rather cold day outside.”1 Banks, handcuffed by that point, said “yes” at

which time they went back into the bedroom. 2 Banks then told Mitchell his shoes were in his

vehicle so Banks and Mitchell left the bedroom, exited the house, and retrieved the shoes from

Banks’ vehicle. Mitchell then placed Banks in the patrol car. Officer Clements stayed behind in the

bedroom and asked the female occupant of the bedroom if Banks had a coat there. 3 She pointed to

a jacket hanging on the top of a closet door approximately six feet from where Clements was

standing. Clements retrieved the jacket and, upon searching it, found a gun. The jacket, with the

gun in the pocket, was placed in the trunk of the police cruiser. Banks was charged with possession

of a firearm by a convicted felon. 4




        1
         Officer Clements testified it was forty-five degrees outside with twenty to twenty-five-
mile-per-hour winds.
        2
         Although at trial Banks stated he was wearing a “thermal” shirt and denied asking for a
jacket, we review the evidence in the light most favorable to the Commonwealth, Lawson, 55
Va. App. at 552, 687 S.E.2d at 95, which principle requires we “‘discard the evidence of the
accused in conflict with that of the Commonwealth, and regard as true all the credible evidence
favorable to the Commonwealth and all fair inferences that may be drawn therefrom.’” Kelly v.
Commonwealth, 41 Va. App. 250, 254, 584 S.E.2d 444, 446 (2003) (en banc) (quoting Watkins
v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)) (internal citations and
quotation marks omitted).
        3
         Clements testified he did not ask Banks about a jacket and didn’t know whether Banks
was asked by Mitchell about a jacket but decided to get a jacket for him because it was cold
outside.
        4
         Banks was charged with two counts of possession of a firearm but the trial court later
amended the indictment to merge the two counts. Other charges for attempted robbery, use of a
firearm in an attempted robbery, malicious wounding, and use of a firearm in a malicious
wounding were severed from the possession charges and are not before us in this appeal.

                                                -2-
        Banks moved to suppress the jacket claiming a violation of his Fourth Amendment rights

since the officers did not have a warrant to search the bedroom or seize the jacket. The trial court

denied the motion concluding that the officers’ need to obtain the jacket for Banks constituted

“exigent circumstances.” 5

        On appeal to this Court, we concluded in an unpublished decision that, viewing the evidence

in the light most favorable to the Commonwealth, the seizure of the jacket was lawful under the

Fourth Amendment as authorized by Banks’ consent. Banks v. Commonwealth, Record No.

3059-08-3, 2009 Va. App. LEXIS 507 (Va. Ct. App. Nov. 10, 2009).6 The Supreme Court reversed

our decision and remanded the case for consideration of “whether the circuit court erred in holding

that Banks’ state of undress presented an exigency justifying the officers’ seizure of the jacket.”

Banks, 280 Va. at 619, 701 S.E.2d at 441. 7


        5
          The trial court rejected the Commonwealth’s arguments that Banks lacked standing to
challenge the seizure, that the seizure was pursuant to a search incident to a lawful arrest, and
that the gun would have been inevitably discovered.
        6
         In reaching our decision we noted the decision in Whitehead v. Commonwealth, 278
Va. 105, 677 S.E.2d 265 (2009) (concluding this Court erred in applying “the right result for the
wrong reason” doctrine), would not prevent us from considering whether the seizure of the jacket
was lawful pursuant to Banks’ consent since both the Commonwealth and Banks made factual
arguments in the trial court regarding Banks’ consent and presented evidence to the trial court
pertaining to whether the jacket was retrieved pursuant to Banks’ request. As such, we observed
that no additional findings of fact were required to permit us to conclude the jacket was obtained
with Banks’ consent. Banks, 2009 Va. App. LEXIS 507, at *7-8 n.8; see Whitehead, 278 Va. at
115, 677 S.E.2d at 270.
        7
         After our decision in Banks, the Supreme Court of Virginia reconsidered the case law
on the “right result for the wrong reason” doctrine and held that failure to make the argument
before the trial court is not the proper focus. Rather, consideration of the facts in the record and
whether additional factual presentation is necessary is the proper focus. Perry v.
Commonwealth, 280 Va. 572, 580, 701 S.E.2d 431, 436 (2010). Furthermore, in reviewing our
decision in this case, the Supreme Court of Virginia crafted a new standard of review to
determine whether the “right result for the wrong reason” doctrine should be applied. The
Supreme Court held that while the “general rule on review is that the evidence is viewed in the
light most favorable to the prevailing party below,” “when considering whether the ‘right result
wrong reason’ doctrine should be applied, the standard of review is whether the record
demonstrates that all evidence necessary to the alternative ground for affirmance was before the
                                                 -3-
                                            II. ANALYSIS

        To prevail on appeal Banks bears the burden to “show that the trial court’s denial of his

suppression motion, when the evidence is considered in the light most favorable to the prosecution,

was reversible error.” Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464 (2003).

“The question whether the Fourth Amendment has been violated is always ‘a question of fact to be

determined from all the circumstances.’” Malbrough v. Commonwealth, 275 Va. 163, 168, 655

S.E.2d 1, 3 (2008) (quoting Ohio v. Robinette, 519 U.S. 33, 40 (1996)) (citation omitted). Although

we review the trial court’s application of the law de novo, Kyer v. Commonwealth, 45 Va. App.

473, 479, 612 S.E.2d 213, 216-17 (2005) (en banc), we defer to the trial court’s findings of fact

taking care ‘“both to review findings of historical fact only for clear error and to give due weight to

inferences drawn from those facts by resident judges and local law enforcement officers.’”

Malbrough, 275 Va. at 169, 655 S.E.2d at 3 (quoting Reittinger v. Commonwealth, 260 Va. 232,

236, 532 S.E.2d 25, 27 (2000)) (citation omitted); see also Ferguson v. Commonwealth, 52

Va. App. 324, 334, 663 S.E.2d 505, 510 (2008), aff’d, 278 Va. 118, 677 S.E.2d 45 (2009).

        Banks argues the trial court erred in denying his motion to suppress because the

Commonwealth failed to carry its burden in proving that exigent circumstances justified the

warrantless seizure of his jacket from the bedroom. 8 The Commonwealth contends there was

“no deprivation of his Fourth Amendment rights” because “Banks’ state of undress present[ed]



circuit court and, if that evidence was conflicting, how it resolved the dispute, or weighed or
credited contradicting testimony.” Banks, 280 Va. at 618, 701 S.E.2d at 440. Applying this
standard of review, the Supreme Court stated “the facts surrounding the seizure were in conflict
and that the circuit court neither resolved the dispute nor indicated how it weighed or credited the
contradicting testimony as to whether Banks asked for a jacket.” Id. The Supreme Court
concluded that this Court was “in no position to find that he consented to the seizure” and held
we erred in applying the “right result for the wrong reason” doctrine. Id. at 618, 618, 701 S.E.2d
at 440, 441.
        8
            Banks does not contest the authority of the police to search the jacket once seized.

                                                  -4-
an exigency” and “[t]he officers reasonably sought to provide Banks with appropriate clothing.”

In making this contention, the Commonwealth is advocating the creation of an exception, either

as a subset or extension of the emergency/community caretaker exceptions, or as a separate

“clothing exception,” allowing police to determine that an arrestee’s Fourth Amendment rights

should give way to his interests in being provided with what the police deem as appropriate

clothing. The exception would purportedly permit such determinations by police without regard

to which interests an arrestee would choose to protect since obtaining the arrestee’s consent

would eliminate the need for the exception. See Schneckloth v. Bustamonte, 412 U.S. 218, 222

(1973) (“a search authorized by consent is wholly valid”).

                        A. Emergency/Community Caretaker Exceptions

       “‘Searches and seizures inside a home without a warrant are presumptively unreasonable.

. . . The 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.’” Sharpe v.

Commonwealth, 44 Va. App. 448, 455, 605 S.E.2d 346, 349-50 (2004) (quoting Payton v. New

York, 445 U. S. 573, 586 (1980)). As the United States Supreme Court has recognized,

               one exigency obviating the requirement of a warrant is the need to
               assist persons who are seriously injured or threatened with such
               injury. The need to protect or preserve life or avoid serious injury
               is justification for what would be otherwise illegal absent an
               exigency or emergency. Accordingly, law enforcement officers
               may enter a home without a warrant to render emergency
               assistance to an injured occupant or to protect an occupant from
               imminent injury.

Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (internal quotations and citations omitted)

(finding the entrance reasonable since police observed fighting and an injured adult). Likewise,

this Court has held the “emergency doctrine” permits police to make a warrantless entry into a

home when “they reasonably believe that a person within is in need of immediate aid.”

Reynolds v. Commonwealth, 9 Va. App. 430, 437, 388 S.E.2d 659, 663 (1990) (internal citations
                                               -5-
and quotation marks omitted); see Mincey v. Arizona, 437 U.S. 385, 392 (1978). Such a

warrantless entry during an emergency is justified by the fact that “the preservation of human life

is paramount to the right of privacy protected by search and seizure laws and constitutional

guaranties.” Reynolds, 9 Va. App. at 437, 388 S.E.2d at 664 (internal quotation marks and

citation omitted). See also Kyer, 45 Va. App. at 480-81, 612 S.E.2d at 217. When the police fail

to obtain a warrant, the Commonwealth bears “a heavy burden to justify the warrantless entry”

based upon a purported exigency. Reynolds, 9 Va. App. at 436, 388 S.E.2d at 663.

       The United States Supreme Court has upheld warrantless searches of automobiles in the

exercise of “community caretaking functions” carried out by police during the inventory of

property taken into custody. See Cady v. Dombrowski, 413 U.S. 433 (1973) (trunk of car towed

from accident scene was searched pursuant to standard police procedure); South Dakota v.

Opperman, 428 U.S. 364 (1976) (after car impounded for parking violations police inventoried

contents pursuant to standard police procedure); Colorado v. Bertine, 479 U.S. 367 (1987)

(vehicle impounded after driver arrested for drunk driving searched by police according to

standard police procedure). As the Court has explained,

               [our] previous recognition of the distinction between motor
               vehicles and dwelling places leads us to conclude that the type of
               caretaking “search” conducted here of a vehicle that was neither in
               the custody nor on the premises of its owner, and that had been
               placed where it was by virtue of lawful police action, was not
               unreasonable solely because a warrant had not been obtained.

Cady, 413 U.S. at 447-48.

       Warrantless inventory searches of vehicles have also been upheld in Virginia. See, e.g.,

Reese v. Commonwealth, 220 Va. 1035, 265 S.E.2d 746 (1980); Williams v. Commonwealth, 42

Va. App. 723, 594 S.E.2d 305 (2004). Although the Supreme Court of Virginia has yet to rule

on whether the community caretaker doctrine applies in Virginia outside the context of vehicle



                                               -6-
inventory searches, 9 this Court has stated the community caretaker doctrine is not limited to

police contact with vehicles but also permits officers to conduct seizures of individuals in order

to render aid to someone in need or distress. Commonwealth v. Waters, 20 Va. App. 285, 291,

456 S.E.2d 527, 530-31 (1996). 10 Thus, in this context, the community caretaker doctrine, like

the emergency doctrine, is premised on the “commonsense rationale that ‘preservation of human

life is paramount to the right of privacy’ protected by the Fourth Amendment.” Kyer, 45

Va. App. at 480, 612 S.E.2d at 217 (quoting Reynolds, 9 Va. App. at 437, 388 S.E.2d at 664). 11

       Applying these principles, we conclude the officers’ desire “to provide Banks with

appropriate clothing” did not present an exigency justifying the warrantless seizure of his jacket

pursuant to the emergency/community caretaker exceptions. Banks was not threatened with

imminent harm, and there are no facts demonstrating Banks was “in need or distress” requiring

the officers to “render aid” within the meaning of the emergency/community caretaker doctrines

as they have been applied in Virginia. See Reynolds, 9 Va. App. at 437, 388 S.E.2d at 663;


       9
         Explaining that “neither Cady nor the two subsequent Supreme Court cases applying the
so-called ‘community caretaking functions’ doctrine involved investigative stops and ‘seizures’;
they involved the admissibility of incriminating evidence discovered during a standard police
procedure of inventorying property that had properly been taken into custody,” the Supreme
Court of Virginia held in the context of the stop of a vehicle “we need not decide whether the so-
called ‘community caretaking functions’ doctrine will be applied in Virginia” since the evidence
was insufficient to show the detained person required police assistance. Barrett v.
Commonwealth, 250 Va. 243, 246-48, 462 S.E.2d 109, 111-12 (1995).
       10
          Unlike the emergency exception, the community caretaker exception has not been
applied in Virginia to permit warrantless entries into a home.
       11
           We have stated when an exception is claimed under the emergency/community
caretaker doctrines, the claim “must be scrutinized to insure that it is not mere pretext for entries
and searches that otherwise fall under the requirement for a warrant.” Reynolds, 9 Va. App. at
438, 388 S.E.2d at 664 (internal quotation marks and citation omitted). The trial court found the
officers’ claim was not mere pretext for seizure of the jacket, and Banks does not contend
otherwise. However, we must ultimately determine whether “the circumstances, viewed
objectively, justify” Officer Clements’ entry into the bedroom to retrieve a jacket for Banks.
Stuart, 547 U.S. at 404 (emphasis in original and citations omitted).

                                                -7-
Waters, 20 Va. App. at 291, 456 S.E.2d at 530-31. Once Banks was accompanied outside to

retrieve his shoes, Officer Clements was not justified in remaining in the bedroom to seize

Banks’ jacket without his request or consent. 12 In short, there was no issue regarding

“preservation of human life.” Kyer, 45 Va. App. at 480, 612 S.E.2d at 217 (internal quotation

marks and citation omitted).

                                 B. Clothing Exigency Exception

       Neither this Court nor the Supreme Court of Virginia has had occasion to consider

whether the need to obtain clothing or shoes for an arrestee presents an exigency allowing police

to enter the arrestee’s home, or seize items within, absent a warrant. In United States v. Kinney,

638 F.2d 941, 945 (6th Cir.), cert. denied, 452 U.S. 918 (1981), the Sixth Circuit Court of

Appeals held that an FBI agent’s warrantless entry into the defendant’s apartment after arresting

him outside was not justified by his lack of complete dress or shoes since “[t]he defendant did

not request permission to secure additional clothing and did not consent to an entry of his home.”

Likewise, in United States v. Whitten, 706 F.2d 1000 (9th Cir. 1983), the Ninth Circuit Court of

Appeals reversed a district court’s order denying the defendant’s motion to suppress a gun

discovered by police when they made a warrantless entry into his hotel room to retrieve clothing

after his arrest. The court noted the defendant did not ask to be allowed to dress until after police

took him into the room without his consent. As such, “absent such a ‘specific request or

consent,’ the officers’ entry was unlawful.” Id. at 1016 (quoting United States v. Anthon, 648

F.2d 669, 675 (10th Cir. 1981) (arrest of suspect, wearing a bathing suit, in hotel hallway did not


       12
          Since the trial court did not base its ruling on Banks’ consent, the general standard of
review requiring us to “discard the evidence of the accused in conflict with that of the
Commonwealth,” Kelly, 41 Va. App. at 254, 584 S.E.2d at 446 (internal quotation marks and
citation omitted), does not apply to the issue of Banks’ consent. Banks, 280 Va. at 618, 701
S.E.2d at 440. Rather, because the trial court did not expressly resolve the dispute regarding
Banks’ consent, we are precluded from affirming its decision on this alternative ground. Id.

                                                -8-
provide exigent circumstances allowing police to return arrestee to his room), cert. denied, 454

U.S. 1164 (1982)).

        On the other hand, the Fourth Circuit Court of Appeals held that an “arrestee’s partially

clothed status may constitute an exigency justifying the officer’s temporary reentry into the

arrestee’s home to retrieve clothes reasonably calculated to lessen the risk of injury to the

defendant.” Gwinn v. United States, 219 F.3d 326, 333 (4th Cir. 2000). In Gwinn, an officer

re-entered an arrestee’s mobile home on the officer’s own initiative to obtain boots and a shirt for

the arrestee, who was already handcuffed and seated in a police cruiser. When the officer located

the boots, he found a gun inside one of them, which the arrestee later moved to suppress. Drawing

some support from the community caretaker rationale underlying the United States Supreme

Court’s decision in Cady, 13 the court found the officer’s actions lawful under a “clothing exigency

exception.” Id. The court cautioned, though, to invoke the clothing exception, “the government

bears the burden of demonstrating particularly that the arrestee had a substantial need for the

clothing and the government’s response was limited strictly to meeting that need.” Id. at 335.

Noting “that an essential premise for our application of the exception here is the fact that nothing in

the record suggests that [the officer’s] reason for the reentry was pretextual,” id., the court found

that “[w]herever Gwinn might walk while in these troopers’ custody, he would face the substantial

hazards of sustaining cuts or other injuries to his feet, as well as the increasing chill during the

evening hours of an early May day.” Id. at 333. The court concluded “[t]he interest served by

requiring [Gwinn] to put on shoes and a shirt was more than ‘the desire of law enforcement officers




        13
           The court compared the officers’ exercise of “custody and control over [the arrestee’s]
trailer” to the officers’ custody and control over the vehicle in Cady.

                                                   -9-
to complete the arrestee’s wardrobe.’” Id. (quoting United States v. Butler, 980 F.2d 619, 621-22

(10th Cir. 1992)). 14

        Other courts have held that police may accompany an arrestee into the home or a room to

obtain clothing or shoes such that evidence discovered in plain view therein may be lawfully

seized. 15 For example, in United States v. Di Stefano, 555 F.2d 1094 (2d Cir. 1977), a female

officer accompanied the arrestee, wearing a nightgown and robe, into her bedroom to dress.

When the arrestee opened her closet door, the officer saw evidence, in plain view, connecting the

arrestee to a robbery. Rejecting her contention that the officer was not justified in being present

in the bedroom, the court explained that “[h]aving permitted [the arrestee] to retire to her

bedroom to dress, [the officer] was clearly justified in accompanying her to maintain a ‘watchful

eye’ on her and to assure that she did not destroy evidence or procure a weapon.” Id. at 1101.

Therefore, the seizure of the evidence was lawful “[s]ince the evidence shows that the officer’s

entry into the bedroom was solely for the purpose of maintaining control over [the arrestee]

while she dressed.” Id. 16


        14
           See also United States v. Clay, 408 F.3d 214 (5th Cir. 2005) (where arrestee told
officer his shoes were in his bedroom, officer’s return to bedroom justified by need to procure
footwear); United States v. Wilson, 306 F.3d 231 (5th Cir. 2002), overruled on other grounds by
United States v. Gould, 364 F.3d 578, 586 (5th Cir. 2004) (en banc) (risks associated with
transporting the arrestee to police headquarters wearing only underwear justified the officer’s
warrantless entry to obtain clothing).
        15
            Indeed “it is not ‘unreasonable’ under the Fourth Amendment for a police officer, as a
matter of routine, to monitor the movements of an arrested person, as his judgment dictates,
following the arrest. The officer’s need to ensure his own safety -- as well as the integrity of the
arrest -- is compelling.” Washington v. Chrisman, 455 U.S. 1 (1982).
        16
           See also Butler, 980 F.2d at 621-22 (where police accompanied an arrestee into his
home to obtain shoes because the ground outside was strewn with broken glass, beer cans, and
other hazards, court held that the entry was justified since the hazards on the ground posed a
significant threat to the arrestee’s safety); State v. Jenkins, 782 N.W.2d 211 (Minn. 2010)
(officers accompanied arrestee to room after he asked to be allowed to retrieve shoes and coat);
State v. Weakley, 627 S.E.2d 315 (N.C. App. 2006) (officer accompanied arrestee into home
while she dressed).
                                                  - 10 -
        We do not believe the facts and circumstances of this case justify application of a

“clothing exigency exception” to the warrant requirement. Banks was not shirtless as the

arrestee was in Gwinn, 219 F.3d 326, nor clad in his underwear as the arrestee was in Wilson,

306 F.3d 231. In fact, he was not in a “state of undress” or “partially clothed.” When Banks was

arrested, he was fully clothed though he was not wearing shoes. 17 Furthermore, the officers did

not accompany Banks to retrieve his jacket in the scope of monitoring his movements. See, e.g.,

Washington v. Chrisman, 455 U.S. 1 (1982); Di Stefano, 555 F.2d 1094; Butler, 980 F.2d at

621-22. Although the trial court found the officers seized the jacket to protect Banks, it did not

find that there was a “substantial need” for additional clothing. See Gwinn, 219 F.3d at 335.

Nor did it find there was any need to protect Banks from a “substantial risk of injury.” Id. at

333. And there are no facts in the record to support such conclusions. 18 In light of this evidence,

we find it unnecessary to decide whether a “clothing exigency exception” should be created in

Virginia. See Barrett v. Commonwealth, 250 Va. 243, 248, 462 S.E.2d 109, 112 (1995)

(Supreme Court finding it unnecessary to decide whether community caretaker doctrine will be

applied in Virginia outside the context of the inventorying of vehicles where evidence

insufficient to show need for police assistance).




       17
          Officer Mitchell may well have been justified in accompanying Banks to obtain his
shoes, see Chrisman, 455 U.S. at 7, but the issue before us is whether Banks’ state of undress
constituted an exigency permitting the seizure of his jacket.
       18
          The fact that it was forty-five degrees outside and windy does not, alone, establish that
Banks, who was fully clothed, had a “substantial need” for additional clothing to protect him
during the transport to the jail via the patrol car.

                                               - 11 -
       Therefore, we conclude the trial court erred in holding the officers’ need to obtain a

jacket for Banks constituted an exigency justifying the warrantless seizure. 19 We reverse the

judgment of the trial court, vacate the conviction, and remand for further proceedings if the

Commonwealth be so advised.

                                                                                    Reversed.




       19
           We do not suggest that it is unreasonable for police to obtain additional clothing or
outerwear for an arrestee if the arrestee makes a request or consents to the seizure. Nor should
our holding be interpreted to imply that an arrestee’s state of undress could never constitute an
exigency obviating the requirement of a warrant. Rather, we find the facts and circumstances of
this case did not present an exigency justifying a seizure that would otherwise be illegal.

                                              - 12 -
