Wood v. Commonwealth

484 S.E.2d 627, 24 Va. App. 654

Opinions

ANNUNZIATA, Judge.

Appellant, Calvin Arthur Wood, Jr., was convicted of four offenses involving the possession of a firearm, cocaine and marijuana. On appeal, he contends the trial court erred in denying his motion to suppress. We disagree and affirm his convictions.

I.

On the night in question, appellant’s wife appeared at the Louisa County Sheriffs Office, her face bleeding from an injury she attributed to appellant. Two deputies, Hicks and Gholson, and a state trooper, Stanley, responded to appellant’s residence to investigate. A few days earlier, appellant’s teenage stepson had been reported missing. When the officers responded to appellant’s home, they believed that appellant’s stepson remained missing.

Upon the officers’ arrival, appellant invited them into his house. Appellant’s two children, ages three and four, were asleep in the living room. Appellant and the officers did not discuss whether those children were the only other occupants of the house. The four men proceeded through the living room to the kitchen where, almost immediately thereafter, appellant was arrested. Hicks transported appellant to the sheriffs office; Gholson and Stanley remained to look after the children.

The sheriffs office contacted a social services representative, Solomon, who arrived at appellant’s house within thirty to forty minutes. Meanwhile, Gholson and Stanley remained in the kitchen, periodically checking on the children asleep in the adjacent living room. After Solomon left appellant’s home with the children, Gholson and Stanley looked through the remainder of the house, including the second floor, which they reached by opening a door located in a third room and ascending a flight of stairs.

Before entering appellant’s house, Gholson and Stanley had noticed a light shining through a second floor window. Both officers believed that appellant had been on the first floor when they arrived, because he answered the door soon after they knocked. Neither officer heard any noise coming from the second floor, but Stanley stated he noticed a foul smell coming from somewhere. Gholson testified that they went upstairs “[t]o secure the residence, make sure there was nobody else there.” Stanley likewise testified that he and Gholson “just wanted to check and make sure there was nobody else, no kids or anything.” Both Gholson and Stanley testified that they were specifically looking for appellant’s missing stepson. Both also testified they had not thought to check the rest of the house until they were preparing to leave.

Once upstairs, the officers observed in plain view some of the evidence used to support appellant’s convictions. At that time, the officers did not open any cabinets or containers; instead, they returned to the sheriffs office to obtain a search warrant. Back at the station, Gholson and Hicks were in the process of preparing an affidavit in support of a search warrant based on Gholson’s observations when they were informed that appellant had consented to a further search of his house. Based on appellant’s consent, Hicks returned to the house to oversee the search and seizure of additional evidence used to support appellant’s convictions.

The trial court found that “the intrusion of the officers in the 2nd floor of the [appellant’s] residence was justified as the officers were carrying out their duties as community caretakers.” Accordingly, it denied appellant’s motion to suppress.

II.

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, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (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), cert. denied, 479 U.S. 813, 107 S.Ct. 63, 93 L.Ed.2d 21 (1986). 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 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. We agree.³

[Qjuite 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 W. 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, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Cady involved the warrantless search of an automobile.⁴ First in Barrett and later 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.

Under the facts of this case, we 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, we note that in the context of a warrantless entry and search, little, if any, distinction exists in Virginia law between the circumstances governing the application of the community caretaker doctrine and those governing the application of the “emergency” excep tion 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). We have 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, 18 Va.App. at 778, 447 S.E.2d at 246.

Applying the community caretaker doctrine, we 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 neces sary. 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 States, — U.S.-,-, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (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-, 116 S.Ct. 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, we find that 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.⁵ 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 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 or the house unsecured. 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. And, the record is devoid of evidence that the officers’ entry of the second floor was a pretext for the investigation of criminal conduct.

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, appellant’s convictions are affirmed.

Affirmed.

Footnotes

1

. We note there is no dispute that the officers’ initial entry into appellant’s home was lawful.

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 Commonwealth’s contention that appellant’s appeal is barred on procedural grounds for failure to brief or argue the community caretaker doctrine fails to consider that appellant argues the police had no basis to enter the second floor of his home and, specifically, that searching for the missing child was not a sufficient basis for the entry. Appellant clearly argues the basis of the trial court’s decision, and we find no reason to bar his appeal on procedural grounds.

4

. The Cady Court discussed well-established privacy distinctions between automobiles and residences in affirming the reasonableness of the search in that case. 413 U.S. at 439-42, 93 S.Ct. at 2527-29. Such distinctions, however, have not precluded courts from evaluating warrantless entry and search of premises under the community caretaker function, see LaFave, supra, at 390 n. 3, and while we recognize the distinction between the search of an automobile and the search of a home, we find that 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, 93 S.Ct. at 2528-29. 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, 93 S.Ct. at 2529. 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.

5

. Appellant argues, and the Commonwealth agrees, that the officers' action in this case is not justifiable as a search incident to appellant’s arrest. Our decision should not be construed as an extension of that doctrine. See Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) (beyond spaces immediately adjoining place of arrest, officers may make a "protective sweep” of the premises upon reasonable suspicion that the area swept harbors an individual posing a threat to the officers).