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. 
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 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 
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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." 
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 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. 
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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.