COURT OF APPEALS OF VIRGINIA Present: Chief Judge Fitzpatrick, Judges Benton, Elder, Frank, Humphreys, Clements, Felton, Kelsey and McClanahan Argued at Richmond, Virginia
JOSHUA DAVIS KYER OPINION BY v. Record No. 2200-03-2 J UDGE D. ARTHUR KELSEY MAY 3, 2005 COMMONWEALTH OF VIRGINIA
UPON REHEARING EN BANC
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Michael C. Allen, Judge James R. Cooke, Jr., for appellant. John H. McLees, Senior Assist ant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Amicus Curiae : Virginia Association of Criminal Defense Lawyers (Steven D. Benjamin; Betty Layne DesPortes, on brief), for appellant.
Joshua Davis Kyer challenges on appeal hi s burglary and larceny convictions, claiming police unlawfully entered his mother’s apartm ent where he lived and obtained incriminating evidence in violation of the Four th Amendment. We agree with Kyer that no warrant exception justified the police entry into the apartment. Bu t we also agree with the trial court that, once inside, the police searched the apartment only afte r receiving permission from Kyer’s mother to do so. This consent, the trial court correctly he ld, was “sufficiently an act of free will to purge the primary taint.” Wong Sun v. United States , 371 U.S. 471, 486 (1963).
I. “On appeal from a denial of a suppression motion, we must review the evidence in the light most favorable to the Comm onwealth, giving it the benefit of any reasonable inferences.” Slayton v. Commonwealth , 41 Va. App. 101, 103, 582 S.E.2d 448, 449 (2003).- 2 - At about 2:00 a.m. on August 26, 2002, Offi cer B.E. Davis and De tective Brent Story responded to a burglar alarm at the Southside Speedway. They saw two suspects running from the scene. They caught one, but the other got aw ay. With a tip from th e detained suspect, the officers’ investigation led them to the Kyer apartment. The officers arrived at the apartment at a pproximately 4:00 a.m. The front door of the apartment was open wide enough for an individu al to “walk through it without touching the door.” There were no lights on. In this particul ar area, Detective Story observed, “it was not uncommon for this situation to occur.” “Every time it does,” he testified, “we make entry to make sure everything inside is okay.” They knocked on the door several times, waited a couple of minutes, and then went inside with weapons drawn and flashlights on. Fearing someone had “forced entry or broken into the home,” the offi cers conducted a two to three minute “cursory” protective sweep looking fo r any possible intruders. After completing the protective sweep, Officer Davis awoke Kyer’s mother, who was still asleep in her bedroom. Davis identified hims elf, inquired about her well-being, and asked if anyone else was “supposed to be in the house.” She told him she lived there alone with her two sons. When asked if “she was okay,” she replie d “she was fine.” During this conversation, Detective Story waited in the livi ng room. Officer Davis left her bedroom to permit her to “get herself together.” He went back into the livi ng room and waited with Detective Story. Kyer’s mother came out and then “excused herself to go back into her bedroom” before again reappearing to speak with the offi cers about ten minutes later. By this time, Kyer’s brother had joined the officers in the living room after be ing awoken by them. No one else was in the apartment. Detective Story sat down in a chair across fr om Kyer’s mother and explained “what was going on and why [they] had been there originally and also explained to her why [they] came in- 3 - in the first place so she would understand that.” She told the officers “everything was okay” and that she had been asleep. The officers also ad vised her about the Southside Speedway incident and the suggestion that her son may have been in volved. She said she thought he was home all night and was still there. After she had been briefed on the situation, Officer Davis then asked Kyer’s mother for permission to search for “anything that was stolen from the Southside Speedway.” She consented to the search. In the loft where Kyer normally slept, Officer Davis found several items stolen during the burglary of the Southside Speedway. Kyer was charged with three counts of statutory burglary and three counts of petit larceny. Kyer moved to suppress the inculpat ory evidence found in his bedroom, arguing that the officers’ initial entry into the apartment was unlawful. That warrantless entry, Kyer argued, nullified the subsequent consent to search give n by his mother. The trial court rejected both arguments. The initial entry, the court held, fell within the “community caretaker doctrine and/or exigent circumstances” exception to the warrant requirement. The court found the officers’ subjective intent in ente ring the apartment was motivated by their good faith desire to ensure an intruder had not come through the opened front door. Finding the officers’ testimony credible, the court found they were not “acting under a pret ext” to gain entry in to the apartment to continue their investigation of the Southside Speedway burglary. The trial court also held that, even if the initial entry fell outside the community caretaker or emergency exceptions, Kyer’s mother voluntarily consented to the search and “the totality of the circumstances are not sufficient to have vitiated her consent.” “So, on that ground, irrespective of what d ecision the Court might reach on the que stion of exigent circumstances or exercising community caretaker fu nction, the consent was valid.”- 4 - Following the trial court’s ruling on the s uppression motion, Kyer stipulated that the evidence was sufficient to prove his guilt on all ch arges. Upon being convicted, Kyer appealed to us challenging the trial court’s denial of hi s suppression motion. A panel of our Court held the community caretaker doctrine authorized the init ial entry into the apartment, thereby mooting any need to examine the legal efficacy of the later consent to search. Kyer v. Commonwealth , 43 Va. App. 603, 601 S.E.2d 6 (2004). Having reconsidered the matter en banc , we hold the initial entry cannot be justified under the emergency or community caretaker doct rines and thus the consent issue must be decided. And, on that point, we agree with the trial court that the cons ent was not nullified by the earlier unlawful entry.
II. “Though the ultimate question whether the officers violated the Fourth Amendment triggers de novo scrutiny, we defer to the trial court’s fi ndings of ‘historical fact’ and give ‘due weight to the inferences drawn from those facts by resident judges and local law enforcement officers.’” Slayton , 41 Va. App. at 105, 582 S.E.2d at 449 (quoting Barkley v. Commonwealth , 39 Va. App. 682, 689-90, 576 S.E.2d 234, 237-38 (2003)). Thus, we must give “deference to the factual findings of the trial cour t” and “independently determine” whether those findings satisfy the requirements of the Fourth Amendment. Whitfield v. Commonwealth , 265 Va. 358, 361, 576 S.E.2d 463, 464 (2003). To prevail on appeal, “the defendant must show that the trial court’s denial of his suppression motion, when the evidence is consid ered in the light most favorable to the prosecution, was reversible error.” Id. In other words, on appeal, the “burden to establish that the denial of the motion to suppress constituted re versible error rests with the defendant.” King v. Commonwealth , 39 Va. App. 306, 308, 572 S.E.2d 518, 519 (2002) (citation omitted).- 5 - A. T HE I NITIAL E NTRY Among the many interests served by the Fourth Amendment, the privacy interest in one’s home has few equals. “At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Kyllo v. United States , 533 U.S. 27, 31 (2001) (citation and intern al quotation marks omitted). “It is axiomatic that the ‘physi cal entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’” Welsh v. Wisconsin , 466 U.S. 740, 748 (1984) (citation omitted). But even on this topic the Fourth Amen dment’s text endorses no absolutes. It instead condemns only “unreasonable” searches and seizures. One concession to reasonableness, the emerge ncy exception, recognizes the “right of the police to enter and investigate” when someone ’s health or physical safety is genuinely threatened. Reynolds v. Commonwealth , 9 Va. App. 430, 437, 388 S.E.2d 659, 664 (1990) (citation omitted); see also Mincey v. Arizona , 437 U.S. 385 (1978). It rests on the commonsense rationale that “preservation of human life is paramount to the right of privacy” protected by the Fourth Amendment. Reynolds , 9 Va. App. at 437, 388 S.E.2d at 664 (citation omitted). This concern parallels one of the appl ications of the commun ity caretaker exception, which recognizes that “police 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.’” Id. at 436, 388 S.E.2d at 663. 1

1 Under proper circumstances, both doctrines apply not only to the protection of human life or to avoid serious injury, but also to the protection of prope rty interests. See , e.g. , Michigan v. Tyler , 436 U.S. 499, 509 (1978) (concluding the n eed to protect property may justify a warrantless entry of premises); see also United States v. Johnson , 9 F.3d 506, 510 (6th Cir. 1993) (finding warrantless entry into house reasonable to “prevent the loss or destruction of the owner’s property” where kitchen window wa s broken and neighbor reported burglary in progress); United States v. Dart , 747 F.2d 263, 267 (4th Cir. 1984) (upholding initial warrantless entry of warehouse where locks sawed off and doors forced open).- 6 - In this case, however, we need not engage in any extended analysis of the emergency or community caretaker exceptions. Nor need we elaborate on their various formulations. We believe the facts would not justify an objectivel y reasonable officer to think either exception applied. 2 Stripped of its immate rial aspects, the fact pattern in this case includes only one arguably suspicious circumstance: an open door on an August night. There were no signs of forced entry

⎯ such as pry marks, mangled locks, broken hinges, or disfigured door jams. 3 No one called out for help. No sounds or observations suggested panic or danger within the apartment. There were no reports from neighbors about any unique medical concerns or other vulnerabilities of the apartment’s occupants. Nor did any of Kyer’s neighbors report any suspicious circumstan ces suggesting foul play. Cf. Hill v. Commonwealth , 18 Va. App. 1, 4, 441 S.E.2d 50, 51 (1994) (finding exig ent circumstances existed when a neighbor reported that the homeowner “had been out of town for two days” prior to the police discovery of an open front door, leading the neighbor to fear “the house had been burglarized”). The mere discovery of an “open door” of a residence

⎯ absent some other reason for

concern
⎯ “is not, in and of itself , a circumstance that could give rise to a reasonable belief that entry is necessary to prevent harm to pe rsons or property.” State v. Christenson , 45 P.3d 511, 513 (Or. Ct. App. 2002) (emphasis added). “It is simply too common an event to create a concern of harm in the absence of other signs of trouble, such as evidence of a forced entry or a

2 We acknowledge, as the trial court found, that the officers did not act “under a pretext” and truly believed the circumstances justified a wa rrantless entry. As a gene ral rule, however, an “officer’s state of mind (except for the facts that he knows) is irrelevant” to the Fourth Amendment inquiry. Devenpeck v. Alford , 125 S. Ct. 588, 593 (2004); Slayton , 41 Va. App. at 109, 582 S.E.2d at 451.

3 The Commonwealth also conceded at trial that, under the facts of this case, neither officer could reasonably assume Kyer returned ho me to commit “a crime in his own residence.” As the prosecutor put it: “I don’t think that’s the assumption th at they made. . . . I think- 7 - medical emergency; here, there were no such indications.” Id. 4 In short, when the “only evidence of an emergency was a door left open late on a summer night,” we agree with other courts that “regardle ss of what the officers may subjectiv ely have thought, a reasonable person would not believe an emergenc y existed.” State v. Swenson , 799 P.2d 1188, 1190 (Wash. Ct. App. 1990); see also State v. Ryon , 108 P.3d 1032, 1047 (N.M. 2005) (noting that, under the emergency assistance doctrine, an “open door ought not be viewed as a general invitation to enter”). The police had no legal right, therefore, to enter the Kyer apartment uninvited. The trial court erred in concluding otherwise.

B. T HE C ONSENT T O S EARCH As a general rule, “a search authorized by consent is wholly valid.” Schneckloth v.
Bustamonte , 412 U.S. 218, 222 (1973). Consent loses its validity only if it is involuntary, Ohio v. Robinette , 519 U.S. 33, 40 (1996), or the product of a manipulative “exploitation” by the police of an earlier unconstitutional search or seizure. Wong Sun , 371 U.S. at 488; Warlick v. Commonwealth , 215 Va. 263, 266, 208 S.E.2d 746, 748 (1974). Consent following an unconstituti onal act, however, can still be valid if it is “sufficiently an act of free will to purge the primary taint.” Brown v. Illinois , 422 U.S. 590, 597 (1975) (citing Wong Sun , 371 U.S. at 486). This attenuation pr inciple should not be confused with a
certainly they’re not looking at it as Mr. Kyer br oke into his own residen ce, but that some other person or some other harm has befall en whoever is remaining inside.”

4 The tenuousness of the open door inference in Christenson disqualified it from satisfying a statutory “community caretaking” exception to the wa rrant requirement, Christenson , 45 P.3d at 512-14, as well as an analogous em ergency exception recognized by the Oregon constitution, id. at 514-15. Even so, the Fourth Amendment relevance of Christenson (cf. post at 18-20) appears at the heart of its analysis: “We have held that an open front door does not justify entry into a house under the emergency aid doctrin e or the community caret aking exceptions to the warrant requirement of the Fourth Amendment to the United States Constitution under more suspicious circumstances than t hose that existed here.” Id. at 513 (citing State v. Bramson , 765 P.2d 824 (Or. Ct. App. 1988); State v. Apodaca , 735 P.2d 1264 (Or. Ct. App. 1987)).- 8 - mere “but for” standard of causation

⎯ which, if used for this purpose, would suppress evidence “simply because it would not have come to light but for the illegal actions of the police.” Wong
Sun , 371 U.S. at 488. Instead, “a finding with respect to attenuation . . . can only be made after consideration of all the circumstances of the case.” United States v. Wellins , 654 F.2d 550, 554 (9th Cir. 1981). This necessarily requires a “careful si fting of the unique facts and circumstances of each case.” Schneckloth , 412 U.S. at 233. There being no fi xed formula, courts consider the amount of time between the ille gal action and the acquisition of the evidence, the presence of intervening circumstances (like consent), a nd the purpose and flagrancy of the official misconduct. United States v. Seidman , 156 F.3d 542, 548 (4th Cir. 1998). Consistent with these pr inciples, voluntary consent

⎯ when sufficiently an act of free will to dissipate the taint

⎯ can provide an independent basis for admitting evidence despite an earlier unlawful entry by police. See , e.g. , Seidman , 156 F.3d at 549 n.10 (“We see no reason why [consent] could not also se ver the connection between an unl awful act and the acquisition of additional evidence. Indeed, voluntary consent is the quintessential act of free will.”); United States v. Dickson , 64 F.3d 409, 410-11 (8th Cir. 1995) (hol ding that defendant’s voluntary consent to search his apartment dissipated taint of prior illegal search); United States v. Valencia , 913 F.2d 378, 382 (7th Cir. 1990) (“Even assuming th e initial entry was illegal, we agree with the district court that that entry did not taint Va lencia’s subsequent cons ent.”); United States v. Sheppard , 901 F.2d 1230, 1234 (5th Cir. 1990) (holding that defendant’s voluntary consent to search his car dissipated taint of officer’s illegal entry); State v. Owen , 453 So. 2d 1202, 1207 (La. 1984) (holding that consent was valid despite “close temporal proximity between the illegal entry and Evans’ consent” because Evans had “knowledge of the purpose of the entry and the- 9 - manner in which it was made” and thus the “offi cial misconduct had an insignificant effect on the subsequent consent”). 5 On the other hand, the purgation of free will may not suffice in all cases of consent. It may be insufficient, for example, when the evidence has already been discovered before the consent during the prior illegal search. See , e.g. , Wood v. Commonwealth , 27 Va. App. 21, 30-32, 497 S.E.2d 484, 488-89 (1998); Commonwealth v. Ealy , 12 Va. App. 744, 757-58, 407 S.E.2d 681, 689-90 (1991). It may be equally insufficient if given after the consenter has been illegally detained, Davis v. Commonwealth , 37 Va. App. 421, 433-35, 559 S.E.2d 374, 379-80 (2002), or after the police make an illegal entry for the “very purpose” of obtaining consent, Walls v. Commonwealth , 2 Va. App. 639, 655, 347 S.E.2d 175, 184 (1986). Absent such exploitive circumstances, however, a consensual en counter following an “illegal entry” can still be “sufficiently independent of the unlawful inva sion to purge any taint arising from the initial entry.” Seidman , 156 F.3d at 547. In this case, Kyer does not contend on app eal that his mother’s consent was involuntary. He argues only that, even if her “consent was voluntary,” it still was not “sufficiently an act of free will to purge the primary taint” of the unlawfu l entry. We disagree. Before she consented to the search, Kyer’s mother had been fully brie fed by the police about “what was going on” and why they entered her apartment in the first place. The conversation took place in her living room, after she had about ten minutes to compose he rself. At no time prior to the consent did the police recover any incriminating evidence. Nor di d they in any way imply she was the subject of

5 For similar reasons, a voluntary confession can be an act of free will sufficient to purge the taint of an earlier illegal arrest. See New York v. Harris , 495 U.S. 14, 21 ( 1990). Voluntary statements made after an unlawful roadblock likewise need not be suppressed. Burns v. Commonwealth , 261 Va. 307, 324 n.11, 541 S.E.2d 872, 884 n.11 (2001). So, too, an illegal entry into a home does not nega te the lawfulness of the later search if it di d not rely on- 10 - a criminal investigation. They did not detain he r, place her in custody, thr eaten her with arrest, or restrict her freedom of movement in any way. In these respects, our case parallels the situation addressed in Valencia , 913 F.2d at 382, where the United States Court of Appeals for the Seventh Circuit obser ved that the police did not exploit the initial entry. The police found no evidence as a result of that entry, and discovere d no information that they used (or could use) to influence Vale ncia to consent to a search. Valencia points to the allegedly coercive effect of the officers’ mere presence in his apartment. However, as we have seen, the district court found Valencia’s c onsent to be free and voluntary. Implicit in this finding is the conc lusion that the officers’ presence did not coerce Valencia’s consent. Indeed, the district court explicitly found no evidence of any nexus between the initial entry and the consent. Id. (emphasis added). “Given all these fact ors,” the Seventh Circuit held in Valencia , “we conclude that Valencia’s consen t was sufficiently independent of the allegedly illegal initial entry that the two events were ‘s o attenuated as to dissipate [any] taint’ from the entry.” Id. (quoting Segura v. United States , 468 U.S. 796, 805 (1984)). We acknowledge that seeing two police officers, with weapons drawn, conduct a protective search of one’s home would no doubt be an intimidating sight. But Kyer’s mother saw none of that. She was asleep until awoken by Officer Davis. As the trial court found, this “was not a situation where they had guns drawn pointed at her head, asking her for consent.” Nor is this a case where the officers entered fo r the “very purpose” of obtaining consent. Walls , 2 Va. App. at 655, 347 S.E.2d at 184. They entered because they believed the open door implied danger to those inside. Having weighed their cr edibility, the trial cour t found their explanation truthful and rejected the argument that the officers used this story as a mere pretext to gain entry into the house to investigate the Southside Speedway burglary. Bound by this factual finding,
information obtained during the prior ill egal entry. Segura v. United States , 468 U.S. 796, 815-16 (1984).- 11 - we see no reason to conclude the “purpose and flagrancy of the police misconduct,” Wood , 27 Va. App. at 30, 497 S.E.2d at 488, should invalidate the voluntary consent to search given by Kyer’s mother. The main circumstance disfavoring this c onclusion is the relatively short duration between the entry and consent. We think tw o observations answer that legitimate concern. First, the specific length of time was all but irrelevant from the perspective of Kyer’s mother. She was asleep when the police entered the apartment. She remained asleep as they conducted a protective search. When Officer Davis awoke her, she did not know whether the police had been there for a few minutes or a fe w hours. Her concededly voluntary consent did not depend in any way on the duration of the officers’ presence in her apartment. That is, nothing about the situation suggests that Kyer’s moth er would have been more readily inclined to consent had she known the officers had been in her apartment longer than they in fact were. Cf. State v. Quinn , 623 P.2d 630, 638 (Or. 1981) (finding defendant’s consent was unaffected by prior illegal search because, as defendant was unaware of the illegal search, his consent was “uninfluenced and untainted by the earlier unlawful act”). Second, as for the ten minutes or so betw een being awakened and providing consent, Kyer’s mother took that time to compose herself and to listen to the officers explain why they came to her apartment and why they entered it uni nvited. By itself, however, this brief duration does not put the attenuation inquiry to an end. It is just one of several considerations. Even a very short duration need not negate the efficacy of a voluntary consent. See , e.g. , Seidman , 156 F.3d at 548 (finding a few minute period between entry and consent insufficient to negate consent); Sheppard , 901 F.2d at 1235 (“Even though the ti me span between the challenged conduct and Sheppard’s consent was short, we ca nnot find that the second search resulted from- 12 - the exploitation of the ch allenged conduct.”); Owen , 453 So. 2d at 1207 (holding that consent was valid despite “close temporal proximity ” between the illegal entry and consent).

III.
In sum, we hold that the trial court erred in finding the initial police entry into the apartment could be justified under the emergency or community caretaker exceptions. We find no fault, however, with the court’s alternative finding that the voluntary c onsent to search given by Kyer’s mother was “sufficiently an act of free will to purge the primary taint.” Wong Sun , 371 U.S. at 486. The trial court, therefore, correctly denied Kyer’s motion to suppress.

Affirmed.- 13 - Humphreys, J., concurring in the result. I agree that the trial court correctly denied Kyer’s motion to suppress. However, I continue to believe that the o fficers’ initial entry into the Ky er residence was proper under the community caretaker exception to the warrant requirement. A nd, because the warrantless entry was reasonable, the officers properly searched th e residence after obtaining the voluntary consent of Kyer’s mother. Thus, although I would affirm the judgment of th e trial court, I concur only in the result reached by the majority.
I. The officers arrived at Kyer’s home at approx imately 4:00 in the morning. At that time, the front door was open “wide enough for [Office r Davis] to walk thr ough it without touching the door.” It was dark and raining. There we re no exterior lights on, and no lights were on inside the home. Because of these circumstan ces, Officer Davis and Detective Story believed that “[s]omeone had forced entry or broken in to the home.” Accordingly, the officers “made a . . . plan,” discussing how they would res pond if they “encounter[ed] any opposition.” The officers then “knocked on the door several tim es,” announcing their presence. There was no response. After waiting for “a couple” of mi nutes, the officers drew their firearms and flashlights and proceeded inside the home a nd up the stairs, “continuing to announce [their] presence” in “loud voice[s].” Based on these facts, the trial court explic itly found that “it wa s appropriate for the officers to enter the residence,” reasoning that “t he community caretaker doctrine and/or exigent circumstances permitted their entry into the reside nce.” In particular, the court found that the officers’ “initial contact or i nvestigation was objectively reasonab le,” also concluding that the “police officers in this case we re [not] acting und er a pretext.”- 14 - II. As recognized by the majority, “[i]t is axioma tic that the ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’” Welsh v. Wisconsin , 466 U.S. 740, 748 (1984) (quoting United St ates v. United States District Court , 407 U.S. 297, 313 (1972)). Nevertheless, the Fourth Amendment protects people only from “unreasonable” searches and seizures. See Elkins v. United States , 364 U.S. 206, 222 (1960); Verez v. Commonwealth , 230 Va. 405, 410, 337 S.E.2d 749, 752 (1985). For that reason, the United States Supreme Court has carved out a few delineated exceptions to the warrant requirement. United States District Court , 407 U.S. at 318. For example, according to the “emergency doctrine,” a warrantless entry into a private residence is valid if there is a “reasonably pe rceived ‘emergency’ requiring immediate entry as an incident to the service and protective f unctions of the police as opposed to, or as a complement to, their law enforcement functions.” United States v. Moss , 963 F.2d 673, 678 (4th Cir. 1992); see also Mincey v. Arizona , 437 U.S. 385 (1978); Reynolds v. Commonwealth , 9 Va. App. 430, 436-37, 388 S.E.2d 659, 663-64 (1990). That is, because [t]he right of the police to enter a nd investigate in an emergency is inherent in the very nature of th eir duties as police officers[,] [a] warrantless search during an emer gency situation is “justified, if not required, by the fact that ‘t he preservation of human life is paramount to the right of privacy protected by search and seizure laws and constitutional guaranties [sic].’” Reynolds , 9 Va. App. at 437, 388 S.E.2d at 664 (quoting State v. Fisher , 686 P.2d 750, 761 (Ariz. 1984)) (other citations omitted). 6

6 Although the “emergency doctrine” is often equated to the “exigent circumstances” exception to the warrant requirement, the two differ slightly. When officers conduct an emergency entry for purposes of investigating a crime, the emergency is considered an “exigency” for purposes of the exigent circumst ances exception, and the officers must have probable cause before they can enter the residence. See Commonwealth v. Thornton , 24 Va. App. 478, 484, 483 S.E.2d 487, 490 (1997) (recogni zing that, “[a]mong the circumstances- 15 - Similarly, the “community caretaker doctrine” authorizes a warran tless search conducted pursuant to an officer’s “community caretaking f unctions,” as long as th e search is “totally divorced from the detection, investigation, or acqui sition of evidence relating to the violation of a criminal statute.” Cady v. Dombroski , 413 U.S. 433, 436-37, 441 (1973) (affirming the warrantless search of the trunk of a car that had b een towed to a garage pursuant to the “standard procedure” of a local police department). Alt hough this Court has yet to apply the community caretaker exception to validate the warrantless search of a home, little distinction has been made between the circumstances governing the applica tion of the community caretaker doctrine and those governing the application of the emergenc y exception to the warrant requirement, which unquestionably authorizes a warrantless entr y into a private residence. Compare Commonwealth
v. Waters , 20 Va. App. 285, 288-91, 456 S.E.2d 527, 529-30 (1996), and Barrett v. Commonwealth , 18 Va. App. 773, 776-79, 447 S.E.2d 243, 245-46 (1994), rev’d on other grounds , 250 Va. 243, 462 S.E.2d 109 (1995), with Reynolds , 9 Va. App. at 436-37, 388 S.E.2d at 663-64, and Shannon v. Commonwealth , 18 Va. App. 31, 34-35, 441 S.E.2d 225, 226-27, aff’d on reh’g en banc , 19 Va. App. 145, 449 S.E.2d 584 (1994). 7 Indeed, the non-exigent form
accepted as providing ‘exigent circumstances’ for a warrantless search, are those where a true ‘emergency’ exists”). If, however, the officers effectuate an emergency entry for a purpose unrelated to the investigation of a cr ime—for example, to provide emergency aid to an injured resident—then the entry is valid as long as the officers had an objectively reasonable belief that their help was needed. In this latter sense, th e emergency exception is f unctionally equivalent to, and sometimes deemed a subset of, the community caretaker doctrine.

7 As this Court recognized in Wood v. Commonwealth , 27 Va. App. 21, 28, 497 S.E.2d 484, 487 (1998), the United States Supreme Court has yet to decide whether a warrantless intrusion into an individual’s home may be supported pursuant to the community caretaker exception. Nevertheless, we have applied the exception to uphold warrantless searches in the context of a search of an automobile. See Williams v. Commonwealth , 42 Va. App. 723, 731, 594 S.E.2d 305, 309 (2004); Barrett , 18 Va. App. at 778, 447 S.E.2d at 246. We have also extended this doctrine to permit warrantless searches of pedestrians or citizens that an officer reasonably believes are in distress or in need of assistance. See Terry v. Commonwealth , 23 Va. App. 87, 91, 474 S.E.2d 172, 174 (1996); Waters , 20 Va. App. at 289-90, 456 S.E.2d at 529-30.- 16 - of the emergency exception, also ca lled the “emergency aid doctrine,” is often deemed a subset of the community caretaker doctrine. 8 Nevertheless, the community caretaker doc trine, like the emer gency exception, is premised on the concept that police officers owe “‘ duties to the public, such as rendering aid to individuals in danger of physical harm, reduci ng the commission of crimes through patrol and other preventive measures, and providing serv ices 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 Wood v. Commonwealth , 27 Va. App. 21, 33, 497 S.E.2d 484, 490 (1998) (Annunziata, J., dissenting). Indeed, it is fa r from illogical to expect that police officers, as a necessary function of thei r profession, do much more than simply “investigate” crimes or wrongs that have already occurred or that have unfolded in th eir presence. To the contrary, [p]olice 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 th e commission of some crimes through preventive patrol and othe r 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,” a nd “provide other services on an emergency basis.” 3 W. LaFave, Search and Seizure § 6.6, at 389-90 (1996); see also Wood , 27 Va. App. at 33, 497 S.E.2d at 490 (Annunziata, J., dissenting). Thus, “ police [often] have occasion to enter premises without a warrant for a variety of . . . purpos es,” including fulfillment of their community caretaking duties. Wood , 27 Va. App. at 33, 497 S.E.2d at490 (Annunziata, J., dissenting) (internal quotations omitted). Accordingly, I would hold that the commun ity caretaker exception, in its narrowest sense, must logically extend to the warrantless entry of homes, as long as the officer conducting

8 See note 1, supra

.- 17 - the search is acting appropriately within th e doctrine and independent of his criminal investigatory duties. 9
III. The majority does not seriously contest the applicability of the community caretaker exception to a private residence, concluding instead that, under the circumstances of this case, “the facts would not justify an objectively reasonable officer to think [the] exception applied.” The majority reasons that, consider ing the lack of signs of forced entry and the absence of cries for help, the entry was objectivel y unreasonable. I disagree.
A. The appropriateness of applyi ng the community caretaker do ctrine to a given factual scenario is determined by whether, based upon the totality of the circumstances, it was reasonable for the officer to believe that his or he r actions were necessary for: (1) the protection of the owner’s property while it remains in police custody; (2) the protection of police against claims or disputes concerning lo st or stolen propert y; or (3) protection of the public and the police from physical danger. Williams v. Commonwealth , 42 Va. App. 723, 730, 594 S.E.2d 305, 309 (2004) (citing Reese v. Commonwealth , 220 Va. 1035, 1039, 265 S.E.2d 746, 749

9 We have consistently requi red that any warrantless searc h, pursuant to either the community caretaker exception or the emergency exception, must be factually unrelated to an intent to search for evidence of illegal activity. See Reynolds , 9 Va. App. at 438, 388 S.E.2d at 664 (applying the emergency exception and noting th at “[n]o evidence in th e record suggest[ed] that the [officers’] entry into appellants’ house . . . was a pretext to search for contraband or illegal activity rather than to look for possibl e victims and to secure the property,” and finding that the officers “act[ed] in good faith under the circumstances and according to their responsibilities as law enfo rcement officers”); see also Williams , 42 Va. App. at 731, 594 S.E.2d at 309 (noting that a search, pursuant to impoundment of a vehicle and corresponding community caretaking functions, “must not be a pretextual surrogate for an improper investigatory motive”); Waters , 20 Va. App. at 290, 456 S.E.2d at 530 (applying the community caretaker exception in the context of a police/pe destrian encounter and stating that “[t]he appropriateness of applying the community caretak er doctrine to a given factual scenario is determined by,” among other things, “whether . . . the officer is not investigating criminal conduct under the pretext of exercising his community caretaker function”).- 18 - (1980); South Dakota v. Opperman , 428 U.S. 364, 373-76 (1976); Cady , 413 U.S. at 442-48). Specific factors to be considered include: (1) whet her the officer’s initial contact or investigation is reasonable; (2) whether the intrusion is limite d; and (3) whether the o fficer is investigating criminal conduct under the pretext of exerci sing his community caretaker duties. Waters , 20 Va. App. at 290, 456 S.E.2d at 530. Overall, “[o]bj ective reasonableness remains the linchpin of determining the validity of [the] action.” Id. ; cf. Reynolds , 9 Va. App. at 437, 388 S.E.2d at 663- 64 (applying objective reasonablen ess test to emergency exception to warrant requirement). Under the circumstances of this case, I w ould hold that the offi cers’ warrantless entry into the home was justified pursuant to the comm unity caretaker exception. The officers arrived at Kyer’s home at 4:00 a.m. It was dark and ra ining outside. No lights we re on inside or outside the home. Yet, the front door to Kyer’s home stood open—wide enough that the officers could walk through it without touching the door. The officers announced their presence loudly, several times, and, after receiving no answer, they entere d the home to determine whether anyone was in the home and whether those persons were in need of assistance. The officers made a limited “protective sweep,” motivated only by the safety and well-being of the residents. Moreover, as expressly found by the trial court, the officers did not enter the home under the pretext of searching for evidence of criminal activity. Considering the totality of th ese circumstances, I would hold that the officers, acting out of “concern for the safety of the general public,” Cady , 413 U.S. at 447, reasonably believed that “there [might be] a difficulty requiring [their] general assistance.” Laney v. State , 117 S.W.3d 854, 861 (Tex. Ct. Crim. App. 2003) (internal quotati ons omitted). Thus, I would affirm the trial court’s determination that the officers’ limited en try was objectively reasonable and, as a result, constitutionally permissible pu rsuant to the community caretaker exception to the warrant requirement. Indeed, because the officers reas onably believed that “foul play” might have- 19 - occurred, I am of the opinion that the officers “w ould have been derelict in their duty” had they

not entered the residence. State v. Hetzko , 283 So. 2d 49, 52 (Fla. Dist. Ct. App. 1973).
B. The majority, however, citing State v. Christenson , 45 P.3d 511 (Or. Ct. App. 2002), concludes that “an open door on a summer morning is not, in and of itself , a circumstance that could give rise to a reasonable belief that entry is necessary to prevent harm to persons or property.” Id. at 513 (emphasis added). Because Christenson is distinguishabl e from the present case in several key respects, I do not believe that its holding is persuasive under the circumstances of this case. First, in Christenson , the investigating officers encount ered an open door at 9:20 a.m., on a “summer morning.” Here, it was 4:00 a.m., dark, and raining. There is a significant difference between encountering an open door at 9:20 a.m. and encountering an open door at 4:00 a.m. That is, although it would not be pa rticularly unusual to leave the front door ajar at 9:20 on a “summer morning,” it is markedly more suspicious to encounter an open door at 4:00 a.m., when it is still dark outside, it is rain ing, and the residents of the home are much more likely to be asleep. Second, in Christenson , the issue before the court was not whether the officers’ conduct violated the warrant requirement of the Fourth Amendment to the United States Constitution. Rather, the Christenson court was interpreting a provision of the Oregon “community caretaker” statute, Or. Rev. Stat. § 133.033, which, inter alia , gives “officers of [tha t] state” the permission to enter “the premises of another” so as to “[p] revent serious harm to any person or property.” Or. Rev. Stat. § 133.033(2)(a)(A). Although the c ourt noted that the “community caretaking function is subject to the limitati ons on warrantless searches containe d in Article I, section 9, of the Oregon Constitution,” 45 P.3d at 513, the Christenson court did not rule that the officers’- 20 - conduct, in addition to exceeding the scope of thei r statutory authority, also violated the Fourth Amendment to the United States Constitution. Ra ther, the court held only that the officers’ conduct could not be validated under the state constitution, reasoning that “ [t]here is no community caretaking exception under the Oregon Constitution .” Id. at 514 (emphasis added). Third, in Christenson , the lower court granted the defendant’s motion to suppress, holding that “the officers had no basis in fact for having [the belief that someone inside the house was injured] other than that the door was open and the dogs were running around.” Id. at 513. The appellate court acknowledged th at it was “bound by . . . [this] finding[] of historical fact.” Id. Here, in contrast, the trial court found th at the initial investigation was “objectively reasonable,” and denied the motion to suppress. We have he ld that “[t]he reasonableness of a police officer’s response in a given situation is a question of fact for the trial court[,] and its ruling will not be disturbed on appeal abse nt clear and manifest error.” Reynolds , 9 Va. App. at 437, 388 S.E.2d at 664; see also Shears v. Commonwealth , 23 Va. App. 394, 398, 477 S.E.2d 309, 311 (1996) (noting that this C ourt gives due weight to “a tr ial court’s finding that [an] officer was credible and [that the officer’s] inference was reasonabl e” (internal quotations omitted)). Accordingly, we, too, are “bound by . . . [this] finding[] of historical fact,” Christenson , 45 P.3d at 513, specifically, that the warra ntless entry was objectively reasonable. Thus, I believe the significant disparities betw een the circumstances of the present case and those presented in Christenson render that case unsuitable to justify the majority’s legal position.
C. Moreover, the majority’s underlying rationale —that the officers needed some “additional fact” to justify a warrantless entry under the circ umstances of this case—demonstrates confusion or a decided lack of understanding of the community caretaker exception to the warrant- 21 - requirement. Citing Hill v. Commonwealth , 18 Va. App. 1, 441 S.E.2d 50 (1994), a case in which a panel of this Court authoriz ed a warrantless entry premised on the exigent circumstances exception to the warrant requirement, the majority concludes that “something more” was needed here.
In Hill , the police department received a call fr om a neighbor, requesting that the police “send somebody out to check to see whether [H ill’s] house had been broken into.” Id. at 2, 441 S.E.2d at 50. The neighbor informed the police th at Hill was out of town, that he had not been seen for two days, and that the fr ont door to the house was open. See id. The officers went to the house to investigate. Upon their arrival, they noted that the front door “was open about twelve to fifteen inches,” and they ra ng the doorbell and knocked on the door. Id. After receiving no response, the officers “entered the home to investigate the possibility of a burglary .” Id. (emphasis added). While searching the home “in places where a burglar might hide,” the officers discovered marijuana and various drug paraphernalia. Id. at 2-3, 441 S.E.2d at 50-51. On appeal, we held that the trial court properly denied Hill’s motion to suppress, reasoning that the exigent circumstances exceptio n to the warrant requirement applied. See id. at 3, 441 S.E.2d at 51. We noted that, “ [w]hen probable cause exists , exigent circumstances excuse the requirement of obtai ning a warrant,” and concluded th at, under the circumstances of that case, the officers had “ probable cause to believe that Hill’s house had been unlawfully entered.” Id. at 4, 441 S.E.2d at 51 (emphasis added). The exigent circumstances exception to the warrant requirement applies when, inter alia , “there is a clear showing of pr obable case at the time of entry,” and “the officers have strong reason to believe the suspects are present in the premises,” or that evidence will be destroyed absent an immediate entry. Id. at 3, 441 S.E.2d at 51 (citing Verez , 230 Va. 405, 337 S.E.2d 749). Thus, this exception is properly applied where, as in Hill , there is probable cause to- 22 - believe that a crime has been or is being committed, and the officers enter the premises for the purpose of investigating that crime . See id. The community caretaker exception, however , does not require a showing of probable cause. Rather, it requires an objectively reasonable belief that the officers’ conduct is necessary to provide aid or to protect members of the public from physical harm. See Williams , 42 Va. App. at 730, 594 S.E.2d at 309; Waters , 20 Va. App. at 290, 456 S.E.2d at 530. Moreover, unlike the exigent circumstances exception, the warrantless entry must be “totally divorced” from a criminal investigation. Cady , 413 U.S. at 436-37. That is, the police officers must be acting in a protective, rather th an crime-fighting, capacity. Because the warrantless entry must be “tota lly divorced” from a criminal investigation, proof that a crime has been or is being committed adds nothing to a community caretaker analysis. But here, by opining that some “add itional fact” would have justified the officers’ warrantless entry, the majority, in essence, seems to be requiring a showing of probable cause as a prerequisite for application of the community car etaker doctrine. That is, the majority implies that, in order to have an objectiv ely reasonable belief that an indivi dual is in need of assistance, the officers must also have probable cause to believe that a crime has been or is being committed. In practical effect, then, the majority is subsuming the community caretaker doctrine into the exigent circumstances ex ception. I simply cannot join in this result. See generally Laney , 117 S.W.3d at 860-61 (discussing the distin ction between the community caretaker doctrine and the exigent circumstances excep tion); Mary Elisabeth Naumann, Note, “The Community Caretaking Doctrine: Yet Another Fourth Amendment Exception ,” 26 Am. J. Crim. L. 325, 332 (1999) (“[T]he reasoning behind the co mmunity caretaker doctrine precludes an equation . . . [with the] exigent circumstances [e xception] because the latt er necessarily involves criminal considerations.”).- 23 - IV. For these reasons, I would hold that the officer s’ warrantless entry was justified pursuant to the community caretaker exception to the warra nt requirement. Had these officers’ worst fears been justified and had hindsight disclosed a re sident either deceased or in desperate need of medical assistance, I doubt that either the reside nt, assuming he or she su rvived, or the general public would accept the majority’s reasoning that it would not be “objectively reasonable” for police to investigate such suspic ious circumstances. Thus, alt hough I agree that the trial court did not err in denying Kyer’s motion to suppress, I disagree with the analysis of the majority and, consequently, concur only in the result.- 24 - Fitzpatrick, C.J., with whom Benton, and Elder, JJ ., join, concurring, in part, and dissenting, in part. I concur in the majority’s ruling that the community caretaker exemption to the Fourth Amendment warrant requirement did not justify th e police entry into appellant’s apartment. However, I respectfully dissent from that por tion of the majority opinion that holds that appellant’s mother’s later consent to search was “sufficiently an act of free will” to purge the originally illegality. See Wong Sun v. United States , 371 U.S. 471, 486 (1963). Thus, I would reverse the convictions. Having determined that the initial entry into Kyer’s home was made in violation of the Fourth Amendment and that Kyer’s mother gave consent to the police to search the home, it is necessary to analyze whether this consent was ob tained as the result of the illegal entry. I believe that the facts of this case glaringly fail to establish th at the consent given by Kyer’s mother was sufficiently attenuated from the earlier unlawful police entry to provide an independent basis for admitting the seized contraband. The exclusionary rule pr ohibits the introduction into evidence of tangible and testimoni al evidence acquired during an unlawful search, while also pr ohibiting the in troduction of derivative evidence “that is the prod uct of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes ‘so attenuated as too dissipate the taint.’” The exclusionary rule’s prohibition of derivative evidence is the essence of the “fruit of th e poisonous tree” doctrine. Commonwealth v. Ealy , 12 Va. App. 744, 754, 407 S.E.2d 681, 687-88 (1991) (citations omitted). The remaining question to be resolved is whether the later acquired evidence is tainted and was “come at by exploitation of the initial illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Segura v. United States , 468 U.S. 796, 804-05 (1984). As stated by the Supr eme Court in Brown v. Illinois , 422 U.S. 590 (1975), the fact that- 25 - the consent ultimately given may have been voluntary, does not mean that the primary taint has been purged. Id. at 599. Factors that must be considered include the temporal proximity of the illegal entry, whether Kyer’s mother was info rmed that she could w ithhold her consent, any additional intervening circumstan ces between the entry and the consent, and the purpose and flagrancy of the official misconduct. Id. at 603-04. See also Davis v. Commonwealth , 37 Va. App. 421, 433-35, 559 S.E.2d 374, 379-80 (2002); Walls v. Commonwealth , 2 Va. App. 639, 654, 347 S.E.2d 175, 183 (1986). In the instant case, the fact s establish that the police ente red Kyer’s home at 4:00 a.m. after failing to awaken the sleeping occupants. They went into Ms. Kyer’s bedroom with their flashlights shining and their guns drawn. They id entified themselves as police and after allowing her time to “get herself together,” but within ten minutes of the origin al contact, began to question her about her son’s possible involvement in the theft they were investigating when they first came to her home. At that point she cons ented to the search. Ten minutes is hardly a reasonable period of time in which to recover fr om the police entry into a private home with guns drawn. Thus, there was no significant pa ssage of time and the temporal intervention requirement was unmet. See Taylor v. Alabama , 457 U.S. 687, 691 (1982) (six hours between illegal arrest and confession); Brown , 422 U.S. at 604 (two hours betw een arrest and confession). Next, Ms. Kyer was never informed that she c ould refuse to consent to the police search. There were no other intervening circumstances be tween the police entry a nd their questioning of Ms. Kyer which led to her consent. The only Brown factor favorable to the Commonwealth’s position is that the trial court found that the initial entry was not pr etextural. While I agree with the majority that no single factor controls a nd a “careful sifting of the unique facts and circumstances of each case” is required, the facts of this case do not establish the requisite break in the causal connection between the illegal entry and the later c onsent to search. This evidence- 26 - was “‘come at by exploitation of that illegal ity . . . instead of by means sufficiently distinguishable to be purged of the primary taint.’” Wong Sun , 371 U.S. at 488 (citation omitted). Thus I would reverse the convictions.Tuesday 21st September, 2004.
Joshua Davis Kyer, Appellant, against Record No. 2200-03-2 Circuit Court Nos. CJ03F00020-01 through CJ03F00020-03 and CJ03M00021-01 through CJ03M00021-03 Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc Before Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner, Frank, Humphreys, Clements, Fe lton, Kelsey and McClanahan
On August 31, 2004 came Joshia Davis Kyer, the a ppellant, by court-appointed counsel, and filed a petition praying that th e Court set aside the judgment rendered herein on August 17, 2004, and grant a rehearing en banc thereof. On consideration whereof, the petition for rehearing en banc is granted, the mandate entered herein on August 17, 2004 is stayed pending the decision of the Court en banc , and the appeal is reinstated on the docket of this Court. The parties shall file briefs in compliance with Rule 5A:35. The appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion pr eviously rendered by the Court in this matter. It is further ordered that the a ppellant shall file with the clerk of this Court twelve additional copies of the appendix previously filed in this case. A Copy,
Teste: Cynthia L. McCoy, Clerk By: Deputy ClerkCOURT OF APPEALS OF VIRGINIA Present: Judges Bumgardner, Humphreys and Senior Judge Hodges Argued at Richmond, Virginia

JOSHUA DAVIS KYER OPINION BY v. Record No. 2200-03-2 J UDGE ROBERT J. HUMPHREYS AUGUST 17, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Michael C. Allen, Judge James R. Cooke, Jr., for appellant. John H. McLees, Senior Assist ant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Joshua Davis Kyer appeals his convictions , after a bench trial, for three counts of statutory burglary, in violation of Code § 18.2-91 and three counts of petit larceny, in violation of Code § 18.2-96. Kyer argues the trial court erred in refusi ng to suppress certain evidence, which he alleges was “obtained as a result of an illegal, warrantle ss search and seizure.” For the reasons that follow, we affirm. I. Background As the parties conceded below, the facts in this case are e ssentially “uncontroverted.” On August 26, 2002, Officer B.E. Davis and Detectiv e Brent Story, of the Chesterfield County Police Department, responded to an “ACTF” al arm that had been activated at Southside Speedway. It was approximately 2:00 a.m. Of ficer Davis was in uniform; Detective Story was wearing “a shirt and tie.” As they arrived on th e scene, they observed two individuals running- 2 - from the establishment. 1 The officers were able to apprehen d only one of the individuals. That individual subsequently implicated a “Mr. Able” in the burglary. 2 The officers immediately went to Mr. Able’s home and questioned him. Mr. Able implicated Kyer in the burglary and agreed to take the offi cers to Kyer’s home. The officers arrived at Kyer’s home at appr oximately 4:00 a.m. that morning. As they approached the front door, th ey observed that the door was open “wide enough for [Officer Davis] to walk through it without touching the door .” It was dark and raining, and “[t]here were no exterior lights” on, nor lig hts on inside the home. Because of the circumstances, Officer Da vis and Detective Story believed that “[s]omeone had forced entry or broken into the home.” Accordingly, they “made a . . . plan,” discussing how they would respond if they “enc ounter[ed] any opposition.” The officers then “knocked on the door several times,” announcing th eir presence. After “a couple” of minutes, and after hearing no response from inside the home, the officers drew their firearms and flashlights and proceeded inside the home a nd up the stairs, “continuing to announce [their] presence” in “loud voice[s].” While conducting a “protect[ive] sweep” of al l of the rooms of the home, Officer Davis found that two people were in the home, “asleep in their beds.” “Less th an two minutes” later, while Detective Story waited in the “living room” of the home, Officer Davis awoke one of the

1 Upon investigating the alarm, officers f ound that “six or so” door s had been “forcibly entered” and “several items” had been taken. This same location had been burglarized on two other occasions, within the past 60 days.

2 According to the record, “Mr. Able” was a third individual who was involved in the burglary. Police had observed “Mr. Able” near the scene. However, “Mr. Able” was in a car and, although the officers suspected he had been involved in the burglar y, they did not have sufficient information “to hold him” at that time.- 3 - sleeping individuals by shining his flashlight “on her.” The officer s later learned that individual was Kyer’s mother. When she awoke, Officer Davis identified himself, inquired as to her well-being, and asked if anyone else was “supposed to be in the house.” Kyer’s mother responded that “her sons were.” The officers then woke up Kyer’s brother, the only other person they had observed sleeping in the home. After Kyer’s mother “g[ot] herself togeth er,” approximately ten minutes after Officer Davis woke her up, Officer Davis and Detective Story met with he r and Kyer’s brother in the “common area” of the home. Detective Story “sat down in a chair across from her, explained . . . what was going on and why [they] had been th ere originally and also explained to her why [they] came in in the first plac e so she would understand that.” Officer Davis then asked Kyer’s mother if they could “check[] the house for a nything that was stolen from the Southside Speedway.” Kyer’s mother agreed. Officer Davis subsequently found several of the missing items in Kyer’s bedroom. Kyer was charged with three counts of statutory burglary and three counts of petit larceny. Because Kyer was a minor, he was tried and convicted of the charges in the juvenile and domestic relations district cour t. Kyer appealed his convictions to the circuit court and prior to his trial de novo , filed a motion to suppress the eviden ce against him, arguing the officers’ search was “conducted without a warrant and wa s not within any exception to the warrant requirement.” During the hearing on Kyer’s motion to suppres s, Detective Story testified that he had “worked the midnight shift for over nine years in patrol” and that it was not “uncommon” to approach homes and find doors standing open. He st ated, “[e]very time [this occurs], we make entry to make sure everything inside is okay.”- 4 - Kyer’s counsel subsequently argued that the officers did not enter the home because of an “exigent circumstance,” but agreed that if th e officers were exercising their “community caretaker function” in entering the home, their entry would be a “justifiable exception[] to the prohibition against a warra ntless search.” Nevertheless, Ky er’s counsel contended that the evidence demonstrated they entered the home, not for purposes of exer cising their community caretaker function, but for the pret extual purpose of investigati ng Kyer’s “criminal activity.” Kyer’s counsel argued further: The other issue, Your Honor, that I think is important to consider is that, you know, this is a residence. This isn’t a car. This isn’t some sort of thing where we have a lesser expectation of privacy. This is someone’s home. I heard th e officer testify that they have a practice of entering homes. However, I mean, in my experience, I’ve not known police to enter homes just simply because a door is ajar. * * * * * * * The only remaining issue, Your Honor, would be whether or not any consent obtained thereafter would be acceptable or valid[.] . . . I think another issu e here, Judge, is whether or not under those circumstances a pe rson can give a voluntary, uncoerced kind of consent. The trial court ruled as follows, in relevant part: I find that . . . it was appropriate for the officers to enter the residence, although they certainly ar rived there initially as part of the conduct of the criminal inve stigation, I do think that the community caretaker doctrine and/or exigent circumstances permitted their entry into the residence. Particularly, I find that their initial contact or investiga tion was objectively reasonable, but the intrusion was limited and I do not find that the police officers in this case were acting under a pretex t. . . . I also find that even in the absence of evidence that [Kyer’s mother] was expressly advised that she had the right to wi thhold consent, the totality of the circumstances are not sufficient to have vitiated her consent. So, on that ground, irrespective of what decision the Court might reach on the question of exigen t circumstances or exercising community caretaker function [s ic], the consent was valid. Therefore, I’m going to overrule the motion to suppress . . . .- 5 - Kyer subsequently pled “Not Guilty” to the charge s, but conceded that the evidence summarized by the Commonwealth would be sufficient to su pport convictions. Afte r noting that Kyer “preserve[d] [his] objection on the 4th Amendmen t issue,” the trial court found Kyer guilty of the charged offenses. II. Analysis On appeal, Kyer argues that the trial c ourt erred in denying his motion to suppress because: 1) the “community caretaker exceptio n,” as applied in the Commonwealth, does not extend to homes; 2) even were the “community car etaker exception” to apply, the officers lacked a “reasonable basis” upon which to believe that entry into the home was warranted; and 3) Kyer’s mother’s consent was “vitiated as a resu lt of the illegal, warrantless entry.” For the reasons that follow, we disagree. We note first, that “[t]he burden to establ ish that the denial of the motion to suppress constituted reversible error rests with the defendant.” King v. Commonwealth , 39 Va. App. 306, 308, 572 S.E.2d 518, 519 (2002) (citations omitted). At a hearing on a defendant’s motion to suppress evidence allegedly obtained in violation of the Fourth Amendment, the defendant has the burden of establ ishing standing by proving that he had a reasonable expectation of privacy in the place searched, and the Commonwealth has the burde n of proving that the relevant searches or seizures did not violate the defendant’s Fourth Amendment rights. Jefferson v. Commonwealth , 27 Va. App. 1, 10, 497 S.E.2d 474, 478 (1998) (citations omitted). Further, “[w]e are bound by the tria l court’s findings of historical fact unless ‘plainly wrong’ or without evidence to suppor t them[,] and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officer s.” McGee v. Commonwealth , 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) ( en banc ) (citing Ornelas v. United States , 517 U.S. 690, 699 (1996)). “However, we review de novo the trial court’s application of defined- 6 - legal standards such as probable cause and reason able suspicion to the particular facts of the case.” Hayes v. Commonwealth , 29 Va. App. 647, 652, 514 S.E.2d 357, 359 (1999). It is axiomatic that the “physical entry of the home is the chief evil against which the wording of the F ourth Amendment is directed.” United States v. United St ates District Court , 407 U.S. 297, 313 (1972). And a principal protection against unnecessary intrusions into private dwellings is the wa rrant requirement imposed by the Fourth Amendment on agents of th e government who seek to enter the home for purposes of search or arrest. See Johnson v. United States , 333 U.S. 10, 13-14 (1948). It is not surprising, therefore, that the [United States Supreme] Court has recognized, as “a ‘basic principle of Fourth Amendment law[ ,]’ that searches and seizures inside a home without a warrant are presumptively unreasonable.” [Payton v. New York , 445 U.S. 573, 586 (1980)]. Welsh v. Wisconsin , 466 U.S. 740, 748-49 (1984). Nevertheless, the Fourth Amendment protects people only from “unreason able” searches and seizures. See Elkins v. United States , 364 U.S. 206, 222 (1960); Verez v. Commonwealth , 230 Va. 405, 410, 337 S.E.2d 749, 752 (1985). For that reason, the United States S upreme Court has carved out a few delineated exceptions to the warrant requirement. United States District Court , 407 U.S. at 318. One such exception, recognized by the United States Supreme Court and adopted by the courts of this Commonw ealth, is known as the “emergency doctrine.” See Reynolds v. Commonwealth , 9 Va. App. 430, 436-37, 388 S.E.2d 659, 663-64 (1990); see also Mincey v. Arizona , 437 U.S. 385 (1978). This exception is described as a “reasonably perceived ‘emergency’ requiring immediate entr y as an incident to the serv ice and protectiv e functions of the police as opposed to, or as a complement to, their law enforcement functions .” United States
v. Moss , 963 F.2d 673, 678 (4th Cir. 1992) (emphasis added). Thus, because [t]he right of the police to enter a nd investigate in an emergency is inherent in the very nature of th eir duties as police officers[,] [a] warrantless search during an emer gency situation is “justified, if not required, by the fact that ‘t he preservation of human life is paramount to the right of privacy protected by search and seizure laws and constitutional guaranties [sic].’”- 7 - Reynolds , 9 Va. App. at 437, 388 S.E.2d at 664 (quoting State v. Fisher , 686 P.2d 750, 761 (Ariz. 1984)) (other citations omitted) (applyi ng emergency doctrine as type of exigent circumstance permitting entry of residence in course of investigat ing burglary and confirming safety of residents where police had already apprehende d burglar who admitted prior entry into residence and noting “[a]mong the circumstances accepted as providing ‘exigent circumstances’ for a warrantless search are those wh ere a true ‘emergency’ exists”). Another exception to the warrant requirement is very similar to the emergency doctrine. That exception has become known as the “comm unity caretaker doctrine.” Cady v. Dombroski , 413 U.S. 433 (1973). In Cady , the United States Supreme Court upheld a warrantless search of a trunk of a car that had been towed to a garage after an accident. 413 U.S. at 436-37. The Court noted that towing the car to the garage was “s tandard procedure” in th at particular police department. Id. In affirming the reasonableness of the search, the Cour t recognized that: Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen cont act involving auto mobiles will be substantially greater than police-citi zen contact in a home or office. Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police o fficers, unlike federal officers, frequently investigate vehicle accid ents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, in vestigation, or acquisition of evidence relating to the viola tion of a criminal statute

. Id. at 441 (emphasis added). As this Court recogni zed in Wood v. Commonwealth , 27 Va. App. 21, 28, 497 S.E.2d 484, 487 (1998), the United States Supreme Court has yet to decide whether a warrantless intrusion into an individual’s home may be supported by the co mmunity caretaker exception.- 8 - Indeed, as Kyer accurately argues on appeal, we have likewise yet to decide if the community caretaker doctrine may apply to validate a warrantless entry into a home. 3 Nevertheless, we have applied the exception to uphold warrantless searches in the context of a search of an automobile.
See Williams v. Commonwealth , 42 Va. App. 723, 731, 594 S.E .2d 305, 309 (2004); Barrett v. Commonwealth , 18 Va. App. 773, 778, 447 S.E.2d 243, 246 (1994), reversed on other grounds , 250 Va. 243, 462 S.E.2d 109 (1995). We have also extended this doctrine to permit warrantless searches of pedestrians or citizens that an officer reasonably believes are in distress or in need of assistance. See Terry v. Commonwealth , 23 Va. App. 87, 91, 474 S.E.2d 172, 174 (1996); Commonwealth v. Waters , 20 Va. App. 285, 289-90, 456 S.E.2d 527, 529-30 (1995). We find it of no moment, however, that we ha ve yet to apply the community caretaker exception in the context of a warrant less search of a home. Indeed, we find that in the context of a warrantless entry and search, little distinct ion has been made between the circumstances governing the applicatio n of the community caretaker doctrine and those governing the application of the emerge ncy exception 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 , 9 Va. App. at 436-37, 388 S.E.2d at 663-64, and Shannon v.

3 The Commonwealth contends on appeal that Kyer failed to raise this particular argument below and thus, that we are barred from c onsidering this issue pursuant to Rule 5A:18. However, as set forth above, Kyer clearly argued – albeit somewhat inartfully: The other issue, Your Honor, that I think is important to consider is that, you know, this is a residence. This isn’t a car. This isn’t some sort of thing where we have a lesser expectation of privacy. This is someone’s home. We thus find that Kyer pr operly preserved the issue for purposes of appeal. See Lash v. County of Henrico , 14 Va. App. 926, 929, 421 S.E.2d 851, 853 (1992) (en banc) (noting that Rule 5A:18, “does not prohibit reliance on statutes or cases not presente d to the trial court to support, on appeal, a position otherwise adeq uately presented at trial”).- 9 - 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). In fact, the only true distinction between th ese two doctrines is whether the search at issue related to a criminal investigat ion. In particular, as noted in Moss , the emergency doctrine may apply independent of investigatory functions, or it may apply as a “complement to [such] functions.” Moss , 963 F.2d at 678. When applied as a “co mplement” to investigatory functions of the police, the emergency exception becomes s ubsumed within the doctrine of exigencies and must therefore, satisfy the requirements of wa rrantless entry under those circumstances. See Commonwealth v. Thornton , 24 Va. App. 478, 484, 483 S.E.2d 487, 490 (1997) (recognizing that “[a]mong the circumstances accepted as providing ‘exigent circumstances’ for a warrantless search are those where a true ‘e mergency’ exists” (quoting Reynolds , 9 Va. App. at 436, 388 S.E.2d at 663)); see also Hill v. Commonwealth , 18 Va. App. 1, 3, 441 S.E.2d 50, 51 (1994) (“When probable cause exists, exigent circumst ances excuse the requirement of obtaining a warrant, but exigent circumstances do not excuse the requirement of probable cause .” (emphasis added)). However, when applied independently of police investigatory functions (in the “non-exigent” context), the emergency exception becomes the functional equivalent of that portion of the community caretaker doctrine rec ognizing that, independent from their duties of investigating crimes, “police owe ‘duties to the public, such as re ndering 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.’” Reynolds , 9 Va. App. at 436, 388 S.E.2d at 663 (quoting Washington v. Bakke , 723 P.2d 534, 536 (Wash. Ct. App. 1986)). Nevertheless, unlike the hybrid nature of th e emergency exception, the community caretaker exception may only apply to those circumstances “tota lly divorced from the detection,- 10 - investigation, or acquisition of ev idence relating to the violation of a criminal statute.” Cady , 413 U.S. at 441. 4 For that reason, this Court has consistently re quired that any warrant less search, pursuant to either the community caretaker exception or the “non-exigent” form of the emergency exception, be factually unrelated to an intent to search for evidence of illegal activity. See Reynolds , 9 Va. App. at 438, 388 S.E.2d at 664 (appl ying the emergency exception and noting that “[n]o evidence in the record suggest[ed] that the [officers’] entry into appellants’ house . . . was a pretext to search for contraband or illegal activity rather than to look for possible victims and to secure the property,” and finding th at the officers “act[ed] in good faith under the circumstances and according to their responsibi lities as law enforcemen t officers”); compare Williams , 42 Va. App. at 731, 594 S.E.2d at 309 (noting that a search, pursuant to impoundment of a vehicle and corresponding community caret aking functions, “must not be a pretextual surrogate for an improper investigatory motive”); King , 39 Va. App. at 310, 572 S.E.2d at 520; Servis v. Commonwealth , 6 Va. App. 507, 521, 371 S.E.2d 156, 163 (1988); compare also
Waters , 20 Va. App. at 290, 456 S.E.2d at 530 (applyi ng the community caretaker exception in the context of a police/pedestrian encounter and stating that “[ t]he appropriateness of applying the community caretaker doctrine to a given fact ual scenario is determined by,” among other things, “whether . . . the officer is not inve stigating criminal conduc t under the pr etext of exercising his community caretaker function”). Accordingly, we find that any distinc tion between the two exceptions has been effectively eradicated in the Co mmonwealth. In fact, such eradic ation has erred on the side of the sanctity of individuals’ Four th Amendment privacy rights, by requiring, in every case, that

4 The trial court implicitly recognized the si milarity between these two doctrines in its ruling, “I do think that the community caretaker doctrine and/or exigent circumstances permitted their entry into the residence.”- 11 - police officers conducting warrantless searches pu rsuant to these exceptio ns do so independently of their criminal investig atory functions. In light of this, we find no reason to conclude that both doctrines, community caretaker and emergency, given the appropriate circumstances , should not extend to warrantless searches of homes. As indicated above, an unders tanding of the policy issues concerned further supports our conclusion. The community caretaker doctrine, similar to 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 individua ls 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 Wood , 27 Va. App. at 33, 497 S.E.2d at 490 (Annunziata, J., dissenting). Indeed, it is far from illogical to expect that police officers, as a necessary function of their prof ession, do much more than simply “investigate” crimes or wrongs that have already occurred or that have unfolded in their presence. To the contrary, [p]olice 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 th e commission of some crimes through preventive patrol and othe r 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,” a nd “provide other services on an emergency basis.” 3 W. LaFave, Search and Seizure § 6.6, at 389-90 (1996); see also Wood , 27 Va. App. at 33, 497 S.E.2d at 490 (Annunziata, J., dissenting). Thus, “ police [often] have occasion to enter premises without a warrant for a variet y of . . . purposes.” Id.- 12 - While we recognize that the factual circum stances supporting an application of the community caretaking function “used to uphold a vehicle search, such as existed in Cady , may not be sufficient to justify an intrusion into an individual’s home ,” Wood , 27 Va. App. at 27, 497 S.E.2d at 487 (citing Cady , 413 U.S. at 439; and South Dakota v. Opperman , 428 U.S. 364, 367 (1976)) (noting the distinction in the privacy interests of a vehicl e versus a residence) (emphases added), it is fundamental that police will have oc casion to enter many types of “premises” for the purpose of carrying out their community caretaking duties and that such other premises will necessarily include homes. In f act, under circumstances leading an officer to reasonably believe that an individual inside a home wa s in immediate need of his or her assistance, the officer would clearly be remiss if he or she re fused to investigate the matter and/ or offer that assistance, based solely on the fact that the individual was lo cated within a home, ve rsus a car or a public sidewalk. For these reasons, we hold that at least some form of the community caretaker exception, in its narrowest sense , must logically extend to the wa rrantless entry of homes. Our analysis, however, is not yet complete . We must now determine whether the circumstances presented in the case at bar we re sufficient to warrant application of the community caretaker exception. The appropriateness of appl ying the community caretaker doctrine to a given factual scenario is determin ed by whether, based upo n the totality of the circumstances, it was reasonable for the officer to believe that his or her actions were necessary for: “1) the protection of the owner’s property while it re mains in police custody, 2) the protection of police against claims or disputes concerning lost or st olen property, [or] 3) protection of the public and the police from physical danger.” Williams , 42 Va. App. at 730, 594 S.E.2d at 309 (citing Reese v. Commonwealth , 220 Va. 1035, 1039, 265 S.E.2d 746, 749 (1980); Opperman , 428 U.S. at 373-76; and Cady , 413 U.S. at 442-48); see also Reynolds , 9 Va. App. at 437, 388 S.E.2d at 664 (“Police officers are not required to possess eith er the gift of prophecy or- 13 - the infallible wisdom that comes with hindsight . Their conduct in making a warrantless search must be judged by the circumstances confronting the officers at the time they act.”). Specifically, factors to be considered are 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 co mmunity caretaker function. Waters , 20 Va. App. at 290, 456 S.E.2d at 530. In the case at bar, evidence supported the tr ial court’s implicit findi ng that each of these factors was satisfied. It is clear that Officer Davis and Detectiv e Story were in the process of investigating a burglary when they arrived at Kyer’s home. Ho wever, given the circumstances presented at the time the officers approached Ky er’s front door, the officers’ warrantless entry into the home was justified pursuant to the comm unity caretaker exception. In particular, the burglary that the officers were i nvestigating had occurred only a fe w hours before they arrived at Kyer’s home. The officers arrived there at 4: 00 a.m., a time when conditions were dark and rainy. Yet, the front door to Kyer’s home stood open – wide e nough so that the officers could walk through it without touching the door. No lights were on in the home, and no sounds were heard by the officers. As Detective Story testif ied, the officers announced their presence loudly, several times, and after receivi ng no answer they entered the home for the limited purpose of determining whether anyone was in the home an d whether those persons were in need of assistance. We find no error in the trial cour t’s determination that these officers, under the totality of the circumstances presented at the tim e, reasonably believed that persons in the home might be in need of immediate assistance and that their limited entry was necessary. Further, the evidence in the r ecord supports the trial court’s factual determination that the officers’ reason for entering the home was not pr etextual and was unrelated to their initial purpose of investigating the burglary. Indeed, up on entering the home, the officers limited their- 14 - search for persons inside the home who might be in need of assistance. Once they determined that no person was in need of assistance, they ga thered in the living room with Kyer’s mother and brother to explain the purpose for their presen ce. The officers did not proceed to search the home. In fact, it was only after the officers expl ained their presence to Kyer’s mother that they requested to search the home for the stolen items. And, it was only after Kyer’s mother granted her consent that the officers proceeded to search the home for the items at issue. See Schneckloth v. Bustamonte , 412 U.S. 218, 222 (1973) (“[A] search authorized by consent is wholly valid.”). Considering the totality of these circumstances - most im portantly, the trial court’s factual finding that the actions of the officers here were not pretextu al - we find that the officers’ warrantless entry into the residence was constitu tionally permissible pursuant to the community caretaker exception to the warrant requirement. B ecause we have found the officers’ initial entry into the home was lawful pursuan t to the community caretaker exception, we need not address Kyer’s alternative argument that his mother’s c onsent was “vitiated as a result of the illegal, warrantless entry.” 5 We, likewise, need not address the Commonwealth ’s contention, made

5 Kyer’s Statement of The Questions Presen ted frames this issue as whether the “trial court err[ed] in ruling that, even if the warrantle ss entry/search of the Appellant’s residence was excepted under the community caretaking doctrine, the subsequent consent to search given by Appellant’s mother was valid.” In keeping with this argument, Kyer contended below, “I think another issue here, Judge, is whether or not under those circumstances a person can give a voluntary, uncoerced kind of consent.” Neverthe less, in his brief on ap peal, Kyer argued only that Kyer’s mother’s consent was invalid as a result of the initial “ill egal” entry by the police officers. Kyer did not argue that the officers’ entry into the ho me, regardless of its legality, necessarily affected the voluntary nature of his mother’s consent. Thus, given that Kyer now argues on appeal only that the cons ent was the “fruit of the poisonous tree” of the “illegal” entry, and having found that the entry wa s proper under the community caretaker doctrine, we need not address the issue of the valid ity of the consent further.- 15 - during oral argument, that the trial court actual ly intended to base its holding on the “emergency doctrine,” but mistakenly stated “community caretaker and/or exigent circumstances.” For the above-stated reasons, we affirm the judgment of the circuit court. Affirmed.