COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued by Teleconference 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION* BY 

v. Record No. 1523-97-1 JUDGE JOSEPH E. BAKER 

 NOVEMBER 21, 1997 

LARRY S. BAUMGARDNER 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Alan E. Rosenblatt, Judge 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Richard Cullen, Attorney General, on 

brief), for appellant. 

 Joseph A. Migliozzi, Assistant Public 

Defender, for appellee. 

 In this appeal by the Commonwealth from the Virginia Beach 

Circuit Court (trial court), the sole issue presented is whether 

the trial court erred when it granted Larry S. Baumgardner's 

(defendant) motion to suppress the evidence discovered by the 

Virginia Beach police after their warrantless entry into 

defendant's home. For the reasons hereinafter stated, we reverse 

the judgment of the trial court. 

 Defendant was indicted for "cultivat[ing] Marijuana, not for 

personal use," in violation of Code § 18.2-248.1 and obstructing 

justice in violation of Code § 18.2-460. 

 The Commonwealth contends that the trial court erroneously 

held that the community caretaker doctrine did not permit the 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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officers' warrantless entry of defendant's home. In addition, it 

contends that, even if the initial entry violated the Fourth 

Amendment, the marijuana was discovered by an independent source, 

making it admissible despite the illegal entry, and that the 

trial court's ruling to the contrary was erroneous. 

Background

 On the evening of June 11, 1995, Virginia Beach Police 

Officer Christopher Mras received a computer dispatch to assist 

Heather Burton with a dispute. Mras and Officer Robert Hillers 

met Burton at a gas station, where she told them that she wanted 

assistance in getting her belongings out of the home in which she 

had worked as a live-in nanny. Her employer, defendant, had 

fired her that day and had not allowed her to remove her 

belongings. 

 Burton told the officers that she was afraid to go to 

defendant's house alone because he had threatened her and was 

becoming violent. Burton bore no signs of physical abuse, but 

Mras was convinced that Burton's fear of violence was reasonable. 

 Mras based this belief on an encounter he had had with defendant 

six months to a year earlier when defendant had attempted suicide 

and Mras had been dispatched to his home.1

 Burton also told Mras that she had "seen some illegal drugs 

in the house that day" and told Hillers that, "a few days 

 

 1Defendant attempted to inhale carbon monoxide and then bug 

spray and became violent when Mras broke into his house to stop 

him. 
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before," defendant had said that he had marijuana plants on the 

back porch. 

 Police Sergeant J. B. Spry joined the group at the gas 

station, and they followed Burton to defendant's two-story home. 

 When defendant responded to the knock on his door, the officers 

explained that they were there only "to keep the peace, make sure 

nothing happens, that no argument gets out of hand resulting in 

violence or any other type of altercation" while Burton retrieved 

her property. Defendant confirmed that Burton had resided in his 

house. He was "hostile" and "extremely belligerent" toward them, 

which led Officer Hillers to conclude that "if we were not 

there[,] there might have been a physical confrontation between 

[defendant] and [Burton]." When the officers requested entry, 

defendant allowed Burton to enter, but "was very adamant about 

[the police] not going into the house." Because Burton was 

afraid to go in by herself, the officers entered in order to 

protect her. At some point prior to their entry, Officers Mras 

and Hillers notified Spry that Burton had reported seeing 

narcotics in the house. However, Spry and Hillers testified that 

the officers' sole purpose in going into the house was to help 

Burton retrieve her belongings safely. 

 Inside, Officers Mras and Hillers remained on the ground 

floor and helped Burton remove her property from the ground floor 

bedroom she had occupied. Officer Spry waited near the front 

door. When Burton returned from retrieving her daughter's toys 
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and personal effects from the second floor, she told Officers 

Spry and Hillers that she had seen what she thought were 

marijuana plants in an upstairs attic closet area. She stated 

that she had taken a drug awareness course enabling her to 

identify the marijuana. Officer Spry then told defendant that he 

had reason to believe there were illegal substances in the house 

and asked for permission to search, but defendant refused 

consent. Spry then sent Hillers to obtain a search warrant and 

informed defendant and his wife that the officers would have to 

monitor the couple's movements to prevent the possible 

destruction of evidence while awaiting the warrant. 

 Defendant left the house, went jogging, returned and called 

his attorney. He then barricaded himself in the garage without 

police opposition. When the officers saw him dig a hole in the 

ceiling of the garage and saw his legs dangling from the ceiling, 

they believed that he might be attempting to reach the contraband 

on the second floor. To prevent the destruction of evidence, 

Officers Spry and Mras went upstairs, where they found defendant 

on his hands and knees stuffing marijuana plants inside his shirt 

and under the insulation in the attic. They secured defendant, 

and when the search warrant arrived, they retrieved the marijuana 

plants under the insulation and placed defendant under arrest. 

 In granting defendant's motion to suppress, the trial court 

concluded that "[t]he entry of the police and of Miss Burton into 

[defendant's] house was not legal." It found that defendant had 
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denied the officers' request to enter the house and that the 

officers' belief that Burton had either common authority over or 

"a sufficient relationship to" the premises to validly consent to 

their entry was not objectively reasonable. It noted that 

exigent circumstances did not permit the initial entry of the 

premises because Burton could have regained her property without 

violence by pursuing her civil remedies. It also held that the 

evidence was barred as derivative of the illegal entry--"the 

fruit of the poisonous tree"--and did not fit any of the 

exceptions for admissibility. Finally, however, it found that 

the officers' entry to protect Burton was not pretextual, but 

nevertheless rejected the argument that the entry was justified 

under the "community caretaker exception" to the warrant 

requirement. Although it acknowledged application of the 

doctrine "when there's an emergency situation where the police 

have a duty to act," it found that "any emergency which existed 

in this case was, in fact, created by the police conduct because 

if they had not gone to the premises, there would have been no 

confrontation between Miss Burton and [defendant]." 

 In reviewing the trial court's ruling on a motion to 

suppress, "[t]he burden is upon [appellant] to show that th[e] 

ruling, when the evidence is considered most favorably to the 

[party prevailing below], constituted reversible error." Fore v. 

Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980). 

Questions of reasonable suspicion and probable cause to make a 
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warrantless search are subject to de novo review on appeal. See

McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 

(1997) (en banc). "In performing such analysis, we are bound by 

the trial court's findings of historical fact unless 'plainly 

wrong' or without evidence to support them[,] and we give due 

weight to the inferences drawn from those facts by resident 

judges and local law enforcement officers." Id. at 198, 487 

S.E.2d at 261. 

Police As Community Caretakers

 The community caretaker doctrine permits the police to 

"'engage in . . . community caretaking functions, totally 

divorced from the detection, investigation, or acquisition of 

evidence relating to the violation of a criminal statute.'" 

Commonwealth v. Waters, 20 Va. App. 285, 289, 456 S.E.2d 527, 529 

(1995) (quoting Cady v. Dombrowski, 413 U.S. 433, 441 (1973)). 

This doctrine recognizes that 

 the duty of the police embraces the function 

of maintaining public order and providing 

necessary assistance to persons in need or 

distress. An officer who harbors a 

reasonable and articulable suspicion, based 

upon observed facts or a credible report, 

that a citizen is in distress or in need of 

assistance, may lawfully effect an 

appropriately brief and limited seizure for 

the purpose of investigating that suspicion 

and rendering aid. 

Id. (citation omitted). 

 Although the doctrine was originally applied in a case 

involving a motor vehicle, we held in Waters that "an officer's 
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community caretaking functions are not limited solely to 

automobile stops." Id. at 291, 456 S.E.2d at 530. In 

determining whether appropriate circumstances for a warrantless 

entry exist, a court must consider "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." Id. at 290, 456 S.E.2d at 530. 

 In this case, defendant concedes that the officers' presence 

on his front porch was lawful but maintains that the trial court 

correctly held that the entry of both Heather Burton and the 

officers into his home was unlawful. We disagree. Under the 

rationale of the Fifth Circuit Court of Appeals in United States 

v. York, 895 F.2d 1026 (5th Cir. 1990), we hold that the 

community caretaker doctrine permitted the entry, and we reverse 

the trial court's ruling suppressing the evidence. In York, a 

man named Bill2 and his children had been living as guests, by 

invitation, in York's house. Id. at 1027. When the belligerent 

and intoxicated York threatened the live-in guests, they obtained 

police assistance to reenter the house, remove their belongings, 

and leave permanently. Id. at 1027-28. While on the premises 

assisting and protecting Bill and his family, one officer saw 

suspected illegal firearms in plain view. Id. at 1028. After 

 

 2The opinion in York identifies "Bill" only by first name. 

See 895 F.2d at 1027. 
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Bill had finished removing his family's belongings, the officers 

left but reported seeing the firearms to the Federal Bureau of 

Alcohol, Tobacco and Firearms, which conducted an additional 

investigation, obtained a search warrant and eventually arrested 

York. Id.

 The Fifth Circuit upheld the officers' warrantless entry of 

York's house as a community caretaker function. Id. at 1030. It 

considered first whether the officers' activity "intrude[d] upon 

a reasonable expectation of privacy in such a significant way to 

make the activity a 'search.'" Id. at 1028. It acknowledged 

that "'searches and seizures inside a home without a warrant are 

presumptively unreasonable,'" id. at 1029 (quoting Payton v. New 

York, 445 U.S. 573, 586 (1980)), but noted that one's 

"expectation [of privacy in the home] . . . can be reduced as a 

result of the activities of the home's occupants." Id. The 

Court in York reasoned that: 

 because Bill and his children were guests, 

invited to live for a time in York's home, 

the threatening actions of York combined with 

this permitted occupancy to make it 

reasonable for Bill to enlist the aid of the 

police in removing from York's premises 

possessions that were incidents to his 

family's daily life. York's threats of 

violence to Bill and his children made it 

foreseeable that Bill would seek help in 

removing his possessions . . . . When York 

invited Bill and his family to share his 

residence, he necessarily invited the normal 

incidents of joint occupancy, including the 

introduction of property which belonged to 

Bill which Bill retained the right to remove 

when his invitee status ended. Likewise, 

when York became intoxicated and belligerent, 

it was reasonable to expect that Bill might 
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ask police officers to make a limited entry 

into the house to keep the peace while he 

removed his family and personal possessions. 

Id. at 1029-30 (emphasis added). In light of the community 

caretaker basis for entry, the court held irrelevant whether the 

guest had the authority to give valid consent for an entry and 

search of the premises. Id. at 1030. 

 Here, Heather Burton had a right to remove her belongings 

when her status as defendant's live-in nanny ended. Defendant 

showed signs of hostility and belligerence, and Officer Mras was 

aware of defendant's past violent tendencies. Therefore, it was 

reasonable for Burton to ask the officers to accompany her to 

keep the peace while she removed her belongings. Before 

entering, the officers confirmed that Burton had been defendant's 

employee and explained to defendant the reason for their entry, 

and the evidence shows that the officers' sole purpose in 

entering defendant's home was to assist Burton. The trial court 

expressly found that the entry was not pretextual. We hold, 

therefore, that the community caretaker doctrine permitted the 

officers' entry of defendant's home for the limited and 

objectively reasonable purpose of helping Burton remove her 

belongings. 

Independent Source

 We further hold that Heather Burton's discovery of the 

marijuana in the upstairs attic closet did not come about because 

of "exploitation" of the alleged illegal entry. Defendant 
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conceded on oral argument that the police officers did not 

violate his rights by standing on his front porch and asking his 

permission for entry. It was at this time that defendant 

consented to Burton's entry, and the record contains no evidence 

that defendant's consent for Burton's entry was involuntary or 

coerced. 

 Defendant argues that the marijuana should not be admitted 

as evidence because its discovery was "fruit of the poisonous 

tree," that is, of the alleged illegal entry of the premises by 

the police. The courts have recognized "three limitations to the 

'fruit of the poisonous tree' doctrine, namely: (1) evidence 

attributed to an independent source; (2) evidence where the 

connection has become so attenuated as to dissipate the taint; 

and (3) evidence which inevitably would have been gained even 

without the unlawful action." Warlick v. Commonwealth, 215 Va. 

263, 266, 208 S.E.2d 746, 748 (1974). Even if the police had 

remained on the porch as the defendant concedes they had the 

right to do, Burton, who had been given permission to enter the 

house, would have discovered the marijuana and confirmed to the 

police that marijuana was present in the house. Once inside the 

house, the officers appropriately confined their movements to the 

first floor of the residence. It was Burton, an independent 

source, who found defendant's marijuana plants in a second floor 

attic closet while retrieving her belongings. 

Seizure of the Marijuana
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 After confirming the basis for Burton's knowledge that the 

plants were marijuana, the police had probable cause for a search 

warrant and properly secured the scene while obtaining a warrant 

in order to prevent the destruction of evidence. See, e.g., 

Crosby v. Commonwealth, 6 Va. App. 193, 199, 367 S.E.2d 730, 734 

(1988). They allowed defendant to move freely in and out of the 

house and around the first floor and remained on the first floor 

themselves until exigent circumstances required their immediate 

action. See Keeter v. Commonwealth, 222 Va. 134, 141, 278 S.E.2d 

841, 846 (1981) (holding that "an exigent circumstance exists 

justifying [a warrantless] entry where the law enforcement 

officers have probable cause to believe that it is necessary to 

prevent the destruction of evidence"). Defendant barricaded 

himself in the garage without police opposition, but when the 

officers saw him dig a hole in the ceiling of the garage and saw 

his legs dangling from the hole, they properly concluded that he 

was attempting to reach the marijuana plants on the second floor 

in order to hide or destroy evidence. When they rushed to the 

second floor and found defendant in the attic closet trying 

frantically to hide the marijuana plants, they acted properly in 

preventing the further destruction of evidence until the search 

warrant arrived. See Crosby, 6 Va. App. at 199, 367 S.E.2d at 

734. 

 Under these facts, we hold that the community caretaker 

doctrine permitted Burton's and the officers' initial entry into 
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the home, and on Burton's independent discovery, the officers had 

probable cause to seek a search warrant and to secure the home 

pending arrival of that warrant. Finally, exigent circumstances 

permitted the officers to enter the second floor of the home and 

secure defendant and the marijuana pending the arrival of the 

search warrant. As a result, we reverse the trial court's 

suppression of the evidence and remand for such further 

proceedings as the Commonwealth may be advised consistent with 

this opinion. 

 Reversed and remanded.