COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Fitzpatrick 

Argued at Alexandria, Virginia 

COMMONWEALTH OF VIRGINIA 

v. Record No. 2337-94-4 OPINION BY 

 JUDGE JOHANNA L. FITZPATRICK 

TYRONE EDGAR WATERS MAY 2, 1995 

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY 

Thomas D. Horne, Judge 

 Kathleen B. Martin, Assistant Attorney General (James S. 

 Gilmore, III, Attorney General, on brief), for appellant. 

 Lorie E. O'Donnell, Assistant Public Defender, for appellee. 

 Tyrone Edgar Waters (appellee) was indicted for possession 

of cocaine in violation of Code § 18.2-250 and possession of a 

firearm while in possession of cocaine in violation of Code 

§ 18.2-308.4. Appellee filed a motion to suppress the gun, the 

cocaine, and his statements because the police officer seized him 

without reasonable suspicion of criminal activity. The trial 

court granted the suppression motion, and the Commonwealth 

appeals that ruling pursuant to Code § 19.2-398(2).1

 On appeal, 

 1Code § 19.2-398 provides, in pertinent part, that: 

 A petition for appeal from a circuit court 

may be taken by the Commonwealth only in felony 

cases . . . from: 

* * * * * * * 

 2. An order of a circuit court prohibiting 

the use of certain evidence at trial on the 

grounds such evidence was obtained in violation of 

the provisions of the Fourth, Fifth or Sixth 

Amendments to the Constitution of the United 

States or Article I, Sections 8, 10 or 11 of the 

Constitution of Virginia. 
 2 

the Commonwealth argues that: (1) the stop of appellee did not 

constitute a fourth amendment seizure, and (2) even if appellee 

was seized, the stop was valid as a community caretaker function 

under Barrett v. Commonwealth, 18 Va. App. 773, 447 S.E.2d 243 

(1994) (en banc). We hold that the initial stop was a reasonable 

exercise of the officer's community caretaker function and that 

the drugs and gun were appropriately seized. 

 BACKGROUND

 On March 8, 1994 at 10:15 p.m., Detective Ricky Frye (Frye) 

of the Leesburg Police Department was patrolling an apartment 

complex. He saw appellee swaying and walking unsteadily. 

Appellee appeared to be intoxicated or ill. Frye was concerned 

for appellee's safety, followed him, and tapped him on the 

shoulder. Frye told appellee that he was concerned for 

appellee's safety and that he wanted to make sure appellee could 

find his way home. 

 During the initial encounter, Frye smelled a strong odor of 

alcohol on appellee, who then made threatening gestures and 

statements to Frye. Frye saw a bulge on appellee's left side 

and, because appellee was acting violently, asked if he could 

search him for safety reasons. Appellee immediately pulled his 

pants pockets inside out and consented to the search. Frye's 

pat-down revealed a BB gun and a corncob pipe with an odor of 

marijuana. Frye arrested appellee and read him his Miranda

rights. Appellee admitted using the pipe to smoke marijuana. 
 3 

The police tested the corncob pipe and found cocaine residue. 

 In a pretrial motion, appellee moved to suppress the gun, 

the pipe, and his statements to Frye as being the products of an 

unlawful stop. In a November 2, 1994 letter opinion, the trial 

court granted appellee's suppression motion and found that: (1) 

the community caretaker exception of Barrett was limited to 

automobile stops, and (2) appellee was improperly seized within 

the meaning of the fourth amendment because a reasonable person 

would not have felt free to leave when approached by the officer. 

COMMUNITY CARETAKER EXCEPTION

 The Commonwealth argues that Frye's stop of appellee was 

justified because he was "in the routine execution of community 

caretaking functions, totally divorced from the detection or 

investigation of crime." Barrett, 18 Va. App. at 776, 447 S.E.2d 

at 245. Frye was an officer performing the legitimate role of 

the police to aid those who reasonably appear to be in distress 

or need assistance. Appellee argues that the community caretaker 

exception of Barrett is limited solely to automobile stops, and 

that, even if it is applicable in other contexts, this stop was 

unreasonable. Assuming without deciding that appellee was seized 

by Frye, we agree with the Commonwealth that, under these facts, 

Frye's initial contact with appellee was valid as a reasonable 

community caretaker action. 

 The United States Supreme Court first adopted the community 

caretaker doctrine in Cady v. Dombrowski, 413 U.S. 433 (1973). 
 4 

The Supreme Court held as follows: 

 Local police officers, unlike federal 

officers, frequently investigate vehicle 

accidents 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, investigation, 

or acquisition of evidence relating to the 

violation of a criminal statute. 

Id. at 441. In Barrett, this Court relied on Cady and 

held that "officers may conduct investigative 

seizures in the routine execution of 

community caretaking functions, totally 

divorced from the detection or investigation 

of crime, so long as those seizures are 

reasonable." 18 Va. App. at 776, 447 S.E.2d 

at 245. [T]he 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. at 778, 447 S.E.2d at 246. 
 5 

 While many cases interpreting the community caretaker 

function involve application of the exception to police contact 

with motor vehicles, no language in Barrett or Cady restricts an 

officer's community caretaking actions to incidents involving 

automobiles. See id. at 776-78, 447 S.E.2d at 245-46; Cady, 413 

U.S. at 439-47. As noted in Barrett, "[o]ther jurisdictions have 

acknowledged that the duty of the police extends beyond the 

detection and prevention of crime, to embrace also an obligation 

to maintain order and to render needed assistance," 18 Va. App. 

at 777, 447 S.E.2d at 245, and have addressed the community 

caretaker doctrine in contexts other than automobile stops. See

State v. Dube, Nos. 7156, YOR-94-547, 1995 WL 87533 (Me. Mar. 1, 

1995); State v. Menz, 880 P.2d 48 (Wash. Ct. App. 1994), review 

denied, 890 P.2d 463 (Wash. 1995). 

 In Dube, a custodian requested the police to accompany him 

into the defendant's apartment to verify that the custodian only 

fixed a leak. 1995 WL 87533, at *1. There was no prior 

indication of any criminal conduct, but once in the apartment, 

the officers saw evidence of child abuse and neglect in plain 

view. Id. The Supreme Judicial Court of Maine held that the 

officers were lawfully in the apartment as part of their 

community caretaking functions "totally divorced from the 

detection, investigation, or acquisition of evidence relating to 

the violation of a criminal statute." Id. at *2. The court 

noted that "a police officer has a 'legitimate role as a public 
 6 

servant to assist those in distress and to maintain and foster 

public safety.'" Id. (quoting State v. Pinkham, 565 A.2d 318, 

319 (Me. 1989)). It would be illogical to allow the police to 

render assistance to a convulsing man in a car while denying this 

same assistance to a man on the street. 

 The appropriateness of applying the community caretaker 

doctrine to a given factual scenario is determined by whether: 

(1) the officer's initial contact or investigation is reasonable; 

(2) the intrusion is limited; and (3) the officer is not 

investigating criminal conduct under the pretext of exercising 

his community caretaker function. Police officers have an 

obligation to aid citizens who are ill or in distress, as well as 

a duty to protect citizens from criminal activity. The two 

functions are unrelated but not exclusive of one another. 

Objective reasonableness remains the linchpin of determining the 

validity of action taken under the community caretaker doctrine. 

 No seizure, however limited, is a valid exercise of the 

community caretaking function if credible evidence indicates that 

the stop is a pretext for investigating criminal activity. A 

separate opinion in Barrett, concurring with the adoption of the 

doctrine but finding the facts there insufficient to warrant its 

application, warned that "[t]he 'community caretaking' exception 

should be cautiously and narrowly applied in order to minimize 

the risk that it will be abused or used as a pretext for 

conducting an investigatory search for criminal evidence." 18 
 7 

Va. App. at 780, 447 S.E.2d at 247 (Coleman, J., dissenting). 

The trial judge in this case specifically did "not question the 

motives of Detective Frye." In State v. Fry, 831 P.2d 942 (Idaho 

Ct. App. 1991), the Court of Appeals of Idaho determined that the 

police officers were not exercising their community caretaker 

function when they seized a truck parked in a parking lot. Id.

at 946. The court noted that: (1) neither officer "entertained 

any belief that Fry needed police assistance, nor did they 

perceive a medical emergency or other exigency compelling their 

immediate action," and (2) the officers' "purpose in encountering 

Fry was related to their subjective suspicions of Fry's presence 

and his possible connection with . . . recent burglaries." Id. 

We agree that credible evidence of pretext or subterfuge will 

invalidate a stop made under the guise of the community 

caretaking exception. 

 We hold that an officer's community caretaker functions are 

not limited solely to automobile stops and that, under the facts 

present in this case, Frye's actions were a reasonable exercise 

of that duty. If a police-citizen encounter is based upon an 

objectively reasonable belief that aid or assistance is warranted 

and contraband or other evidence of crime is discovered incident 

to the lawful performance of an officer's duties, the officer 

need not ignore that which is discovered. Frye observed appellee 

staggering late at night, and based on this observation, Frye had 

a reasonable suspicion that appellee was intoxicated, ill, or in 
 8 

need of help. Frye's initial contact with appellee was brief and 

limited to voicing his concern and making a determination whether 

appellee was in distress. While attempting to determine if 

appellee was ill, Frye smelled alcohol, and appellee made 

threatening gestures and statements. The nature of the encounter 

then changed, and Frye, seeing a bulge on appellee's left side, 

reasonably believed that a pat-down search for weapons was 

necessary for his safety. See Terry v. Ohio, 392 U.S. 1, 30 

(1968). 

 For the foregoing reasons, we reverse the trial court and 

remand for trial. 

 Reversed.