COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Huff, Judges Petty and Alston Argued at Chesapeake, Virginia

GREGORY L. ALLEN SPAULDING MEMORANDUM OPINION  BY v. Record No. 0394-15-1 JUDGE ROSSIE D. ALSTON, JR. FEBRUARY 9, 2016 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Timothy S. Fisher, Judge Robert Moody, IV, Chief Deputy Pub lic Defender, for appellant. Aaron J. Campbell, Assistant Atto rney General (Mark R. Herring, Attorney General, on brief), for appellee.

Gregory Spaulding (appellant) appeals the tria l court’s denial of his motion to suppress and his conviction of possession of cocaine ba sed upon his conditional pl ea of guilty entered pursuant to Code § 19.2-254. Specifically, appellant argues that the trial court erred by denying his motion to suppress because “the search of the dollar bill [found in appellant’s pants] violated [appellant’s] Fourth Amendment rights.” We agr ee with appellant that the trial court erred by denying appellant’s motion to suppress and ther efore reverse his conviction and dismiss the charge against appellant.

 Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - I. Background 1

This case was submitted to the trial court and th is Court on stipulated facts. No evidence was presented or admitted at the hearing on appella nt’s motion to suppress. The stipulated facts indicate that on November 2, 2013, Officer Stephens of the Ne wport News Police Department responded to a call of shots fired and found the vic tim, appellant, who had been shot in the leg. Officer Stephens rode in the back of an ambulan ce with appellant to the hospital. In order to attend to his leg wound, the paramedics removed appellant’s pants in the ambulance and handed them to Officer Stephens. Officer Stephens chec ked the pants’ pockets, purportedly to check for appellant’s identification, and f ound several items, including an id entification card for appellant and a folded-up piece of paper money. Officer Stephens unfolded what turned out to be a five-dollar bill and inside found what he suspec ted to be and ultimately was confirmed to be powder cocaine. Appellant stat ed that he was conscious duri ng the ambulance ride and that therefore, a search of his pants for his identification was unnecessary. Appellant moved to suppress the cocaine, argu ing that it was found as the result of an illegal search because Officer Stephens had no au thorization to search hi s pants in the ambulance as appellant was conscious during the trip to th e hospital, that he was the victim and not a suspect of a crime, and that he had an e xpectation of privacy in the ambulance. The Commonwealth argued that Officer Stephens lawfully searched fo r appellant’s identification and that he conducted a proper i nventory search pursuant to Ne wport News policy for a crime victim’s personal effects when receiving medical treatment.

1 As the parties are fully conversant with the record in this ca se and because this memorandum opinion carries no precedential value, th is opinion recites only those facts and incidents of the proceedings as ar e necessary to the parties’ unders tanding of the disposition of this appeal.- 3 - The trial court denied appellant’s motion to suppress, finding that Officer Stephens had the right to look for identificati on in appellant’s pants’ pockets. Appellant subsequently entered a conditional plea of guilty to one count of po ssession of cocaine pursu ant to Code § 19.2-254. The trial court found appellant guilty and sentence d him to three years’ incarceration with all three years suspended for a period of five years. This appeal followed. II. Analysis When reviewing the denial of a motion to s uppress, “we will review the evidence in the light most favorable to the Co mmonwealth, the party prevaili ng below, together with all reasonable inferences that may be drawn. The burde n to establish that the denial of a motion to suppress constituted reversible error rests wi th the defendant.” Smith v. Commonwealth, 41 Va. App. 704, 712, 589 S.E.2d 17, 21 (2003) (quo ting King v. Commonwealth, 39 Va. App. 306, 308, 572 S.E.2d 518, 519 (2002)). “An accused’s claim th at evidence was seized in violation of the Fourth Amendment to the United States Constitution presents a mixed question of law and

fact that we review de novo on appeal.” Cauls v. Co mmonwealth, 55 Va. App. 90, 95, 683 S.E.2d 847, 849 (2009) (quoting Grandison v. Commonwealth, 274 Va. 316, 320, 645 S.E.2d 298, 300 (2007)). In determining whether a viola tion of an accused’s Fourth Amendment rights occurred, “we give deference to the factual findi ngs of the circuit court, but we independently determine whether the manner in which the evidence was obtained meets the requirements of the Fourth Amendment.” Id. at 95-96, 683 S.E .2d at 849 (quoting McCain v. Commonwealth, 275 Va. 546, 551-52, 659 S.E.2d 512, 515 (2008)).

The Fourth Amendment to the Fe deral Constitution provides that “the right of the people to be secure in their persons , houses, papers, and effects, ag ainst unreasonable searches and seizures, shall not be violated.” “Therefore, warrantless searches are per se unreasonable, subject to a few specifically established and we ll-delineated exceptions, Thompson v. Louisiana,- 4 - 469 U.S. 17, 19-20 (1984), and the Commonwealth has the hea vy burden of establishing an exception to the warrant requirement.” Megel v. Commonwealth, 262 Va. 531, 534, 551 S.E.2d 638, 640 (2001); Cauls, 55 Va. App. at 98, 683 S.E .2d at 850 (“the general rule [is] that warrantless searches and seizures are pr esumptively unreasonable” (quoting Harris v. Commonwealth, 241 Va. 146, 152, 400 S.E.2d 191, 195 (1991))). In the present case, the Commonwealth fail ed to provide any facts to support a

constitutional basis for the warra ntless search of appell ant’s pants’ pockets. The parties agreed to resolve the case on the merits, on a stipulated r ecord. This stipulated record is absolutely devoid of facts presenting any exception to th e warrant requirement applicable to Officer Stephens’s search of appellant’s pants’ pockets. In the cases cited by both parties on brief and relied upon by the trial court - Craft v. Commonwealth, 221 Va. 258, 269 S.E.2d 797 (1980), and Morris v. Commonwealth, 208 Va. 331, 157 S.E .2d 191 (1967), – the appellants were both suspects in crimes. In the present case, there is no evidence that appella nt was anything more than the victim of a gunshot wound. No contex t for the shooting, any i nvestigation into the shooting, or any other reason for Officer Ste phens’s presence in the ambulance was provided,

other than that he was attendi ng to the victim of a potential crime. Simply stated, the Commonwealth cannot overcome the presumption of unreasonableness of a warrantless search

based on the record before us. 2 Accordingly, we agree with ap pellant that Officer Stephens’s

2 The Commonwealth argues that Officer Ste phens conducted a lawful inventory search of appellant’s pants’ pockets pursuant to the community caretaker doctrine and in accordance with the Newport News Police Department’s Property and Evidence policy. Though the Commonwealth attached a portion of the policy to its written res ponse to appellant’s motion to suppress, the policy was not admitted into evidence a nd the record is insufficient for this Court to consider whether the policy appl ied under the circumstances, and if so, whether Officer Stephens acted properly in accordance with the policy. Furthermore, even if Officer Stephens act ed pursuant to the community caretaker doctrine when searching appellant’s pants’ poc kets, that action must be supported by (1) the officer’s contact being reasonable, (2) the intrusio n must be limited, and (3) the officer must not- 5 - search of his pants’ pockets was a violation of appellant’s Fourth Amendment rights. Having reached this conclusion, we need not address the other arguments presented by the parties. See Sanders v. Commonwealth, 64 Va. App. 734, 742 n.3, 772 S.E.2d 15, 19 n.3 (2015) (“An appellate court decides cases on the best and narrowest ground.” (citing Luginbyhl v. Commonwealth, 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) ( en banc )). Therefore, we hold that the tr ial court erred in failing to suppress the cocaine obtained as the result of this illegal search. Without the ab ility to present the cont raband recovered from the warrantless search, there is no evidentiary basis for the Co mmonwealth to maintain its prosecution. Accordingly, appell ant’s conviction for possession of cocaine is reversed and the charge is dismissed.

Reversed and dismissed.

be investigating criminal c onduct under a pretext of exercising his community caretaker function. Commonwealth v. Waters, 20 Va. App. 285, 290, 456 S.E.2d 527, 530 (1995). Moreover, actions taken pursuant to the comm unity caretaker function must be based on “reasonable and articulable suspicion . . . that a ci tizen is in distress or in need of assistance.” Barrett v. Commonwealth, 18 Va. A pp. 773, 778, 447 S.E.2d 243, 246 (1994), rev’d on other grounds, 250 Va. 243, 462 S.E.2d 109 (1995). The record in the instant case satisfies none of the required factors.