*1 Thе evidence that Wileman sold the Moores car he paid legal had not for and for which he did not have title is court’s finding sufficient to sustain the trial that Wileman had Likewise, the evidence requisite intent to defraud. car, gave ownership the Moores of which Wileman $600 transfer, he could not is that fraud legally proof sufficient actually occurred. The evidence that issued re Wileman to the car and he ceipt Moores for the decéived them supports the status of the cаr’s title regarding adequately finding accomplished larceny trial court’s Wileman’s pretenses pretenses false that such were the by by means which the Moores were induced with their part $600. we grand affirm Wileman’s conviction for lar- ceny pretenses. false
Affirmed. WOOD, Arthur
Calvin Jr. Virginia. COMMONWEALTH No. 0605-96-2. Appeals Virginia, Court
Richmond. 6,May 3, 1997. Rehearing En Banc Granted June *3 Maus, Louisa, appellant. R. for John (James Witmer, S. Attorney A. Assistant General Steven General, brief), Gilmore, III, appellee. Attorney JJ„ COLE, ANNUNZIATA, and BENTON and Present: Judge. Senior
ANNUNZIATA, Judge. Wood, Jr., convicted of four Arthur Calvin
Appellant, firearm, and cocaine involving possession offenses trial court erred contends the marijuana. appeal, he On and affirm his disagree suppress. motion to We denying his convictions.
I. appeared wife night question, appellant’s On Office, bleeding face from an County Louisa her Sheriffs Hicks and injury appellant. deputies, she attributed to Two Gholson, to Stanley, responded appellant’s trooper, and state earlier, days appellant’s A teen- investigate. residence few the officers stepson reported missing. had been When age home, appellant’s responded appellant’s believed stepson missing. remained arrival, them into his officers’ invited
Upon appellant four, children, ages two three Appellant’s house. did room. and the officers asleep living Appellant occupants other only discuss whether those children were the through living men proceeded the house. four thereafter, where, immediately room the kitchen almost appellant was arrested. transported Hicks office; Stanley remained to look after sheriffs Gholson the children. representa-
The sheriffs office contacted a social services Solomon, tive, thirty who arrived at house within appellant’s Meanwhile, Stanley minutes. remained in forty Gholson kitchen, asleep on the periodically checking children living room. After left adjacent Solomon children, Stanley thrоugh looked with Gholson and floor, which including remainder of the in a opening a door located third room reached flight of stairs. ascending *4 Stanley and had entering appellant’s
Before Gholson through window. Both light shining a second floor noticed the first that had been on floor appellant officers believed arrived, after because answered the door soon they when he coming from any knocked. Neither officer heard noise they floor, Stanley he noticed foul smell the second but stated they went somewhere. Gholson testified that coming from residence, make there was sure secure upstairs “[t]o he Stanley testified that and nobody there.” likewise else make sure there was “just Gholson wanted to check and else, Stanley and nobody anything.” no kids Both Gholson they specifically looking appellant’s testified that were to missing they thought Both also not stepson. testified had leave. check the of the house until were to preparing rest in upstairs, plain Once the officers observed view some At that support to appellant’s evidence used convictions. time, containers; not any officers did cabinets or open instead, office a search they returned the sheriffs to obtain station, and were warrant. Back at Gholson Hicks process support an affidavit of a search preparing were warrant based on Gholson’s observations when informed to a further search of that consented consent, his house. returned to appellant’s Based Hicks the house oversee the of additional search seizure support appellant’s evidence convictions. used The trial court found that “the intrusion of the officers 2nd as the [appellant’s] justified floor of the residence was carrying officers out their duties as caretak- it appellant’s suppress. ers.” denied motion to
II. dispositive issue this case is whether threshold entry justify the officers faced circumstances sufficient floor of home.1 appellant’s into search lawful, entry if dispute was Appellant does seized and properly evidence his convictions was support if concedes admitted into evidence. The Commonwealth unlawful, all was tainted the seized evidence appellant’s convictions. support inadmissible to Amend forth the Fourth “The ultimate standard set Dombrowski, v. 413 U.S. ment is reasonableness.” Unreasonable L.Ed.2d are not those which prohibited, are but searches and seizures Commonwealth, Verez “reasonable in the circumstances.” dispute entry into the officers’ initial We note is no there was lawful.
659 denied, (1985), 405, 410, 479 cert. 230 Va. 337 S.E.2d 752 (1986). 21 Warrantless 813, 107 93 L.Ed.2d U.S. S.Ct. unrea presumed are to be entries and warrantless searches sonable, prove the burden to and the Commonwealth bears id.; 12 justification. Ealy, v. Va. E.g., Commonwealth 744, 751, 686 App. case, officers’
In the trial court found the present justified under the floor of home appellant’s Waters, v. Commonwealth community caretaker doctrine. Seе (1995); 285, 456 527 Barrett Common- 20 S.E.2d Va.App. (1994) (en banc), wealth, rev’d 243 Va.App. S.E.2d (1995).2 Point- grounds, on other 250 Va. S.E.2d missing stepchild, of appellant’s to the officers’ ing knowledge window, floor unusual the second light shining through beating of appellant’s apparent permeating smell the last to leave wife, that the officers were his and the fact home, that we should argues the Commonwealth ruling. agree.3 trial court’s We uphold the to enter [Qjuite clearly police premises have occasion police ... variety purposes. a warrant for of without in addition to “complex perform have tasks multiple committing serious identifying apprehending persons offenses”; default, the are also police by design criminal of for the commission opportunities to “reduce the expected patrol and other mea- through preventive some crimes harm,” are in of sures,” danger physical “aid individuals who themselves,” for “resolve who cannot care “assist those Barrett, Supreme did reversing held that the evidence In Court 2. police suspicion” Barrett was in need of support a "reasonable adoption Supreme this Court’s Court did not rule on assistance. The 247-48, Va. 462 S.E.2d at caretaker doctrine. 112. appellant’s appeal is barred on The Commonwealth’s contention argue grounds caretak- procedural for failure to brief or argues had no fails to consider that er doctrine and, specifically, the second floor his basis to enter entry. missing basis searching child was not sufficient for the decision, and we clearly argues trial court’s Appellant the basis appeal procedural grounds. find reason to bar his no in the security
conflict,” feeling and maintain “create *6 emergency an other services on community,” “provide basis.” (1996). The and Seizure LaFave, § 6.6 at 389-90 Search
3 W. to such roles pursuant action undertaken police lawfulness of caretaking “community in the evaluated terms of is sometimes function,” Supreme Court by first discussed the United Statеs Dombrowski, 2523, 37 93 S.Ct. Cady in 413 U.S. (1973). search of Cady involved the warrantless 706 L.Ed.2d Waters, in this Barrett and later First an automobile.4 community caretaker Cady adopted the Court relied on warrantless, peo- of “seizures” justify investigative doctrine to believed to be reasonably a citizen purposes aiding of ple in distress. case, trial court’s this we affirm the the facts of
Under justify the doctrine to community the caretaker application of of the second search investigative into and warrаntless note that the doing, In so we floor of home. little, search, any, if entry and context of a warrantless circumstances between the Virginia law distinction exists community caretaker doctrine application the governing “emergency” excep- the of application and those governing privacy distinctions be- well-established Cady Court discussed 4. The affirming the reasonableness and residences in tween automobiles 439-42, 2527-29. Such 93 S.Ct. at case. 413 U.S. at the search in that distinctions, however, evaluating war- precluded courts from have not community caretaker premises under the entry and search of rantless function, LaFave, recognize we supra, n. and while at 390 see search of a automobile and the the search of an between distinction home, Cady analysis provide factors relevant to we find that certain First, “police had Court noted guidance here. automobile]” custody [disabled over the or control exercised a form and the investigating accident an automobile of their as a result automobile arrangements to have the inability to make driver’s disabled Second, 442-43, at 2528-29. 93 S.Ct. 413 U.S. at and stored. towed garage private police car towed to had the Court noted that the where, with in accordance was searched protect public, the trunk police believed of a revolver the the removal police procedure to assure Finally, the Court noted at 2529. Id. at to be there. “search,” a desire police were not motivated conducting Id. possible criminal behavior. incriminating evidence find Waters, 20 Va. requirement. Compare tion the warrant Barrett, 18 288-91, 529-30, Va.App. at App. at 456 S.E.2d 245-46, 776-79, Reynolds at v. Common at with S.E.2d (1990), wealth, 430, 436-37, 659, 662-64 Va.App. 388 S.E.2d Commonwealth, 31, 34-35, 441 Va.App. and Shannon v. 225, 226-27, reh’g, 19 449 S.E.2d Va.App. S.E.2d aff'd func caretaker We have defined beyond “extends duty tion of the to be that which police obli crime, also an prevention to embrace detection assistance.” order and render needed gation to maintain Barrett, Va.App. doctrine, to the war emergency exception like the
caretaker
of the fact
grounded
rant
is
consideration
requirement,
rendering
as
public,
owe “duties
such
[officers]
*7
harm,
the
reducing
of
danger
physical
aid to individuals
preventive
through patrol
of crimes
and other
commission
measures,
an
basis.”
emergency
and
services on
providing
Barrett,
778,
Reyn-
at
(quoting
18
at
447 S.E.2d
246
Va.App.
omitted)).
(сitation
olds,
436,
Va.App.
9
at
sary. Va.App. See 18 447 S.E.2d “Objective linchpin determining reasonableness remains of ” Waters, at validity Va.App. of action.... 20 [such] at Reynolds, 456 S.E.2d 388 S.E.2d Va.App. Cf. objective emergen- at 663-64 reasonableness test to (applying cy exception requirement). warrant
Determination of whether the officers had reasonable
suspicion
function in
exercise
caretaker
question
a mixed
law and
trial
volves
fact. The
court’s
upheld
fact will be
clear
findings
historical
absent
manifest error.
Reynolds, Va.App.
See
S.E.2d at
review
trial
application
664. We
de novo the
court’s
those
legal
suspicion.”
facts to the
standard of “reasonable
See
—
States,
U.S.-,-,
v.
Ornelas United
S.Ct.
That
In the find officers present we that the basis of their justify reasonable exercise *8 function, them to the second floor of caretaker which led enter responded appellant’s home.5 the officers appellant’s When recently to believe that had they appellant reason argues, agrees, the Appellant and the Commonwealth officers' 5. a justifiable case as search incident action in this is not extension of not be construed as an arrest. Our decision should Buie, Maryland See U.S. doctrine. (1990) adjoining place spaces immediately of (beyond L.Ed.2d 276 arrest, may sweep” premises upon "protective officers make a swept posing a suspicion an individuаl that the area harbors reasonable officers). to the threat missing. stepson was and that appellant’s his wife beaten through shining arrival, light noticed a the officers Upon their not was and determined a second floor window they when arrived. One floor of the house on the second in the coming odor from somewhere the noticed foul officers from coming noise any neither officer heard Although house. floor, presence not the preclude that alone wоuld be certain floor, and officer could on that neither someone were in the house. The officers anyone whether else was of appel- and welfare duty safety assure the assigned room of asleep living two children younger lant’s premises. Before house, and the last to leave they were rooms of the investigated remaining the officers leaving, missing stepson was certain that appellant’s house make or the house leaving anyone else behind thеre and to avoid their by concern guided unsecured. Because officers missing, investigation for the child believed to be reasonably they could places was limited to those where open any did not cabinets expect person; to find And, that the containers. the record is devoid of evidence pretext for the second floor was entry officers’ criminal conduct. investigation of floor, officers on the second the-
Lawfully present na view, in plain incriminating itеms discovered certain According to them. immediately apparent ture of which was met, subject and the items were ly, plain view rule Reynolds, Va.App. evidence. See seizure admissible Waters, 665; 291, 456 at Va.App. at S.E.2d S.E.2d are affirmed. appellant’s convictions
Affirmed.
BENTON, Judge, dissenting. by I the warrantless believe that
Because justified was not into floor of Wood’s residence the second function, I would reverse the caretaking” any “community suppress. the motion to judge denying trial decision Therefore, I dissent.
I. persons, to be secure right people “The houses, effects, and against unreasonable searches papers, ” Const, seizures, amend. IV. shall not be violated.... U.S. in a privacy Fourth Amendment the individual’s protects “The privacy In more variety settings. none is the zone unambiguous physi- clearly defined than when bounded ” v. New Payton cal dimensions of an individual’s home.... York, 1371, 1381-82, 63 L.Ed.2d 445 U.S. 100 S.Ct. “ of Fourth principle Well settled is the ‘basic ... inside a home without Amendment law5 searches Id. at рresumptively warrant are unreasonable.” (citation omitted). at 1380 S.Ct. Court, Supreme that the United States
Noting 439-42, 2523, 2527-29, Dombrowski, U.S. (1973), dis- privacy well-established L.Ed.2d 706 “discussed affirming automobiles and residences tinctions between case,” search reasonableness of the [automobile] Cady, In these distinctions. majority ignores nevertheless stated: Supreme Court regulation of motor vehicles
Because of the extensive with which a traffic, frequency because of the and also in an accident on or involved vehicle can become disabled contact involv- police-citizen the extent of public highways, than substantially greater police- automobiles will be ing contacts will in a or office. Some such citizen contact has may operator believe the the officer occur because statute, not be of many more will a criminal but violated officers, officers, unlike federal that nature. Local there is no accidents in which investigаte vehicle frequently what, of a for want liability engage of criminal claim caretaking term, as may be described better detection, investigation, functions, totally divorced from the of a to the violation relating of evidence acquisition criminal statute. between searches of
... constitutional difference and from vehi- and similar structures from houses seizures latter from the character ambulatory cles stems both *10 extensive, and often noncriminal and from fact that “рlain bring contact with automobiles will local officials crime, evidence, fruits, or instrumentalities of or view” of contraband. 441-42, 93 at 2528.
Id. at
S.Ct.
between
on the distinction
emphasis
Court’s
Supreme
strongly
an individual’s home
searches and searches of
vehicle
uphold
used to
caretaking
function
implies
community
an intrusion into
Cady
justify
the vehicle search
would
was verified when the
an individual’s home. This inference
stated,
Opperman,
428 U.S.
Court later
South Dakota v.
(1976),
367,
3096,
364,
3092,
This
drawn a distinction between
traditionаlly
Court has
Fourth
or offices in relation
automobiles and homes
and thus
automobiles are “effects”
Although
Amendment.
Amendment, Cady
of the Fourth
v. Dom-
within the reach
2523, 2527,
browski,
L.Ed.2d
[93
439
S.Ct.
37
U.S.
(1973),
have
examinations of automobiles
warrantless
706]
in which a search
a home or
circumstances
upheld
been
Lewis,
589 [94
office would not. Cardwell v.
U.S.
(1974);
2464, 2468-2469,
v.
L.Ed.2d 325]
S.Ct.
Dombrowski,
2527-2528];
supra,
[93
at 439-440
S.Ct.
S.Ct.
1979-
Maroney,
[90
Chambers
U.S.
1980,
By if intrusion into an individual’s upheld it involved an been home, I made that the the Court clear believe be a warrantless justify doctrine cannot used to caretaker I hold that the trial into a home. would intrusion entry into holding that the warrantless judge erred by the commu- justified residence was second floor Wood’s caretaker doctrine.6 nity Supreme searches Court has also circumscribed I believe that the requiring be the search to caretaker doctrine under the
II.
community caretaking
that the
doctrine
Assuming arguendo
warrantless
may
appropriate
justify
under
circumstances
residences,
majority’s
searchеs of
I
with the
assertion
disagree
a valid
that the search of the second floor of Wood’s home was
In
Court de-
Cady,
Supreme
exercise of that function.
“totally
“community caretaking
being
scribed
functions” as
detection, investigation,
acquisition
divorced from the
of a criminal statute.” See
relating
evidence
to the violation
in this
The search, pоlice reported went to the station and Wood’s wife to police promptly that had assaulted her. The went Wood assault. the investigate alleged residence to the When Wood’s arrived, house to discuss the they entered Wood’s police Wood, assault, police and took to the station. arrested Wood a worker at the house to wait for social Two officers remained children. After the social worker custody to take of Wood’s children, offiсers searched the second floor left with the the attic. arrest, the search was a direct result of Wood’s
Because the detection, investiga- “totally divorced from the search was not a tion, to the violation of relating of evidence acquisition The officers entered the residence criminal statute.” Id. employed and were still so investigation a criminal conduct the search. they began when procedure” designed police department’s upon a "standard
based Cady, police danger. 413 U.S. at protect public and the from the 369, 374-75, 2529; Opperman, U.S. at accord 93 S.Ct. at Indeed, Virginia Supreme has noted Court 3099-3100. incriminating admissibility Opperman "involved that inventorying police procedure of during a discovered standard evidence custody.” v. Com- properly Barrett been taken into property that had monwealth, None 250 Va. case. exists in this those factors upstairs officers went that the majority police suggests The offiсers teenager. Although the missing to search for had been son teenage they knew Wood’s wife’s testified that missing for the searching that were missing they reported Officer Gholson that assertion. juvenile, the evidence belies juvenile missing had family reported testified that Wood Nevertheless, the officers lived at residence.” [Wood’s] “that for residence they searching stated that were Wood’s searching they were juvenile. The that missing explanation dubious at that child’s own residence is missing for a child after the officers arrest- proved The also that best. evidence at approximate- him from the residence ed and removed Wood called a remained behind the two officers who ly midnight, living in the room. sleeping Two children were social worker. for the social the residence While the two officers waited arrive, Only teenager. not look they did worker they did with the other children worker left after social the search casts delay conducting begin search. were assertion doubt on officers’ additional Moreover, even if were juvenile. for the merely looking reported who been searching teenager the house find the officers who resided missing by parents obviously conducting investigation. a criminal officers were disagree suggestion
I with anyone leaving the house avoid permitted to enter rooms of The officers house was secure. behind or to assure *12 fact that part, by instigated, search was stated that the privileged The were light upstairs. saw a they they because saw merely residence other rooms explore They inquire did not night. at on in a residence light were people other or his wife about whether Wood in the residence did not call aloud while residence and no They heard present. else was anyone ascertain whether Moreover, they if there. person another suggest noise residence, they would securing concerned about truly unlocked, did, as to the residence not have left door the residence. when left
Because the evidence indicates that the search for the child motive,” pretext concealing investigatory police was “a an I Opperman, 428 U.S. would hold that the search was not a valid exercise of the caretak- ing function. reasons,
For these I would hold that the trial judge erred using function to admit the evi- caretaking I dence and would further hold that the evidence should have suppressed.
been I dissent.
UPON A PETITION FOR REHEARING EN THE
BANC BEFORE FULL COURT Wоod, Arthur May On 1997 came Calvin court- counsel, appointed petition praying and filed a that the Court 6, 1997, judgment May set aside the rendered herein on grant rehearing en banc thereof. whereof, consideration en banc petition rehearing
On granted, May is the mandate entered herein on 1997 is banc, stayed the decision of the en and the pending Court is reinstated on the docket of this appeal Court. parties compliance shall file briefs with Rule 5A:35.
It is further shall clerk ordered file with the of this Court ten additional copies appendix previously filed in this case.