Banks v. Commonwealth of Va.

Decision Date26 April 2011
Docket NumberRecord No. 3059-08-3
CourtVirginia Court of Appeals

Present: Judges McClanahan, Haley and Beales Argued at Salem, Virginia




J. Leyburn Mosby, Jr., Judge

Keith Orgera, Assistant Public Defender, for appellant.

Alice T. Armstrong, Assistant Attorney General II (Kenneth T. Cuccinelli, II, Attorney General, on briefs), for appellee.

This case returns to us on remand from the Supreme Court of Virginia for consideration of "whether the circuit court erred in holding that Banks' state of undress presented an exigency justifying the officers' seizure of the jacket." Banks v. Commonwealth, 280 Va. 612, 619, 701 S.E.2d 437, 441 (2010). Having considered that issue, we find the trial court erred in denying Banks' motion to suppress, and we reverse its judgment.


"'In reviewing the denial of a motion to suppress based on the alleged violation of an individual's Fourth Amendment rights, we consider the facts in the light most favorable to the Commonwealth.'" Lawson v. Commonwealth, 55 Va. App. 549, 552, 687 S.E.2d 94, 95 (2010) (quoting Ward v. Commonwealth, 273 Va. 211, 218, 639 S.E.2d 269, 271 (2007)).

On November 15, Lynchburg Police Officers Mitchell and Clements arrested Banks in the bedroom doorway inside the home where he was found. Banks was wearing shorts, a thin, long-sleeved shirt, and no shoes. Officer Mitchell asked Banks "if he wanted to grab his shoes or a jacket" because it was "a rather cold day outside."1 Banks, handcuffed by that point, said "yes" at which time they went back into the bedroom. 2 Banks then told Mitchell his shoes were in his vehicle so Banks and Mitchell left the bedroom, exited the house, and retrieved the shoes from Banks' vehicle. Mitchell then placed Banks in the patrol car. Officer Clements stayed behind in the bedroom and asked the female occupant of the bedroom if Banks had a coat there.3 She pointed to a jacket hanging on the top of a closet door approximately six feet from where Clements was standing. Clements retrieved the jacket and, upon searching it, found a gun. The jacket, with the gun in the pocket, was placed in the trunk of the police cruiser. Banks was charged with possession of a firearm by a convicted felon.4

Banks moved to suppress the jacket claiming a violation of his Fourth Amendment rights since the officers did not have a warrant to search the bedroom or seize the jacket. The trial court denied the motion concluding that the officers' need to obtain the jacket for Banks constituted "exigent circumstances."5

On appeal to this Court, we concluded in an unpublished decision that, viewing the evidence in the light most favorable to the Commonwealth, the seizure of the jacket was lawful under the Fourth Amendment as authorized by Banks' consent. Banks v. Commonwealth, Record No. 3059-08-3, 2009 Va. App. LEXIS 507 (Va. Ct. App. Nov. 10, 2009).6 The Supreme Court reversed our decision and remanded the case for consideration of "whether the circuit court erred in holding that Banks' state of undress presented an exigency justifying the officers' seizure of the jacket." Banks, 280 Va. at 619, 701 S.E.2d at 441.7


To prevail on appeal Banks bears the burden to "show that the trial court's denial of his suppression motion, when the evidence is considered in the light most favorable to the prosecution, was reversible error." Whitfield v. Commonwealth, 265 Va. 358, 361, 576 S.E.2d 463, 464 (2003). "The question whether the Fourth Amendment has been violated is always 'a question of fact to be determined from all the circumstances.'" Malbrough v. Commonwealth, 275 Va. 163, 168, 655 S.E.2d 1, 3 (2008) (quoting Ohio v. Robinette, 519 U.S. 33, 40 (1996)) (citation omitted). Although we review the trial court's application of the law de novo, Kyer v. Commonwealth, 45 Va. App. 473, 479, 612 S.E.2d 213, 216-17 (2005) (en banc), we defer to the trial court's findings of fact taking care '"both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.'" Malbrough, 275 Va. at 169, 655 S.E.2d at 3 (quoting Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27 (2000)) (citation omitted); see also Ferguson v. Commonwealth, 52 Va. App. 324, 334, 663 S.E.2d 505, 510 (2008), aff'd, 278 Va. 118, 677 S.E.2d 45 (2009).

Banks argues the trial court erred in denying his motion to suppress because the Commonwealth failed to carry its burden in proving that exigent circumstances justified the warrantless seizure of his jacket from the bedroom.8 The Commonwealth contends there was "no deprivation of his Fourth Amendment rights" because "Banks' state of undress present[ed]an exigency" and "[t]he officers reasonably sought to provide Banks with appropriate clothing." In making this contention, the Commonwealth is advocating the creation of an exception, either as a subset or extension of the emergency/community caretaker exceptions, or as a separate "clothing exception," allowing police to determine that an arrestee's Fourth Amendment rights should give way to his interests in being provided with what the police deem as appropriate clothing. The exception would purportedly permit such determinations by police without regard to which interests an arrestee would choose to protect since obtaining the arrestee's consent would eliminate the need for the exception. See Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973) ("a search authorized by consent is wholly valid").

A. Emergency/Community Caretaker Exceptions

"'Searches and seizures inside a home without a warrant are presumptively unreasonable.... The Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.'" Sharpe v. Commonwealth, 44 Va. App. 448, 455, 605 S.E.2d 346, 349-50 (2004) (quoting Payton v. New York, 445 U. S. 573, 586 (1980)). As the United States Supreme Court has recognized,

one exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency. Accordingly, law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.

Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (internal quotations and citations omitted) (finding the entrance reasonable since police observed fighting and an injured adult). Likewise, this Court has held the "emergency doctrine" permits police to make a warrantless entry into a home when "they reasonably believe that a person within is in need of immediate aid." Reynolds v. Commonwealth, 9 Va. App. 430, 437, 388 S.E.2d 659, 663 (1990) (internal citationsand quotation marks omitted); seeMincey v. Arizona, 437 U.S. 385, 392 (1978). Such a warrantless entry during an emergency is justified by the fact that "the preservation of human life is paramount to the right of privacy protected by search and seizure laws and constitutional guaranties." Reynolds, 9 Va. App. at 437, 388 S.E.2d at 664 (internal quotation marks and citation omitted). See also Kyer, 45 Va. App. at 480-81, 612 S.E.2d at 217. When the police fail to obtain a warrant, the Commonwealth bears "a heavy burden to justify the warrantless entry" based upon a purported exigency. Reynolds, 9 Va. App. at 436, 388 S.E.2d at 663.

The United States Supreme Court has upheld warrantless searches of automobiles in the exercise of "community caretaking functions" carried out by police during the inventory of property taken into custody. See Cady v. Dombrowski, 413 U.S. 433 (1973) (trunk of car towed from accident scene was searched pursuant to standard police procedure); South Dakota v. Opperman, 428 U.S. 364 (1976) (after car impounded for parking violations police inventoried contents pursuant to standard police procedure); Colorado v. Bertine, 479 U.S. 367 (1987) (vehicle impounded after driver arrested for drunk driving searched by police according to standard police procedure). As the Court has explained,

[our] previous recognition of the distinction between motor vehicles and dwelling places leads us to conclude that the type of caretaking "search" conducted here of a vehicle that was neither in the custody nor on the premises of its owner, and that had been placed where it was by virtue of lawful police action, was not unreasonable solely because a warrant had not been obtained.

Cady, 413 U.S. at 447-48.

Warrantless inventory searches of vehicles have also been upheld in Virginia. See, e.g., Reese v. Commonwealth, 220 Va. 1035, 265 S.E.2d 746 (1980); Williams v. Commonwealth, 42 Va. App. 723, 594 S.E.2d 305 (2004). Although the Supreme Court of Virginia has yet to rule on whether the community caretaker doctrine applies in Virginia outside the context of vehicleinventory searches, 9 this Court has stated the community caretaker doctrine is not limited to police contact with vehicles but also permits officers to conduct seizures of individuals in order to render aid to someone in need or distress. Commonwealth v. Waters, 20 Va. App. 285, 291, 456 S.E.2d 527, 530-31 (1996).10 Thus, in this context, the community caretaker doctrine, like the emergency doctrine, is premised on the "commonsense rationale that 'preservation of human life is paramount to the right of privacy' protected by the Fourth Amendment." Kyer, 45 Va. App. at 480, 612 S.E.2d at 217 (quoting Reynolds, 9 Va. App. at 437, 388 S.E.2d at 664).11

Applying these principles, we conclude the officers' desire "to provide...

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