emergency exception in Virginia

2011Commonwealth 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 Banks with appropriate clothing” did not present an exigency justifying the warrantless seizure of his

2011Commonwealth 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 Banks with appropriate clothing” did not present an exigency justifying the warrantless seizure of his

2011Commonwealth 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 Banks with appropriate clothing” did not present an exigency justifying the warrantless seizure of his

2011Commonwealth 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 Banks with appropriate clothing” did not present an exigency justifying the warrantless seizure of his

2007Pursuant to the emergency doctrine, as set out in Mincey v. Arizona, 437 U.S. 385 , 98 S. Ct. 2408 , 57 L.

2007Pursuant to the emergency doctrine, as set out in Mincey v. Arizona, 437 U.S. 385 , 98 S. Ct. 2408 , 57 L.

2011Commonwealth 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 Banks with appropriate clothing” did not present an exigency justifying the warrantless seizure of his

2011Commonwealth 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 Banks with appropriate clothing” did not present an exigency justifying the warrantless seizure of his

2005Compare Commonwealth v. Waters, 20 Va.App. 285, 288-91 , 456 S.E.2d 527, 529-30 (1995), and Barrett v. Commonwealth, 18 Va.App. 773, 776-79 , 447 S.E.2d 243, 245-46 (1994), rev’d on other grounds, 250 Va. 243 , 462 S.E.2d 109 (1995), with Reynolds, 9 Va.App. at 436-37 , 388 S.E.2d at 663-64 , and Shannon v. Commonwealth, 18 Va.App. 31, 34-35 , 441 S.E.2d 225, 226-27 , aff'd on reh’g en banc, 19 Va.App. 145 , 449 S.E.2d 584 (1994). 7 Indeed, the non-exigent form of the emergency exception, also called the “emergency aid doctrine,” is often deemed a subset of the community caretaker doctrine. 8

2005Compare Commonwealth v. Waters, 20 Va.App. 285, 288-91 , 456 S.E.2d 527, 529-30 (1995), and Barrett v. Commonwealth, 18 Va.App. 773, 776-79 , 447 S.E.2d 243, 245-46 (1994), rev’d on other grounds, 250 Va. 243 , 462 S.E.2d 109 (1995), with Reynolds, 9 Va.App. at 436-37 , 388 S.E.2d at 663-64 , and Shannon v. Commonwealth, 18 Va.App. 31, 34-35 , 441 S.E.2d 225, 226-27 , aff'd on reh’g en banc, 19 Va.App. 145 , 449 S.E.2d 584 (1994). 7 Indeed, the non-exigent form of the emergency exception, also called the “emergency aid doctrine,” is often deemed a subset of the community caretaker doctrine. 8

2005Compare Commonwealth v. Waters, 20 Va.App. 285, 288-91 , 456 S.E.2d 527, 529-30 (1995), and Barrett v. Commonwealth, 18 Va.App. 773, 776-79 , 447 S.E.2d 243, 245-46 (1994), rev’d on other grounds, 250 Va. 243 , 462 S.E.2d 109 (1995), with Reynolds, 9 Va.App. at 436-37 , 388 S.E.2d at 663-64 , and Shannon v. Commonwealth, 18 Va.App. 31, 34-35 , 441 S.E.2d 225, 226-27 , aff'd on reh’g en banc, 19 Va.App. 145 , 449 S.E.2d 584 (1994). 7 Indeed, the non-exigent form of the emergency exception, also called the “emergency aid doctrine,” is often deemed a subset of the community caretaker doctrine. 8

2005Compare Commonwealth v. Waters, 20 Va.App. 285, 288-91 , 456 S.E.2d 527, 529-30 (1995), and Barrett v. Commonwealth, 18 Va.App. 773, 776-79 , 447 S.E.2d 243, 245-46 (1994), rev’d on other grounds, 250 Va. 243 , 462 S.E.2d 109 (1995), with Reynolds, 9 Va.App. at 436-37 , 388 S.E.2d at 663-64 , and Shannon v. Commonwealth, 18 Va.App. 31, 34-35 , 441 S.E.2d 225, 226-27 , aff'd on reh’g en banc, 19 Va.App. 145 , 449 S.E.2d 584 (1994). 7 Indeed, the non-exigent form of the emergency exception, also called the “emergency aid doctrine,” is often deemed a subset of the community caretaker doctrine. 8

2011Barrett v. Commonwealth, 250 Va. 243, 246-48 , 462 S.E.2d 109, 111-12 (1995). 10 Unlike the emergency exception, the community caretaker exception has not been applied in Virginia to permit warrantless entries into a home. 11 We have stated when an exception is claimed under the emergency/community caretaker doctrines, the claim “must be scrutinized to insure that it is not mere pretext for entries and searches that otherwise fall under the requirement for a warrant.” Reynolds, 9 Va. App. at 438 , 388 S.E.2d at 664 (internal quotation marks and citation omitted).

2011Barrett v. Commonwealth, 250 Va. 243, 246-48 , 462 S.E.2d 109, 111-12 (1995). 10 Unlike the emergency exception, the community caretaker exception has not been applied in Virginia to permit warrantless entries into a home. 11 We have stated when an exception is claimed under the emergency/community caretaker doctrines, the claim “must be scrutinized to insure that it is not mere pretext for entries and searches that otherwise fall under the requirement for a warrant.” Reynolds, 9 Va. App. at 438 , 388 S.E.2d at 664 (internal quotation marks and citation omitted).

2005See Reynolds, 9 Va.App. at 438, 388 S.E.2d at 664 (applying the emergency exception and noting that "[n]o evidence in the record suggest[ed] that the [officers’] entry into appellants’ house ... was a pretext to search for contraband or illegal activity rather than to look for possible victims and to secure the property,” and finding that the officers "act[ed] in good faith under the circumstances and according to their responsibilities as law enforcement officers”); see also Williams, 42 Va.App. at 731 , 594 S.E.2d at 309 (noting that a search, pursuant to impoundment of a vehicle and corresp

2005See Reynolds, 9 Va.App. at 438, 388 S.E.2d at 664 (applying the emergency exception and noting that "[n]o evidence in the record suggest[ed] that the [officers’] entry into appellants’ house ... was a pretext to search for contraband or illegal activity rather than to look for possible victims and to secure the property,” and finding that the officers "act[ed] in good faith under the circumstances and according to their responsibilities as law enforcement officers”); see also Williams, 42 Va.App. at 731 , 594 S.E.2d at 309 (noting that a search, pursuant to impoundment of a vehicle and corresp

2005Compare Commonwealth v. Waters, 20 Va.App. 285, 288-91 , 456 S.E.2d 527, 529-30 (1995), and Barrett v. Commonwealth, 18 Va.App. 773, 776-79 , 447 S.E.2d 243, 245-46 (1994), rev’d on other grounds, 250 Va. 243 , 462 S.E.2d 109 (1995), with Reynolds, 9 Va.App. at 436-37 , 388 S.E.2d at 663-64 , and Shannon v. Commonwealth, 18 Va.App. 31, 34-35 , 441 S.E.2d 225, 226-27 , aff'd on reh’g en banc, 19 Va.App. 145 , 449 S.E.2d 584 (1994). 7 Indeed, the non-exigent form of the emergency exception, also called the “emergency aid doctrine,” is often deemed a subset of the community caretaker doctrine. 8

2005Compare Commonwealth v. Waters, 20 Va.App. 285, 288-91 , 456 S.E.2d 527, 529-30 (1995), and Barrett v. Commonwealth, 18 Va.App. 773, 776-79 , 447 S.E.2d 243, 245-46 (1994), rev’d on other grounds, 250 Va. 243 , 462 S.E.2d 109 (1995), with Reynolds, 9 Va.App. at 436-37 , 388 S.E.2d at 663-64 , and Shannon v. Commonwealth, 18 Va.App. 31, 34-35 , 441 S.E.2d 225, 226-27 , aff'd on reh’g en banc, 19 Va.App. 145 , 449 S.E.2d 584 (1994). 7 Indeed, the non-exigent form of the emergency exception, also called the “emergency aid doctrine,” is often deemed a subset of the community caretaker doctrine. 8

2005Compare Commonwealth v. Waters, 20 Va.App. 285, 288-91 , 456 S.E.2d 527, 529-30 (1995), and Barrett v. Commonwealth, 18 Va.App. 773, 776-79 , 447 S.E.2d 243, 245-46 (1994), rev’d on other grounds, 250 Va. 243 , 462 S.E.2d 109 (1995), with Reynolds, 9 Va.App. at 436-37 , 388 S.E.2d at 663-64 , and Shannon v. Commonwealth, 18 Va.App. 31, 34-35 , 441 S.E.2d 225, 226-27 , aff'd on reh’g en banc, 19 Va.App. 145 , 449 S.E.2d 584 (1994). 7 Indeed, the non-exigent form of the emergency exception, also called the “emergency aid doctrine,” is often deemed a subset of the community caretaker doctrine. 8

2005Compare Commonwealth v. Waters, 20 Va.App. 285, 288-91 , 456 S.E.2d 527, 529-30 (1995), and Barrett v. Commonwealth, 18 Va.App. 773, 776-79 , 447 S.E.2d 243, 245-46 (1994), rev’d on other grounds, 250 Va. 243 , 462 S.E.2d 109 (1995), with Reynolds, 9 Va.App. at 436-37 , 388 S.E.2d at 663-64 , and Shannon v. Commonwealth, 18 Va.App. 31, 34-35 , 441 S.E.2d 225, 226-27 , aff'd on reh’g en banc, 19 Va.App. 145 , 449 S.E.2d 584 (1994). 7 Indeed, the non-exigent form of the emergency exception, also called the “emergency aid doctrine,” is often deemed a subset of the community caretaker doctrine. 8

2007Ed. 2d 290 (1978), and recently reaffirmed in Brigham City v. Stuart, 547 U.S. ___ , 126 S. Ct. 1943 , 164 L.

2007Ed. 2d 290 (1978), and recently reaffirmed in Brigham City v. Stuart, 547 U.S. ___ , 126 S. Ct. 1943 , 164 L.

2005“In this latter sense, the emergency doctrine is functionally equivalent to, and sometimes deemed a subset of, the community caretaker doctrine.” Id. 13 In Kyer, I would have affirmed based upon the existence of evidence to support the trial court’s factual finding that the wide open door of a residence at 4:00 a.m. in pouring rain supported the reasonable inference drawn by the trial court in that case that a resident was in need of emergency assistance.

2004See Commonwealth v. Thornton, 24 Va.App. 478, 484 , 488 S.E.2d 487, 490 (1997) (recognizing that “[a]mong the circumstances accepted as providing ‘exigent circumstances’ for a warrantless search are those where a true ‘emergency’ exists” (quoting Reynolds, 9 Va.App. at 436 , 388 S.E.2d at 663 )); see also Hill v. Commonwealth, 18 Va.App. 1, 3 , 441 S.E.2d 50, 51 (1994) (“When probable cause exists, exigent circumstances excuse the requirement of obtaining a warrant, but exigent circumstances do not excuse the requirement of probable cause.” (emphasis added)).

2015Elliott, 48 Va. App. at 554 , 633 S.E.2d at 204-05 (explaining that this Court will review mooted issues only in the context of “disputes of abbreviated duration where the party seeking review ‘can make a reasonable showing that he will again be subjected to the alleged illegality’” (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983))). - 18 - rather than presuming that both parents have equal rights to custody.

2015Elliott, 48 Va. App. at 554 , 633 S.E.2d at 204-05 (explaining that this Court will review mooted issues only in the context of “disputes of abbreviated duration where the party seeking review ‘can make a reasonable showing that he will again be subjected to the alleged illegality’” (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983))). - 18 - rather than presuming that both parents have equal rights to custody.

2015Elliott, 48 Va. App. at 554 , 633 S.E.2d at 204-05 (explaining that this Court will review mooted issues only in the context of “disputes of abbreviated duration where the party seeking review ‘can make a reasonable showing that he will again be subjected to the alleged illegality’” (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983))). - 18 - rather than presuming that both parents have equal rights to custody.

2013Kyer, 45 Va.App. at 480-81 , 612 S.E.2d at 217 (citation omitted); see also Knight v. Commonwealth, 61 Va.App. 297, 306-07 , 734 S.E.2d 716, 720-21 (2012) (surveying the scope of the community-caretaker exception). 3 *761 In this case, the Commonwealth concedes the officers did not have probable cause to believe Ross may have committed (or was about to commit) a crime.

2013Kyer, 45 Va.App. at 480-81 , 612 S.E.2d at 217 (citation omitted); see also Knight v. Commonwealth, 61 Va.App. 297, 306-07 , 734 S.E.2d 716, 720-21 (2012) (surveying the scope of the community-caretaker exception). 3 *761 In this case, the Commonwealth concedes the officers did not have probable cause to believe Ross may have committed (or was about to commit) a crime.

2005See United States v. Holloway, 290 F.3d 1331, 1339-41 (11th Cir. 2002) (holding that the emergency exception applies when an anonymous 911 caller reports gunfire and arguing coming from a residence); see also John F. Decker, Emergency Circumstances, Police Responses & Fourth Amendment Restrictions, 89 J.

2005See State v. Geisler, 610 A.2d 1225, 1236 (Conn. 1992) (holding that “subordinate factual findings” deserve deference, but “the trial court’s legal conclusion regarding the applicability of the emergency doctrine in light of these facts will be reviewed de novo”). 573, 570 S.E.2d 836, 838 (2002); Wilson v. Commonwealth, 45 Va. App. 193, 202-03 , 609 S.E.2d 612, 616 (2005). -7- In this case, Hopson did not argue before the trial court (nor did the judge find) that the testimony of either officer was in any way fabricated or exaggerated.

2005See State v. Geisler, 610 A.2d 1225, 1236 (Conn. 1992) (holding that “subordinate factual findings” deserve deference, but “the trial court’s legal conclusion regarding the applicability of the emergency doctrine in light of these facts will be reviewed de novo”). 573, 570 S.E.2d 836, 838 (2002); Wilson v. Commonwealth, 45 Va. App. 193, 202-03 , 609 S.E.2d 612, 616 (2005). -7- In this case, Hopson did not argue before the trial court (nor did the judge find) that the testimony of either officer was in any way fabricated or exaggerated.

2005See State v. Geisler, 610 A.2d 1225, 1236 (Conn. 1992) (holding that “subordinate factual findings” deserve deference, but “the trial court’s legal conclusion regarding the applicability of the emergency doctrine in light of these facts will be reviewed de novo”). 573, 570 S.E.2d 836, 838 (2002); Wilson v. Commonwealth, 45 Va. App. 193, 202-03 , 609 S.E.2d 612, 616 (2005). -7- In this case, Hopson did not argue before the trial court (nor did the judge find) that the testimony of either officer was in any way fabricated or exaggerated.

2005See State v. Geisler, 610 A.2d 1225, 1236 (Conn. 1992) (holding that “subordinate factual findings” deserve deference, but “the trial court’s legal conclusion regarding the applicability of the emergency doctrine in light of these facts will be reviewed de novo”). 573, 570 S.E.2d 836, 838 (2002); Wilson v. Commonwealth, 45 Va. App. 193, 202-03 , 609 S.E.2d 612, 616 (2005). -7- In this case, Hopson did not argue before the trial court (nor did the judge find) that the testimony of either officer was in any way fabricated or exaggerated.

2005See Terry v. Commonwealth, 23 Va.App. 87, 91 , 474 S.E.2d 172, 174 (1996); Waters, 20 Va.App. at 289-90 , 456 S.E.2d at 529-30 . [8] See note 1, supra. [9] We have consistently required that any warrantless search, pursuant to either the community caretaker exception or the emergency exception, must be factually unrelated to an intent to search for evidence of illegal activity.

2005See Terry v. Commonwealth, 23 Va.App. 87, 91 , 474 S.E.2d 172, 174 (1996); Waters, 20 Va.App. at 289-90 , 456 S.E.2d at 529-30 . [8] See note 1, supra. [9] We have consistently required that any warrantless search, pursuant to either the community caretaker exception or the emergency exception, must be factually unrelated to an intent to search for evidence of illegal activity.

2005Even if true, however, this assertion misses the point.8 In emergency exception cases, “the more stringent standard of probable cause is not required.” State v. Portes, 840 A.2d 1131, 1136 (R.I. 2004); State v. Crawford, 659 N.W.2d 537, 543 (Iowa 2003) (noting that the standard governing emergency searches “is of course less than the probable-cause requirement applied in criminal searches”).

2005If probable cause were required, “there would be no purpose for the emergency exception.” People v. DePaula, 179 A.D.2d 424, 426 (N.Y.

2005If probable cause were required, “there would be no purpose for the emergency exception.” People v. DePaula, 179 A.D.2d 424, 426 (N.Y.

2005See State v. Geisler, 610 A.2d 1225, 1236 (Conn. 1992) (holding that “subordinate factual findings” deserve deference, but “the trial court’s legal conclusion regarding the applicability of the emergency doctrine in light of these facts will be reviewed de novo”). 573, 570 S.E.2d 836, 838 (2002); Wilson v. Commonwealth, 45 Va. App. 193, 202-03 , 609 S.E.2d 612, 616 (2005). -7- In this case, Hopson did not argue before the trial court (nor did the judge find) that the testimony of either officer was in any way fabricated or exaggerated.

2005See State v. Geisler, 610 A.2d 1225, 1236 (Conn. 1992) (holding that “subordinate factual findings” deserve deference, but “the trial court’s legal conclusion regarding the applicability of the emergency doctrine in light of these facts will be reviewed de novo”). 573, 570 S.E.2d 836, 838 (2002); Wilson v. Commonwealth, 45 Va. App. 193, 202-03 , 609 S.E.2d 612, 616 (2005). -7- In this case, Hopson did not argue before the trial court (nor did the judge find) that the testimony of either officer was in any way fabricated or exaggerated.

2005Even if true, however, this assertion misses the point.8 In emergency exception cases, “the more stringent standard of probable cause is not required.” State v. Portes, 840 A.2d 1131, 1136 (R.I. 2004); State v. Crawford, 659 N.W.2d 537, 543 (Iowa 2003) (noting that the standard governing emergency searches “is of course less than the probable-cause requirement applied in criminal searches”).

2004See Commonwealth v. Thornton, 24 Va.App. 478, 484 , 488 S.E.2d 487, 490 (1997) (recognizing that “[a]mong the circumstances accepted as providing ‘exigent circumstances’ for a warrantless search are those where a true ‘emergency’ exists” (quoting Reynolds, 9 Va.App. at 436 , 388 S.E.2d at 663 )); see also Hill v. Commonwealth, 18 Va.App. 1, 3 , 441 S.E.2d 50, 51 (1994) (“When probable cause exists, exigent circumstances excuse the requirement of obtaining a warrant, but exigent circumstances do not excuse the requirement of probable cause.” (emphasis added)).

2004See Commonwealth v. Thornton, 24 Va.App. 478, 484 , 488 S.E.2d 487, 490 (1997) (recognizing that “[a]mong the circumstances accepted as providing ‘exigent circumstances’ for a warrantless search are those where a true ‘emergency’ exists” (quoting Reynolds, 9 Va.App. at 436 , 388 S.E.2d at 663 )); see also Hill v. Commonwealth, 18 Va.App. 1, 3 , 441 S.E.2d 50, 51 (1994) (“When probable cause exists, exigent circumstances excuse the requirement of obtaining a warrant, but exigent circumstances do not excuse the requirement of probable cause.” (emphasis added)).

2004However, when applied independently of police investigatory functions (in the “non-exigent” context), the emergency exception becomes the functional equivalent of that portion of the community caretaker doctrine recognizing that, independent from their duties of investigating crimes, “police owe ‘duties to the public, such as rendering aid to individuals in danger of physical harm, reducing the commission of crimes through patrol and other preventive measures, and providing services on an emergency basis.’ ” Reynolds, 9 Va.App. at 436 , 388 S.E.2d at 663 (quoting Washington v. Bakke, 44 Wash.A

2004However, when applied independently of police investigatory functions (in the “non-exigent” context), the emergency exception becomes the functional equivalent of that portion of the community caretaker doctrine recognizing that, independent from their duties of investigating crimes, “police owe ‘duties to the public, such as rendering aid to individuals in danger of physical harm, reducing the commission of crimes through patrol and other preventive measures, and providing services on an emergency basis.’ ” Reynolds, 9 Va.App. at 436 , 388 S.E.2d at 663 (quoting Washington v. Bakke, 44 Wash.A