Amin v. Cnty. of Henrico

• Decision Date: 31 October 2012
• Docket Number: Record No. 0861–11–2.
• Citation: 733 S.E.2d 661,61 Va.App. 67
• Parties: Tariq Rashad AMIN v. COUNTY OF HENRICO.
• Court: Virginia Court of Appeals

61 Va.App. 67

733 S.E.2d 661

Tariq Rashad AMIN

v.COUNTY OF HENRICO.

Record No. 0861–11–2.

Court of Appeals of Virginia, Richmond.

Oct. 31, 2012.

J. Burkhardt Beale (Boone Beale, PLLC, on brief), Woodbridge, for appellant.

David R. Giroux, Assistant Commonwealth's Attorney, for appellee.

Present: Judges FRANK, HUMPHREYS and HUFF.

HUMPHREYS, Judge.

Tariq Rashad Amin (“Amin”) was convicted in the Circuit Court of the County of Henrico (“trial court”) of carrying a concealed weapon in violation of Henrico County Ordinance 22–2 which incorporates Code § 18.2–308.¹ On appeal, Amin contends that (1) his “conviction is void as a matter of law as there exists no Henrico County Ordinance 22–2 incorporating [ Code § 18.2–308],” and (2) “the trial court erred in denying [his] motion to suppress.” For the reasons that follow, we affirm.

I. Background

On appeal, we view the facts in the light most favorable to the prevailing party below, in this case the County. Branham v. Commonwealth, 283 Va. 273, 279, 720 S.E.2d 74, 77 (2012). So viewed, the facts of this case are the following.

On December 1, 2010, Officers M.R. Fitzer (“Officer Fitzer”), D.J. Grant (“Officer Grant”), and S.C. Flores (“Officer Flores”) responded to a call regarding a suspicious situation at a local Wendy's. The restaurant was located in an area that had been subject to a recent string of robberies and other crimes.² According to the dispatch, the employees were concerned about a parked vehicle that had been in the parking lot for a while with its lights still on. The occupant was still inside the vehicle, and the employees could not tell if he was awake. The Wendy's was closed at the time, although the employees were still there.

Officer Fitzer was the first to arrive on the scene, and he observed Amin's vehicle parked front end first in one of the parking spaces in the parking lot. The Wendy's property is laid out like many fast-food restaurants, with the building in the middle of a horseshoe shaped parking lot that allows for a drive-through around the building and parking spaces on the edges. On the side where Amin parked his vehicle, there was a fence in front of the parking spaces that separated the parking lot from that of the store next door. There were no other vehicles around Amin's vehicle. Officer Fitzer parked his cruiser one to one and a half car lengths away from Amin's vehicle in the parking lot in the area between the parking spaces and the Wendy's building.

Before approaching Amin, Officer Fitzer gave Amin's license plate number to the police dispatcher. As he reached the car, he saw Amin in the vehicle, asleep or “kind of in, in consciousness.” Meanwhile, Officer Grant arrived on the scene and parked his cruiser behind Officer Fitzer's. He approached Amin's vehicle on the passenger side. Officer Fitzer asked Amin what he was doing there. Amin responded that he was waiting for his uncle to come pick him up. Officer Fitzer asked how long his uncle would be, and Amin responded 45 minutes. Finally, he asked Amin if he had anything illegal in his car such as guns or weapons or if he had been drinking. Amin responded no.

While this was going on, Officer Flores pulled into the parking lot and parked behind Officer Fitzer's cruiser as well. Since Officer Flores was the primary officer of this beat, he took over the investigation. He asked Amin what he was doing there, and Amin replied that his car had overheated, and he was waiting in the parking lot, because it had died on him. Officer Flores then asked Amin for his identification in order to run a background check, and Amin handed him his driver's license. Officer Flores testified that Amin was very cooperative with him.

Using the license information, Officer Flores performed a background check and discovered that Amin had a revoked concealed weapons permit. Officer Flores asked Amin again whether he had any weapons in the car, and Amin replied that he did.³ At that point, the officers were able to recover a handgun hidden in Amin's waistband, which Amin had concealed with his clothing. The officers arrested Amin, and he later admitted that he was aware that his permit had been revoked.

During the encounter, all three officers were wearing uniforms, and their cruisers were marked. The cruisers had their headlights on, but none of their emergency flashers were on.

The officers issued Amin a summons for carrying a concealed weapon. Prior to trial, Amin filed a motion to suppress the evidence based on an alleged violation of his rights under the Fourth Amendment, which the trial court denied. The trial court subsequently found Amin guilty, and he noted this appeal.

II. Analysis

A. Henrico County Ordinance 22–2

On Amin's summons, Officer Flores filled in “(22–2) 18.2–308” as the law section violated,and he checked the boxes for a violation of both state and county laws. He then listed a description of the charge as “Concealed weapon W/NO CWP (CWP Revoked).” ⁴ Ultimately, the trial court convicted Amin, and the final order reflected that the offense was “carrying a concealed weapon (Henrico County Ordinance 22–2 incorporating Virginia Code Section 18.2–308).” On appeal, Amin contends that “there exists no Henrico County Ordinance 22–2 incorporating [ Code § 18.2–308]” and, therefore, the trial court erred in convicting him of such offense as the “conviction is void as a matter of law.”

Henrico County Ordinance 22–2 is a part of Chapter 22 of the Henrico County Code of Ordinances, which is entitled “Traffic and Vehicles.” ⁵ It is essentially an omnibus ordinance that by reference criminalizes as a violation of county ordinance all conduct that would be criminal under a myriad of provisions of the Code of Virginia. It simply states,

Pursuant to the authority in Code of Virginia, § 46.2–1313, ⁶ all of the provisions and requirements of the laws of the state contained in Code of Virginia, title 46.2 (Code of Virginia, § 46.2–1–101 et seq.) and Code of Virginia, title 18.2, ch. 7, art. 2 ( Code of Virginia, § 18.2–266 et seq.), and Code of Virginia, title 16.1, ch. 11, art. 9 ( Code of Virginia, § 16.1–278 et seq.) except those provisions and requirements the violation of which constitutes a felony, and except those provisions and requirements which by their very nature can have no application to or within the county, are hereby adopted and incorporated in this chapter by reference and made applicable within the county.

As the criminal act of carrying a concealed weapon under Code § 18.2–308 is included in Title 18.2, Chapter 7, Article 7 of the Code of Virginia, and the ordinance only adopts and incorporates the provisions of Article 2 of that title and chapter, Amin argues that his conviction is void and that this Court should dismiss the case as a result.

However, Amin never included this assignment of error in his petition for appeal, and so we cannot address it on appeal.⁷ “Pursuant to Rule 5A:12(c), ‘[o]nly assignments of error assigned in the petition for appeal will be noticed by this Court.’ ” Doss v. Commonwealth, 59 Va.App. 435, 451 n. 2, 719 S.E.2d 358, 366 n. 2 (2012); Gregory v. Commonwealth, 46 Va.App. 683, 694, 621 S.E.2d 162, 168 (2005); Thompson v. Commonwealth, 27 Va.App. 620, 626, 500 S.E.2d 823, 825–26 (1998); Rule 5A:12(c). Amin attempts to circumvent this rule by arguing that the final order is void ab initio, not merely voidable, and therefore, he may attack it at any time, including for the first time on appeal. It is well recognized that an order which is void ab initio is “a complete nullity and it may be ‘impeached directly or collaterally by all persons, anywhere, at any time, or in any manner,’ ” Singh v. Mooney, 261 Va. 48, 51–52, 541 S.E.2d 549, 551 (2001) (quoting Barnes v. Am. Fertilizer Co., 144 Va. 692, 705, 130 S.E. 902, 906 (1925)), whereas an order that is merely voidable “is subject to direct attack at any time before the judgment becomes final, but is not subject to collateral attack,” Pope v. Commonwealth, 37 Va.App. 451, 456, 559 S.E.2d 388, 390 (2002).

However, in his effort to seek appellate review of an issue not previously raised as void ab initio, Amin overlooks the fact that he has not properly placed this Court in a posture to do so. We cannot even begin to analyze whether the defect in the charging document and final order caused this order to be void or merely voidable, because Amin's failure to comply with Rule 5A:12(c) removes the issue from this Court's appellate purview.

While it is true that one may challenge subject matter jurisdiction at any point, one must properly be in a court in the first place in order to do so. That is, an appellate court must properly have acquired appellate jurisdiction itself before it can hear a challenge to any lower court or agency's actions.

Russell v. Va. Bd. of Agric. & Consumer Servs., 59 Va.App. 86, 94, 717 S.E.2d 413, 417 (2011). In this case, Amin failed to comply with Rule 5A:12, by omitting this assignment of error from his petition for appeal. “Under Rule 5A:12(c), ‘only questions presented ⁸ in the petition for appeal will be noticed by the Court of Appeals.’ Therefore, ‘no appeal was granted by this Court on that issue,’ and appellant may not unilaterally add it as a new issue.” Thompson, 27 Va.App. at 626, 500 S.E.2d at 825 (quoting Cruz v. Commonwealth, 12 Va.App. 661, 664 n. 1, 406 S.E.2d 406, 407 n. 1 (1991)). Rule 5A:12(c) is strictly enforced and does not contain an “ends of justice” exception. Id. at 626, 500 S.E.2d at 826. Thus, this Court cannot and we do not address Amin's first assignment of error.

B. Motion to Suppress

In the lone assignment of error that was included in the petition for appeal and granted by this Court for appellate review, Amin assigns error to the trial court's denial of his motion to suppress. We find no error in the trial court's conclusion that Amin's encounter with the police officers was consensual and that no Fourth Amendment violation occurred. Thus...