Cabbler v. Com.
| Decision Date | 29 November 1971 |
| Citation | 184 S.E.2d 781,212 Va. 520 |
| Court | Virginia Supreme Court |
| Parties | Herbert W. CABBLER v. COMMONWEALTH of Virginia. |
John H. Kennett, Jr., Roanoke, for plaintiff in error.
Gilbert W. Haith, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.
Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.
The defendant, Herbert W. Cabbler, appeals from five final orders sentencing him to a total of eleven years in the state penitentiary and fines totaling $1,000.00. Cabbler was convicted on three counts of grand larceny and two counts of petit larceny after a consolidated trial by jury. The jury's finding in each instance was that the larceny was committed by receiving stolen property.
The defendant claims that the trial court erred in three respects. These are: (1) the admission in evidence of stolen goods found in Cabbler's car; (2) the granting of any instructions on receiving stolen property when the Commonwealth elected to rely on the general larceny statutes for conviction; and (3) the granting of other instructions tendered by the Commonwealth setting forth the presumptions which arise from the possession of recently stolen property.
The defendant was arrested at approximately 1:30 a.m. on September 2, 1969, at Community Hospital in Roanoke by Sergeant R. C. Reynolds of the Roanoke Police Department on a felony charge (shooting into an occupied dwelling). The validity of this arrest is not challenged.
Sergeant Reynolds had observed Cabbler enter the hospital after parking his Cadillac automobile. The car was parked in a no parking zone on a private driveway belonging to the hospital in such a manner as to partially block the ambulance driveway leading to the hospital emergency entrance.
After Cabbler's arrest he asked Reynolds to close the windows on his car, which he pointed out to the officer, as it was raining. Reynolds, after closing the car windows, advised Cabbler that the car would be removed from the hospital driveway to the City Garage for safekeeping until Cabbler's release from custody. Cabbler made no complaint or protest to this although he later testified at trial that he had already arranged to have the car 'picked up' by one of his employees.
The car, before being stored in the City Garage, was taken to the police property room where the contents of the car were to be removed, inventoried and stored for safekeeping. It was then that the police discovered the stolen goods that resulted in Cabbler's later convictions.
The defendant argues that discovery of the contraband resulted from an unlawful search and seizure and that this evidence should have been suppressed by the trial court.
The Attorney General does not attempt to justify discovery of the stolen goods as a search incident to a lawful arrest. He says that the action of the police in removing Cabbler's car from the driveway of the hospital to a place of safekeeping and the removal and inventory of the contents of the car were reasonable acts performed under procedures established by the Roanoke Police Department for the protection of property in the possession of a person arrested away from his place of residence.
The evidence discloses that the procedure followed in this case was the result of a long-standing practice and policy of the Roanoke Police Department. One witness testified that this policy was already in effect when he was first employed, more than 28 years earlier, by the department. The policy is that the police, when arresting a person away from his place of residence in possession of property, including automobiles, will take temporary custody of the property for safekeeping unless other immediate means are available to protect such property.
Prior to 1964 or 1965 it was not customary to remove, inventory and separately store the contents of vehicles which came into possession of the police for safekeeping unless the police were specially requested to do so. In 1964 or 1965, however, complaints were made and claims for reimbursement filed by the owners of vehicles who claimed property was lost or stolen while their cars were so stored. The procedure for removal, inventory and separate storage of the contents of vehicles in safekeeping was instituted then in an effort to prevent theft or loss of property from stored vehicles.
It has always been the public policy of the Commonwealth to preserve and protect the individual rights of its citizens. Public policy also dictates that a citizen's rights in his property shall likewise be preserved and protected. Thus it would appear, and we so hold, that the policy established and the procedure followed by the Roanoke Police Department to protect the property of a citizen arrested away from his home in possession of property where no other immediate means is available for safekeeping of such property are reasonable and in accord with the public policy of the Commonwealth set forth earlier.
The Fourth Amendment does not forbid all searches and seizures but only those that are unreasonable. Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Kirby v. Commonwealth, 209 Va. 806, 167 S.E.2d 411 (1969). Whether a particular search is unreasonable within the meaning of the Fourth Amendment depends upon the particular facts and circumstances of the case. Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968); Cooper v. California, 386 U.S. 58, 59, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Preston v. United States, 376 U.S. 364, 366--367, 84...
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United States v. Mitchell
...remanded, 399 U.S. 521, 90 S.Ct. 2236, 26 L.Ed.2d 780 (1970), habeas corpus denied, 429 F.2d 1321 (9th Cir. 1970); Cabbler v. Commonwealth, 212 Va. 520, 184 S.E.2d 781 (1971); People v. Sullivan, 29 N.Y.2d 69, 323 N.Y.S.2d 945, 272 N.E.2d 464 (1971). See also: Comment, The Inventory Search ......
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State v. Craft, s. 14138
......788 at 790, 17 L.Ed.2d 730). The practice has been viewed as essential to respond to incidents of theft or vandalism. See Cabbler v. Commonwealth, 212 Va. 520, 522, 184 S.E.2d 781, 782 (1971), cert. denied, 405 U.S. 1073 (92 S.Ct. 1501, 31 L.Ed.2d 807) (1972); Warrix v. State, ......
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...S.Ct., at 790. The practice has been viewed as essential to respond to incidents of theft or vandalism. See Cabbler v. Commonwealth, 212 Va. 520, 522, 184 S.E.2d 781, 782 (1971), cert. denied, 405 U.S. 1073, 92 S.Ct. 1501, 31 L.Ed.2d 807 (1972); Warrix v. State, 50 Wis.2d 368, 376, 184 N.W.......
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...17 L.Ed.2d 730. The practice has been viewed as essential to respond to incidents of theft or vandalism. See Cabbler v. Commonwealth, 212 Va. 520, 522, 184 S.E.2d 781, 782 (1971), cert. denied, 405 U.S. 1073, 92 S.Ct. 1501, 31 L.Ed.2d 807 (1972); Warrix v. State, 50 Wis.2d 368, 376, 184 N.W......