Commonwealth v. Hackett, Record No. 2594-07-2 (Va. App. 3/11/2008), Record No. 2594-07-2.
| Decision Date | 11 March 2008 |
| Docket Number | Record No. 2594-07-2. |
| Court | Virginia Court of Appeals |
| Parties | COMMONWEALTH OF VIRGINIA v. DAVID KURNARD HACKETT. |
Appeal from the Circuit Court of the City of Fredericksburg, J. Peyton Farmer, Judge Designate.
Craig W. Stallard, Assistant Attorney General (Robert F. McDonnell, Attorney General, on briefs), for appellant.
Patricia Kelly (Woodbridge, Ventura & Kelly, P.C., on brief), for appellee.
Present: Judges Elder, Frank and Millette.
David Kurnard Hackett (defendant) stands indicted for possession of a controlled substance with intent to distribute. Pursuant to Code § 19.2-398, the Commonwealth appeals a pretrial ruling granting defendant's motion to suppress the evidence upon which he was indicted for possessing a controlled substance, which police obtained after viewing what they believed was an illegal drug transaction that occurred on defendant's property. This appeal raises two issues: the first, raised sua sponte by this Court, is whether the Commonwealth's failure to comply with the certification requirement of Code § 19.2-400 represented a jurisdictional defect requiring dismissal of the appeal; and the second, raised by the Commonwealth, concerns whether the trial court's ruling suppressing the evidence was erroneous. We hold the failure to make the certification required by the statute is not a jurisdictional defect and that the trial court's ruling suppressing the evidence was not error. Thus, we affirm the granting of the motion and remand for additional proceedings consistent with this opinion if the Commonwealth be so advised.
Two different statutory provisions reference the requirement of a certification by the Commonwealth in the context of pre-trial appeals. Code § 19.2-398 provides:
A. In a felony case a pretrial appeal from a circuit court may be taken by the Commonwealth from:
* * * * * * *
2. An order of a circuit court prohibiting the use of certain evidence at trial on the grounds such evidence was obtained in violation of the provisions of the Fourth, Fifth or Sixth Amendments to the Constitution of the United States or Article I, Section 8, 10 or 11 of the Constitution of Virginia prohibiting illegal searches and seizures and protecting rights against self-incrimination, provided the Commonwealth certifies that the appeal is not taken for purpose of delay and that the evidence is substantial proof of a fact material in the proceeding.
(Emphasis added). Code § 19.2-400 contains similar certification language, providing:
No appeal shall be allowed the Commonwealth pursuant to subsection A of § 19.2-398 unless within seven days after entry of the order of the circuit court from which the appeal is taken, and before a jury is impaneled and sworn if there is to be trial by jury or, in cases to be tried without a jury, before the court begins to hear or receive evidence or the first witness is sworn, whichever occurs first, the Commonwealth files a notice of appeal with the clerk of the trial court. If the appeal relates to suppressed evidence, the attorney for the Commonwealth shall certify in the notice of appeal that the appeal is not taken for the purpose of delay and that the evidence is substantial proof of a fact material to the proceeding. All other requirements related to the notice of appeal shall be governed by Part Five A of the Rules of the Supreme Court.
(Emphasis added).
We have previously held that, because Code § 19.2-398 "'is in derogation of the general constitutional prohibition against appeals by the Commonwealth[,] . . . [i]t "must be strictly construed against the state and limited in application to cases clearly falling within the language of the statute."'" Commonwealth v. Thomas, 23 Va. App. 598, 607, 478 S.E.2d 715, 719 (1996) (quoting Commonwealth v. Hawkins, 10 Va. App. 41, 44, 390 S.E.2d 3, 5 (1990) (citations omitted)). Nevertheless, we have concluded Code § 19.2-398 does not permit us to review for accuracy the certification required therein and to dismiss for want of jurisdiction any Commonwealth appeal for which we conclude the evidence suppressed is not "essential to the prosecution." Id. at 608-09, 478 S.E.2d at 719-20 (). Instead, we have held the prosecutor's certification pursuant to Code § 19.2-398 "is not reviewable on appeal." Id. at 609, 478 S.E.2d at 720. Similarly, here, we hold that the absence of that certification is not fatal to our acquisition of jurisdiction.
The Supreme Court "[has] repeatedly held," in both the civil and criminal context, "'that the use of "shall," in a statute requiring action by a public official, is directory and not mandatory unless the statute manifests a contrary intent.'" Butler v. Commonwealth, 264 Va. 614, 619, 570 S.E.2d 813, 816 (2002) (quoting Jamborsky v. Baskins, 247 Va. 506, 511, 442 S.E.2d 636, 638 (1994)); see also Nelms v. Vaughan, 84 Va. 696, 699-700, 5 S.E. 704, 705-06 (1888). "'[A] statute may be mandatory in some respects, and directory in others.'" Ladd v. Lamb, 195 Va. 1031, 1035, 81 S.E.2d 756, 759 (1954) (quoting 82 C.J.S. Statutes § 374, at 868 (1953)).
Code § 19.2-400 contains both language that is mandatory and language that is directory. The statute contains mandatory language that "[n]o appeal shall be allowed . . . pursuant to . . . [§ 19.2-398(A)] unless within seven days after entry of the order . . ., the Commonwealth files a notice of appeal with the clerk of the trial court." Code § 19.2-400 (emphasis added); cf. Johnson v. Commonwealth, 1 Va. App. 510, 511-12, 339 S.E.2d 919, 920 (1986) (); Riner v. Commonwealth, 40 Va. App. 440, 454, 579 S.E.2d 671, 678 (2003) (), aff'd on other grounds, 268 Va. 296, 601 S.E.2d 555 (2004). However, we hold the language in Code § 19.2-400 stating what the notice of appeal "shall" contain, along with almost identical language in § 19.2-398, is directory only. See Riner, 40 Va. App. at 454, 579 S.E.2d at 678 (). Thus, the Commonwealth's failure to file the certification described in Code §§ 19.2-398 and -400 is not jurisdictional.1
Persuasive authority supports this result. In holding in Thomas, 23 Va. App. at 608-09, 478 S.E.2d at 720, that the Court was not permitted under an earlier version of Code § 19.2-398 to review the certification for accuracy, we concluded that in order to interpret the certification language, we may look to federal case law interpreting a similar federal statute. The corresponding federal statute, 18 U.S.C. § 3731, contains certification language very similar to that in Virginia's statutes, expressly authorizing an appeal "'of a district court order suppressing or excluding evidence . . . if the United States attorney certifies to the district court that the appeal is not taken for purposes of delay and that the evidence is a substantial proof of a fact material to the proceeding.'" United States v. Hatfield, 365 F.3d 332, 337 (4th Cir. 2004). The United States Circuit Courts of Appeals, including our own Fourth Circuit, agree "that the certification requirement [in the federal statute] is not jurisdictional." Id.; see also In re Grand Jury Subpoena, 175 F.3d 332, 337 (4th Cir. 1999).
Accordingly, we proceed to address the merits of the appeal.
In reviewing the trial court's ruling on a motion to suppress, "'"[w]e are bound by the trial court's findings of historical fact unless 'plainly wrong' or without evidence to support them," [and] we review de novo the trial court's application of legal standards . . . to the particular facts of the case.'" Robinson v. Commonwealth, 47 Va. App. 533, 544, 625 S.E.2d 651, 656 (2006) (en banc) (quoting McCracken v. Commonwealth, 39 Va. App. 254, 258, 572 S.E.2d 493, 495 (2002) (en banc) (quoting McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc))), aff'd, 273 Va. 26, 44, 639 S.E.2d 217, 227 (2007); see Logan v. Commonwealth, 46 Va. App. 213, 219, 616 S.E.2d 744, 747 (2005) ().
At a hearing on a defendant's motion to suppress evidence allegedly obtained in violation of the Fourth Amendment, the defendant has the burden of proving he had a reasonable expectation of privacy in the place searched, Barnes v. Commonwealth, 234 Va. 130, 135, 360 S.E.2d 196, 200 (1987) (citing Rakas v. Illinois, 439 U.S. 128, 131 n.1, 99 S. Ct. 421, 424 n.1, 58 L.Ed.2d 387, 393 n.1 (1978)), and the Commonwealth has the burden of proving that the relevant search or seizure did not violate the defendant's Fourth Amendment rights, Simmons v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989); Alexander v. Commonwealth, 19 Va. App. 671, 674, 454 S.E.2d 39, 41 (1995). "Absent clear evidence to the contrary in the record, the judgment of a trial court comes to us on appeal with a presumption that the law was correctly applied to the facts," Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286,...
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