Commonwealth v. Hocutt, Record No. 0104-15-2

• Decision Date: 23 June 2015
• Docket Number: Record No. 0104-15-2
• Court: Virginia Court of Appeals
• Parties: COMMONWEALTH OF VIRGINIA v. HUNTER FRANKLIN HOCUTT

COMMONWEALTH OF VIRGINIA
v.
HUNTER FRANKLIN HOCUTT

Record No. 0104-15-2

COURT OF APPEALS OF VIRGINIA

JUNE 23, 2015

UNPUBLISHED

Present: Chief Judge Huff, Judge Decker and Senior Judge Clements
Argued by teleconference

MEMORANDUM OPINION^* BY JUDGE MARLA GRAFF DECKER

FROM THE CIRCUIT COURT OF HANOVER COUNTY
Patricia Kelly, Judge

Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellant.

Matthew T. Paulk for appellee.

Hunter Franklin Hocutt (the defendant) was indicted for possession of a Schedule I or II substance in violation of Code § 18.2-250. Pursuant to Code §§ 19.2-398 and -400, the Commonwealth appeals a pretrial ruling granting the defendant's motion to suppress evidence recovered as a result of the impoundment and inventory search of his vehicle. The Commonwealth contends that the impoundment was reasonable because the vehicle was rendered unsafe by the defendant's failure to maintain liability insurance coverage on it. The record, viewed under the appropriate legal standard, supports the conclusion that the seizure of the vehicle was unreasonable under the Fourth Amendment in light of the language of the applicable impoundment policy of the law enforcement agency. Thus, we affirm the circuit court's suppression of the evidence obtained as a result of that seizure.

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I. BACKGROUND¹

At 9:00 a.m. on March 4, 2014, Deputy D.T. Parrish of the Hanover County Sheriff's Office initiated a traffic stop of the defendant for driving on a suspended license.² The defendant, in response, pulled his vehicle off the highway and into a marked parking space at a convenience store. During the course of the stop, Deputy Parrish learned that the defendant's license was "suspended for insurance monitoring."³ However, Parrish concluded that the defendant probably did not know that his license had been suspended. As a result, the deputy issued the defendant a notice of suspension, not a citation. He also asked whether the defendant's vehicle was insured. The defendant admitted that it was not.

Parrish testified that he "had to" remove the license plates and tow the vehicle because it was "unsafe to operate without insurance." Parrish also testified that because the sheriff's office rather than the owner "initiat[ed] the tow," he was required to inventory the vehicle. At that time, Deputy Parrish did not intend to arrest the defendant. Pursuant to language in the Hanover County Sheriff's Office policy (the sheriff's office policy or the policy) concerning the impoundment and inventory of vehicles,⁴ Parrish asked the defendant if he had a "preferred tow company." The

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defendant replied that he did not.⁵ As a result, Parrish contacted "communications" and asked to have the next towing company on the sheriff's office list called to tow the defendant's car.

Deputy Parrish told the defendant that he was going to inventory the vehicle pursuant to sheriff's office policy. The search resulted in the discovery of a stun gun, an empty firearm holster, marijuana residue, and drug paraphernalia. Following his arrest, the defendant admitted that he had heroin and additional drug paraphernalia on his person.

The defendant was charged with possession of a controlled substance in violation of Code § 18.2-250. Prior to trial, he filed a motion to suppress the evidence obtained as a result of the inventory search of his vehicle. At a hearing on that motion, Deputy Parrish testified to the events summarized above. At the conclusion of the evidence and argument, the judge granted the motion to suppress.

In the order memorializing her ruling, the judge noted the deputy's statements that the defendant was not in custody prior to the search and that he did not intend to arrest the defendant. The judge found that the defendant parked his vehicle in a marked space in the convenience store's lot and that no evidence indicated the vehicle was "improperly parked, blocking access or interfering with the flow of traffic." As a result, the judge concluded that the factual scenarios under which the sheriff's office policy permitted towing and inventory searches did not include the situation at issue, "namely a vehicle in a parking space." The court further observed a lack of any evidence concerning whether the convenience store was open or closed and whether anyone asked the store's owner if the vehicle could be left in the parking space until the defendant could arrange to have it towed. Additionally, the court noted a lack of evidence establishing that the defendant gave permission for a "search, inventory or tow" of the vehicle. The court found that the record

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established, instead, that the deputy merely asked the defendant if he had a preferred towing company. When the defendant responded that he did not, the deputy said he would use the next one on the list and proceeded to inventory the car.

In granting the motion to suppress, the judge observed that the purpose of an inventory search is to protect citizens from losing property and law enforcement from false claims of lost property. She also noted that such a search cannot be used as a "ruse to search . . . for evidence of a crime." Ultimately, the court found that "the Commonwealth failed to establish the need to tow the vehicle" and if the vehicle did not "need to be towed, an inventory search was not permissible." It also found that the defendant was not in custody and "should have been given the opportunity to retrieve property from his vehicle prior to having it towed by law enforcement."

II. ANALYSIS

The Commonwealth contends on appeal that the circuit court erred in granting the motion to suppress. It argues that the court erroneously concluded that the evidence failed to establish a need to tow the vehicle. It further suggests that the court improperly determined that, because the defendant was not under arrest, he should have been given an opportunity to remove personal possessions from the vehicle before the inventory was conducted. In evaluating the Commonwealth's arguments, we view the evidence under the proper legal standard, in light of the specific language in the applicable sheriff's office policy and the findings made by the circuit court. We hold that the evidence, so viewed, supports the ruling that the decision to impound the vehicle was unreasonable under the Fourth Amendment. Therefore, we affirm the suppression of the evidence without reaching the Commonwealth's second assignment of error.⁶

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On appeal of an order granting a defendant's motion to suppress, the Commonwealth has the burden to show that the ruling constituted reversible error. See Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002). Whether a warrantless seizure violated the Fourth Amendment presents a mixed question of law and fact. Id. This Court gives deference to the circuit court's factual findings and independently determines whether the manner in which the evidence was obtained violated the Fourth Amendment. Id. The trial court is not required to make explicit findings of fact. If it does not, the Court views the evidence in the light most favorable to the prevailing party, here the defendant, granting to the evidence all reasonable inferences fairly deducible from that evidence. See Satchell v. Commonwealth, 20 Va. App. 641, 648, 460 S.E.2d 253, 256 (1995) (en banc). Whether impoundment of a vehicle was reasonable, like other Fourth Amendment determinations of reasonableness, is ultimately a legal issue reviewed de novo on appeal. See Butler v. Commonwealth, 31 Va. App. 614, 617, 525 S.E.2d 58, 59 (2000).

The Fourth Amendment's "community caretaking doctrine" permits law enforcement to impound a vehicle and inventory its contents under certain circumstances. King v. Commonwealth, 39 Va. App. 306, 309-10, 572 S.E.2d 518, 520 (2002) (citing South Dakota v. Opperman, 428 U.S. 364 (1976); Cady v. Dombrowski, 413 U.S. 433 (1973)). The analysis involves two separate inquiries: whether the impoundment was lawful and, if so, whether the inventory search was lawful. Id. at 311, 572 S.E.2d at 520; see Servis v. Commonwealth, 6 Va. App. 507, 520-21, 371 S.E.2d 156, 163 (1988).

This appeal turns on the reasonableness of the impoundment rather than the inventory. An impoundment is reasonable under the Fourth Amendment if it occurs pursuant to a statute or

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standard police procedures and is not a pretext concealing an investigatory motive.⁷ Williams v. Commonwealth, 42 Va. App. 723, 731, 594 S.E.2d 305, 309 (2004); see United States v. Sawyer, 441 F.3d 890, 897 (10th Cir. 2006) (recognizing impoundment authorized by statute). The purpose of the requirement that the impoundment must occur pursuant to standard procedures is to "circumscribe the discretion of individual officers." See Colorado v. Bertine, 479 U.S. 367, 376 n.7 (1987) (applying this principle to inventory searches). This requirement alerts each officer to "the constitutionally permissible limits of conduct in a given situation" and helps minimize the risk that an impoundment is pretextual. People v. Toohey, 475 N.W.2d 16, 23, 25 (Mich. 1991). The requirement does not mean that officers may not exercise any discretion. Bertine, 479 U.S. at 375. It means simply that the discretion must be exercised "according to standard criteria and on the basis of something other than suspicion of evidence of criminal...