King v. Com.

• Court: Virginia Court of Appeals
• Writing for the Court: ROSEMARIE.
• Citation: King v. Com., 572 S.E.2d 518, 39 Va. App. 306 (Va. App. 2002)
• Decision Date: 03 December 2002
• Docket Number: Record No. 2815-01-4.
• Parties: Antonio Frederick KING v. COMMONWEALTH of Virginia.

572 S.E.2d 518

39 Va. App. 306

Antonio Frederick KING v. COMMONWEALTH of Virginia.

Record No. 2815-01-4.

Court of Appeals of Virginia, Alexandria.

December 3, 2002.

Martin W. Lester, Public Defender, for appellant.

Kathleen 13. Martin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: ELDER, ANNUNZIATA and AGEE, JJ.

ROSEMARIE, Judge.

On February 21, 2001, Arlington County Sheriffs Deputy Randy Hill stopped Antonio Frederick King, the appellant, for a traffic violation. After determining that King was driving on a suspended Virginia license, Hill impounded his vehicle and conducted an inventory search. The trial court denied King's motion to suppress evidence found as a result of that search. It is from this ruling that King appeals. For the reasons that follow, we reverse.

Background

In reviewing the trial court's denial of the motion to suppress, we view the evidence in the light most favorable to the Commonwealth, the party prevailing below, and grant to it all reasonable inferences fairly deducible therefrom. See Dickerson v. Commonwealth, 35 Va.App. 172, 177, 543 S.E.2d 623, 626 (2001) (citing Greene v. Commonwealth, 17 Va.App. 606, 608, 440 S.E.2d 138, 139 (1994)). So viewed, the evidence establishes that Hill stopped King for speeding and verified that he was driving on a valid Maryland license, but determined his Virginia license had been suspended for failure to pay fines. Hill issued King a summons for reckless driving and driving on a suspended license.

After King acknowledged he had received notice of his Virginia license's suspension, Hill impounded King's vehicle for "safekeeping," pursuant to the sheriffs department policies. Departmental policy describes the decision to impound a vehicle as a "judgment call" to be made by the deputy who makes the stop. Impoundment is "highly recommended" under the policy, and Hill's common practice was to have the vehicle towed if the driver did not have someone available to drive it from the site, even if the vehicle was legally parked.

King's vehicle was stopped on a two-lane "very heavily congested" street. An elementary school and other public buildings, including a library, were located nearby. Hill testified that he "wouldn't put a vehicle there and just leave it there" because the street was congested, and it was "not a rural street [where one would] leave a vehicle." However, the vehicle was not impeding traffic and there was no evidence it was in a no-parking or otherwise restricted zone.

The inventory search Hill performed before the vehicle was towed yielded a bag of money "halfway hidden" behind a spare tire on the left rear side of the vehicle and another bag of money inside a blue "lunch zip tight bag." King explained that the money had been in his possession for two days, as an employee of a vending company. Ultimately, the money, totaling $2,289.95, was determined to have been stolen from a vending company in Fairfax, Virginia. Hill also found two crowbars, four screwdrivers, miscellaneous Allen wrenches, keys, and two pairs of gloves in the vehicle.

The trial court denied King's pretrial motion to suppress the evidence, accepting the Commonwealth's argument that Hill had properly impounded and searched the vehicle under the community caretaker function. The court found Hill's decision to impound the vehicle "eminently sensible," given that the area where the stop occurred was congested.¹

Analysis

In reviewing the trial court's denial of a motion to suppress on appeal, we will review the evidence in the light most favorable to the Commonwealth, the party prevailing below, together with all reasonable inferences that may be drawn. See Dickerson, 35 Va. App. at 177, 543 S.E.2d at 626. The burden to establish that the denial of the motion to suppress constituted reversible error rests with the defendant. See Motley v. Commonwealth, 17 Va.App. 439, 440-41, 437 S.E.2d 232, 233 (1993). The Fourth and Fourteenth Amendments to the United States Constitution forbid using evidence at trial obtained as a result of an unreasonable search and seizure and a warrantless search is per se unreasonable unless it falls within one of the few "specifically established and well-delineated exceptions" to the warrant requirement. McNair v. Commonwealth, 31 Va. App. 76, 82, 521 S.E.2d 303, 306 (1999).

In the context of the Fourth Amendment, "`[u]ltimate questions of reasonable suspicion and probable cause ... involve questions of both law and fact and are reviewed de novo on appeal.'" McGee v. Commonwealth, 25 Va.App. 193, 197-98, 487 S.E.2d 259, 261 (1997)(en bane ) (quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). However, the appellate court is "bound by the trial court's findings of historical fact unless 'plainly wrong' or without evidence to support them and [it] give[s] due weight to the inferences drawn from those facts by resident judges and local law enforcement officers." Id. at 198, 487 S.E.2d 259, 487 S.E.2d at 261 (citing Ornelas, 517 U.S. at 699,116 S.Ct. 1657). The trial court's legal conclusion concerning when, or whether, a seizure or search occurred is reviewed de novo. See McNair, 31 Va.App. at 82,521 S.E.2d at 306; see also McGee, 25 Va.App. at 198,487 S.E.2d at 261; United States v. Mendenhall, 446 U.S. 544, 552, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497 (1980).

In the case at bar, the Commonwealth justifies the search of King's car under the "community caretaking doctrine." See generally South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). In Opperman, the car in question had been illegally parked in a restricted zone for at least seven hours, and had been issued multiple citations for parking violations. See Opperman, 428 U.S. at 366, 96 S.Ct. at 3095. The Supreme Court upheld the subsequent inventory search as valid, on the ground that the owner of the vehicle was not present to safeguard his belongings, which were inside the vehicle and clearly visible to the police. See id. at 368, 96 S.Ct. at 3097. The Court stated "[lin the interests of public safety and as a part of what the Court has called 'community caretaking functions,' automobiles are frequently taken into police custody." Id. The Court gave two examples of circumstances warranting the application of the doctrine: vehicles disabled or damaged in an accident, and vehicles in violation of parking ordinances. "To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic-control activities." Id. Additionally, the Court noted that vehicles "violatfingl parking ordinance[s] . . . jeopardize both public safety and the efficient movement of vehicular traffic . . " Id.

In Cady, a police officer, who was required to carry his service revolver at all times, had a one-car accident near a small town. See Cady, 413 U.S. at 433, 93 S.Ct. 2523. His car crashed into a bridge abutment just off the highway and was disabled. The officer was arrested for drunk driving and removed from the scene. See id. The Court found the vehicle constituted a "nuisance on the highway" and, therefore, was properly impounded before a valid inventory search was conducted. See id. at 442-43, 93 S.Ct. at 2529. Additionally, the Cady Court noted the responding police officer's concern that the driver's service revolver might be in the car and susceptible to theft by vandals if the car had been left on the highway. See id.

The Virginia Supreme Court, in Reese v. Commonwealth, 220 Va. 1035, 265 S.E.2d 746 (1980), grounded the warrantless inventory exception to the Fourth Amendment in the same policy considerations identified in Opperman and Cady: the need to 1) protect the owner's property while it remains in police custody, 2) protect the police against claims, or disputes concerning lost or stolen property, and 3) protect the public and the police from physical danger. See Reese, 220 Va. at 1039, 265 S.E.2d at 749. In addition to these policy considerations, this Court has held that, to justify a warrantless inventory search by the police, the Commonwealth must show 1) the vehicle was lawfully impounded, 2) pursuant to standard police procedures and 3) the impoundment and subsequent search are not a pretext concealing an investigatory motive. See Servis v. Commonwealth, 6 Va.App. 507, 521, 371 S.E.2d 156, 163 (1988).

The validity of the impoundment is a question separate from the validity of the subsequent inventory search and must be determined first. See generally, Opperman; Cabbler v. Commonwealth, 212 Va. 520, 184 S.E.2d 781 (1971). Relying on this Court's holding in Servis, King contends his car was not lawfully impounded, thus invalidating the subsequent search. In Servis, the police responded to an attempted break-in report at a local motel. The officers learned from the front desk clerk that a car in the parking lot belonged to the defendant. See Servis, 6 Va.App. at 511,371 S.E.2d at 157. After finding drug paraphernalia in Servis' room, the police arrested him and brought him before a magistrate. See id. When the motel clerk declined to take responsibility for the defendant's car, as requested by police, the officer made arrangements to have the car towed. In anticipation of the impoundment, he conducted an inventory search of the car. See id. at 512-13, 371 S.E.2d at 158.

In affirming the trial court's denial of Servis' motion to suppress, we held that "[a] routine inventory search of a lawfully impounded vehicle conducted pursuant to standard police procedure is reasonable under the Fourth Amendment unless it is 'a pretext concealing an investigatory motive.'" Id. at 521, 371 S.E.2d at 163 (quoting Opperman, 428 U.S. at 368-69, 96...