Knight v. Commonwealth

Citation71 Va.App. 771,839 S.E.2d 911
Decision Date07 April 2020
Docket NumberRecord No. 0323-19-1
CourtCourt of Appeals of Virginia
Parties Adrian KNIGHT v. COMMONWEALTH of Virginia

James O. Broccoletti, Norfolk (Randall J. Leeman, Jr. ; Zoby, Broccoletti & Normile, P.C., on brief), for appellant.

Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Petty, Russell and Malveaux

OPINION BY JUDGE WILLIAM G. PETTY

In this appeal, we consider whether the trial court erred in denying a motion to suppress evidence it concluded inevitably would have been discovered by officers after an unlawful search. For the reasons stated below, we will reverse the judgment of the trial court.

I. BACKGROUND

Adrian Knight was charged with possession of a firearm by a convicted felon in violation of Code § 18.2-308.2 and carrying a concealed weapon in violation of Code § 18.2-308. Knight filed a motion to suppress the evidence found during his arrest, arguing the search yielding the evidence was unlawful. During a hearing on Knight’s motion, the trial court heard testimony from Officer Michael Santare and Officer Logan Luketic of the Norfolk Police Department and accepted into evidence the body camera videos of the two officers.

The officers testified that on January 23, 2018, Officers Santare and Luketic conducted a traffic stop of a car that had no front or back license plates. The only occupants of the car were Knight, who was driving, and a passenger. Knight explained the missing license plates by stating he was a car dealer, the car was not his, he had just bought it at an auction, and he had a temporary dealer tag that must have fallen off. When Officer Santare asked for the car registration, Knight reached into the back seat and retrieved a backpack, which he rummaged in while looking for the registration. Knight produced a driver’s license but was not able to find the registration. Officer Santare asked for license plate information, and Knight again rummaged through the backpack while it was on his lap. Again, he was not able to find the information, so Officer Santare wrote down the car’s VIN number. Officer Santare told Knight he would be free to go if the information regarding the car was confirmed. Knight replied he would likely park the car nearby because of the missing plates. The officers had stopped the car in a travel lane of a busy street.

Officer Santare and Officer Luketic left Knight and his passenger in Knight’s car and returned to the police car to verify the information. Officer Santare testified the officers observed no indication of criminal activity, saw no furtive movements by the occupants, and smelled no drugs in the car. Video from the officers’ body cameras shows that while waiting for dispatch to verify the car’s registration, the two officers discussed whether, and how, they could search the car for weapons and drugs. Officer Santare suggested that they ask for consent to search the car and if the occupants say "no" then "there’s definitely something in that f***ing car." When dispatch notified the officers that Knight had a warrant for failure to pay court costs, Officer Santare pumped his fist in a "yes!!!" gesture. Officer Luketic suggested they could now search the driver’s immediate area as a search incident to arrest. Officer Santare responded, "He’s the driver, that’s the whole car. It sucks to suck." At the suppression hearing, Officer Santare explained that his statement about searching the whole car meant the officers would have to take an inventory of the vehicle because the car would have to be towed. Officer Santare also testified that in conducting the inventory search, "there would be a decent likelihood that there could be a weapon in the vehicle, so that’s kind of what would be on [their] minds" while searching the car.

Officer Santare ordered Knight out of the driver’s side of the car, handcuffed him, and searched his pockets. In one pocket there was about $1000 in cash. Officer Santare informed Knight that they were verifying the warrant information and, if the warrant was still active, they would arrest him. Officer Santare offered Knight the option of having the passenger take possession of the cash. Knight accepted the option, and the cash eventually was given to the passenger. Knight protested that he knew of no warrant, and Officer Luketic assured Knight from the passenger side of the car that they were verifying the warrant because sometimes it is not removed from the system. Nevertheless, as soon as Knight was placed behind his car, Officer Luketic moved to the driver’s side to begin searching. Knight protested the search of his car, but Officer Santare told him the car was being searched because it needed to be towed. Knight again protested the search and asked if someone could just move the car to a parking place. Knight again objected from where he stood handcuffed behind the car. Officer Luketic paused to yell, "Are you going to tell me how to do my job?" He then leaned into the car and began searching.

Officer Luketic first pulled up the driver’s side floor mat and looked underneath. Then he reached under the front driver’s seat. Officer Santare had placed the small items from Knight’s pocket on the driver’s seat. Officer Luketic moved those items to the floor—without inventorying them—and searched the folds of the seat. Officer Luketic rechecked under the floor mat and driver’s seat. He then rifled through the contents of the center console. He opened a file folder that was between the seats, flipped through the contents, and then reached between the seats. He examined the folds and seams of the cloth cover on the passenger seat, including turning it inside out and carefully squeezing the folds. He emptied a large envelope of car parts, and then placed the items back in the envelope. At no time during this search did he record the contents of the car. Officer Luketic then reached into the back seat and grabbed Knight’s backpack. He unzipped the backpack and found a gun inside. After he radioed his partner and secured the gun, he continued to search the rest of the car. Other than the gun, no contraband was found in the car.2

Officer Santare, who had not participated in the search, completed a PD Form 924 "Vehicle Tow/Impound Record." On the form, classification of tow is marked as "prisoner’s vehicle" and not "traffic hazard." The only things listed in the inventory section of the form are "laptop" and "various tools." The back of the form directs that the officer will "read [the options listed] to operator who will sign the front of the form." The options include towing by a wrecker of operator’s choice, leaving the vehicle legally parked, or leaving it in the care of a responsible licensed driver. It also has an option to indicate the operator refused or was unable to choose an option. The form stated that "[v]ehicles towed to the [police department] compound will be inventoried in accordance with this order." No option was selected, and Knight did not sign the front of the form.

In their testimony, both officers justified the search of the car as an inventory search prior to towing the car; both officers also admitted they listed the search as "incident to arrest" in their report summaries. Both officers testified they had the discretion to move the car to a safe parking place. Officer Santare testified it is not against departmental policy for someone to move the car from its location to a legal parking space. He testified, "It’s not against departmental policy. However, there is nowhere it states that I have to do that." He added that he would have had to drive the car "halfway around the block to park it." Officer Luketic testified that there was a parking lane on the opposite side of the road, but not on the side the car was parked. In answer to a question by the trial court, Officer Santare testified that departmental policy gives discretion to the arresting officer whether to have the car towed or parked in a safe place off the traveled portion of the road.

Knight did not call witnesses during the hearing but entered into evidence the Norfolk Police Department’s towing and inventory policy (NPD inventory policy). The NPD inventory policy gives three options to a driver who is arrested and whose vehicle is not a traffic hazard, including the option to properly park the car. The NPD inventory policy also states, "Any vehicle towed ... as a traffic hazard will be inventoried by the wrecker driver if entry is accessible." In a separate section, the NPD inventory policy covers inventory procedures. It states, "An inventory is an administrative process by which property within an impounded vehicle is listed, secured, and protected. It will not be used as a substitute for a search warrant." The inventory procedure directs that "[w]hen an officer discovers any firearm(s) or money in excess of $5.00, this property will be vouchered and listed on inventory."

After both the hearing, which included extensive argument by counsel, and additional briefing by both parties, the trial court denied Knight’s motion. It first concluded there was no probable cause to search Knight’s car. It then found "the inventory search was motivated by a desire [by the officers] to investigate." The trial court observed that the officers "wanted to search [Knight’s] car" and that the "reaction of the officers to the news there was an outstanding warrant for Knight can best be described as joyful." The trial court noted the discussion between the officers of how and to what extent they could conduct a search. Once Knight was taken into custody, the search of the car looked more like an investigation than an inventory. The trial court noted that the NPD inventory policy "provides a PD Form 924 will be prepared when an inventory is conducted." Nevertheless, the court found "Officer Luketic’s video show[ed] he was not completing the PD 924 as he conducted the search, nor calling...

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4 cases
  • Daye v. Commonwealth
    • United States
    • Virginia Court of Appeals
    • November 22, 2022
    ...that the evidence would have been discovered by lawful means but for the police misconduct. See, e.g., Carlson, 69 Va.App. at 763; Knight, 71 Va.App. at 788; see United States v. Jackson, 596 F.3d 236 (5th Cir. 2010); United States v. Smith, 21 F.4th 510 (8th Cir. 2021). Other jurisdictions......
  • Intercept Youth Servs., Inc. v. Estate of Lopez
    • United States
    • Virginia Court of Appeals
    • April 7, 2020
  • Adams v. Commonwealth
    • United States
    • Virginia Court of Appeals
    • December 13, 2022
    ...411, 413 (2017)). In contrast, whether the facts establish a Fourth Amendment violation is reviewed de novo. See Knight v. Commonwealth, 71 Va.App. 771, 783 (2020). As such, the reviewing court "independently determine[s] whether the manner in which the evidence was obtained meets the requi......
  • Commonwealth v. Hendrick
    • United States
    • Virginia Court of Appeals
    • December 29, 2022
    ...scope of a sweep, and thus the trial court did not err in suppressing the recovered drugs. See generally Knight v. Commonwealth, 71 Va.App. 771, 783-87 (2020) (affirming trial court's finding that an "inventory search" of the defendant's car was in fact an improper investigatory search for ......

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