One 1963 Chevrolet Pickup Truck v. Com.
| Decision Date | 15 January 1968 |
| Citation | 158 S.E.2d 755,208 Va. 506 |
| Court | Virginia Supreme Court |
| Parties | ONE 1963 CHEVROLET PICKUP TRUCK et al. v. COMMONWEALTH of Virginia. |
James M. Roe, Jr., Fincastle (Carter & Roe, Fincastle, on brief), for plaintiffs in error.
William P. Bagwell, Jr., Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.
Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON, and HARRISON, JJ.
This litigation was commenced when the Commonwealth's Attorney filed in the trial court an information (Code, § 4--56(d)) alleging that an 'ABC Investigator' had seized a 1963 Chevrolet pickup truck purportedly owned by Thomas J. Mull 'for the reason that at the time' of seizure alcoholic beverages were being illegally transported in the vehicle. (Code, § 4--72.) The information prayed that the vehicle be condemned and sold and the proceeds thereof disposed of according to law.
Notice of the information was served on Mull and on the holder of a lien on the vehicle. Mull posted bond and secured release of the vehicle from seizure. (Code, § 4--56(e).)
The trial court heard the evidence and ordered forfeiture of the bond posted by Mull. To the final order embodying that action, we granted Mull a writ of error.
A scanty narrative statement contained in the record shows that on March 14, 1966, 'A.B.C. Agent' G. M. Whiteside, 'acting on prior knowledge and information,' stopped Mull's vehicle on the highway; that the agent 'observed a quantity of alcoholic beverages on the front seat' and 'some sacks in the vehicle and * * * some bottle tops (or tops of bottles) that he concluded were alcoholic beverages'; that the agent 'proceeded to search the truck and found four gallons of A.B.C. liquor'; and that 'he stopped the vehicle and searched it without a search warrant.'
The dispute in the trial court revolved around the application of Code, § 4--56, a part of The Alcoholic Beverage Control Act. That Code section provides that where any officer charged with enforcement of the alcoholic beverage laws shall have reason to believe that alcoholic beverages are being illegally transported in a vehicle, it shall be his duty to obtain a legal search warrant and search such vehicle. If alcoholic beverages being illegally transported are found in the vehicle, the officer shall seize the beverages and also shall seize the vehicle and arrest all persons found in charge thereof. Other portions of the Code section prescribe the procedure for forfeiture of the vehicle by the court and provide that the alcoholic beverages seized shall be deemed contraband.
At the outset of our consideration of this case, we are confronted with a woefully inadequate record. We are called upon by Mull to reverse a judgment, which is presumed to be correct, in a situation where it is difficult to tell what points were relied upon in the trial court and what questions were properly preserved for appeal.
Mull's brief only adds to the problem. In the opening part of the brief, it is stated that four questions, with one question divided into two parts, are involved. However, when we turn to the argument portion of the brief, we find that only one question is actually argued.
From an examination of the record and an analysis of Mull's argument, we believe there is properly presented for decision but one question and that is one of law: whether, under Code, § 4--56, the issuance of a search warrant is, in all instances, a condition precedent to the valid seizure and forfeiture of a vehicle used for the illegal transportation of whiskey.
We agree with Mull that as the result of the holding in the recent case of One Plymouth Sedan v. Commonwealth of Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170, the rule excluding evidence obtained by a search and seizure unlawful under the Fourth Amendment to the Constitution of the United States is now applicable to state forfeiture proceedings. But we cannot agree with Mull's contention that the effect of that holding as related to a failure to secure a search warrant under Code, § 4--56, is to preclude forfeiture, as a matter of law, in every case.
We also agree with Mull that we have said of Code, § 4--56 that it is without ambiguity and must be construed according to the ordinary and reasonable meaning of the language employed. Cason v. Commonwealth, 181 Va. 297, 303, 24 S.E.2d 435, 437. And we recognize, as Mull asserts, that Code, § 19.1--88 prohibits search without a warrant and makes it a misdemeanor for an officer or other person to do so. But, contrary to what Mull says, it does not necessarily follow from the foregoing that the legislature intended by the enactment of Code, § 4--56 to limit the search and seizure power of officers charged with enforcing the alcoholic beverage laws to those instances where such officers are armed with search warrants.
'It must always be remembered that what (the Fourth Amendment to) the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.' Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669, 1680. And we have said of our statutes (Code, §§ 19.1--85 to 19.1--89) providing for the issuance of search warrants and forbidding search without a warrant that their requirements are the same in substance as those contained in the Fourth Amendment to the Constitution of the United States. Zimmerman v. Town of Bedford, 134 Va. 787, 801--802, 115 S.E. 362, 366.
In construing the provisions of the federal constitution, the federal courts have recognized, and in construing constitutional and statutory provisions, this court has recognized, that a search and seizure without a warrant is not unlawful if reasonable. For example, a search and seizure is not unlawful, despite the lack of a search warrant, if it occurs:
(1) Where the search is consented to, Drummond v. United States, 350 F.2d 983, 988--989 (8th Cir. 1965); Rees v. Commonwealth, 203 Va. 850, 864--866, 127 S.E.2d 406, 416--417, cert. denied, 372 U.S. 964, 83 S.Ct. 1088, 10 L.Ed.2d 128;
(2) Where the search is incident to a lawful arrest, United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, 657; Morris v. Commonwealth, 208 Va. 331, 334, 157 S.E.2d 191, 194; and
(3) Where the search is of abandoned premises or property, Feguer v. United States, 302 F.2d 214, 248--250 (8th Cir.1962), cert....
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