876 S.E.2d 202
Va. Ct. App.2022Background
- On Nov. 15, 2019 Officer Powell stopped an SUV for expired registration; Street was sole occupant.
- Officer smelled marijuana, searched the vehicle, and found a revolver; Street admitted ownership and had a prior nonviolent felony.
- Street was indicted in 2020 for possession of a firearm after conviction of a nonviolent felony.
- In 2021 the General Assembly enacted Code § 4.1-1302(A) (effective July 1, 2021), prohibiting stops/searches solely for marijuana odor and excluding evidence obtained from such searches.
- In Aug. 2021 Street moved to suppress the 2019 firearm and statements, arguing the 2021 statute applied retroactively as a procedural/evidentiary rule; the trial court denied suppression.
- Street entered a conditional guilty plea preserving the suppression issue on appeal; the Court of Appeals affirmed the denial and conviction.
Issues
| Issue | Plaintiff's Argument (Street) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Whether Code § 4.1-1302(A) applies retroactively to a 2019 search | The statute is procedural/evidentiary and exclusionary remedy should apply to proceedings after enactment | No express retroactive language; statute creates a right that did not exist in 2019, so it cannot be violated then | Not retroactive; statute’s remedy applies only where the subsection was violated (after enactment) |
| Whether the exclusionary provision is a procedural rule under Code § 1-239 requiring conformity of proceedings | The exclusion is a rule of evidence/procedure and thus applies to trials after the statute took effect | The statute’s plain language limits the remedy to violations of the subsection; it does not mandate retroactive application | Statute’s clear language controls; Code § 1-239 does not require retroactive suppression here |
| Whether the firearm and statements seized in 2019 must be suppressed | Evidence is inadmissible under the new exclusionary provision | Evidence admissible because the exclusionary provision does not reach pre-enactment searches | Evidence not suppressed; search lawful under pre-2021 law |
| Whether the statutory word “any” shows retroactive intent (relying on Sussex) | Use of “any” indicates broad/retrospective application | Context limits “any” to proceedings involving a violation of the subsection; Sussex is distinguishable | “Any” is constrained by the statute’s right/remedy structure; Sussex does not control |
Key Cases Cited
- Martin v. Hadix, 527 U.S. 343 (new legislation is presumptively prospective)
- Mason v. Commonwealth, 291 Va. 362 (defendant bears burden to show reversible error in suppression ruling)
- McCarthy v. Commonwealth, 73 Va. App. 630 (retroactivity of statutes is disfavored; remedial/procedural exception)
- Washington v. Commonwealth, 216 Va. 185 (statute amended while action pending applied as of action start unless clear retroactive intent)
- Shilling v. Commonwealth, 4 Va. App. 500 (resolve doubts against retrospective operation of statutes)
- Coles v. Commonwealth, 44 Va. App. 549 (courts follow plain statutory meaning)
- City of Charlottesville v. Payne, 299 Va. 515 (General Assembly knows how to manifest retroactive intent when desired)
- Virginia v. Moore, 553 U.S. 164 (states may grant greater Fourth Amendment protections as state law)