*1 deep sleep any particular not attribute Morris’s cause. did And, exclude all reason- because the Commonwealth did not innocence, insufficient, hypotheses able the evidence as law, willfully engaged a matter of that Morris establish alleged that she was knowledge exposing conduct with children to a risk of harm. I bodily her substantial Because to prove would hold the evidence was insufficient criminal I would reverse and dismiss Morris’s convictions negligence, 371.1(B)(1). Thus, I violating respectfully 18.2— dissent.
Richmond.
Nov. *3 CMttom, Jane Appellate (Virginia Indigent S. Defender Commission, brief), appellant. Defense on for (Judith Parrish, L. Attorney Susan Assistant General General, brief), Jagdmann, Attorney appellee. Williams on for FITZPATRICK, C.J., BENTON, ELDER, Present: BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS, FELTON, KELSEY, HALEY, McCLANAHAN and JJ.
HUMPHREYS, Judge. This matter comes rehearing before Court on en banc from a divided panel opinion February issued 2005. David (“Moore”) Lee Moore that his argues appeal conviction for possession of cocaine with intent should distribute be reversed because trial court in denying erred his motion to suppress. Moore reasons because his underlying arrest on a driving suspended license violated both Code 19.2- 74(A)(1) and the Fourth Amendment to the United States Constitution, during the evidence uncovered the search inci- suppressed. dent to that arrest must be For the reasons that follow, affirm his conviction.
I. Background evidence, appeal, On we review the and all reasonable therefrom, inferences light deducible most favorable to Commonwealth, prevailing party below. Garcia v. 40 Va.App. viewed, following. So the evidence establishes the
On February KarpowsM Detective B.J. overheard police a conversation on his radio between McAndrew Officers discussing and The officers were the fact that a Anthony. in driving man nicMiamed “Chubs” was a car the area. Draw- just ing Miowledge that man nicMiamed “Chubs” had penitentiary driving from a and was on a been released federal license, officers and suspended KarpowsM radioed the other stop told the vehicle driven “Chubs.”1 them Karpowski’s Anthony responded and McAndrew Officers Moore, Anthony whom Officer message stopped radio and not the Although nicknamed “Chubs.” Moore was knew was message, in Karpowski man referred to his radio Detective was, fact, in driving determined that Moore Anthony Officer on a license. suspended suspended, license was Offi- confirming
After Moore’s Moore, him, him handcuffed and advised Anthony cer arrested if of his then asked Moore rights. Anthony Miranda Officer he understood his that he rights, acknowledged and Moore Anthony did. Moore where he was staying Officer asked if any person. voluntarily he had narcotics on his Anthony staying Econo-Lodge told Officer that he was in Chesapeake. Moore was then taken to Officer McAndrew’s vehicle, where Moore a waiver of signed allowing consent officers to search his hotel room.2 Moore was placed then However, police Officer McAndrew’s car. due to a miscommu- nication, neither officer conducted search incident to arrest fact, time. Officer McAndrew was “under impression that had prior placing been searched [Moore] him in my police vehicle.” car,
Once Moore was in the the officers placed called animal control pick up dog riding that was Moore’s later, vehicle.3 animal control forty-five After arrived minutes Karpowski 1. Detective had checked the driver’s license of a man named before, driving "Chubs” the week and had determined he was on a However, suspended Karpowski license. the man knew to be nick- Christopher Delbridge, named "Chubs” was a man named not David Moore. Anthony happened "approximately 2. Officer testified this all fifteen stopped.” minutes after we had him bull, dog pit "very upset 3. The officers believed the was a and it was presence]” "big enough” detectives’ [the the officers "did get argues not want too close to it.” The Commonwealth on brief dog's presence was a factor in the officers’ determination that driving Moore would be unable to discontinue the unlawful act of on a suspended license. The Commonwealth’s contention without merit *5 the officers drove to the hotel room where Moore had been There, staying. Officer McAndrew realized Moore had not been searched. protective The officers made a of sweep room, hotel and Officer McAndrew then conducted a search of Moore incident arrest. He recovered crack from cocaine jacket Moore’s in cash from pants pocket. his Moore $516 was then taken back to City Portsmouth.
Moore to suppress moved the evidence recovered his person on statutory and constitutional grounds, arguing the person search of his by illegal tainted preceded it. Specifically, argued the arrest was illegal him because the detectives failed to release on a summons 19.2-74(A)(1). pursuant § to Code When asked at suppression hearing why Moore was arrested, stated, Anthony “just Officer our prerogative, we chose to effect an arrest.” Additionally, after the traffic stop, “narcotics eventually were recovered.” why When asked summons, Moore was not released on a Anthony replied, “Well, we were still the middle of an investigation; investigation were, was not complete yet. We to the traffic ... stop, conducting a narcotics investigation.”
The trial court suppress, denied the motion to holding the arrest neither violated the Fourth Virgi- Amendment nor nia law permitting an officer to arrest for a misdemeanor presence. evidence, committed After hearing additional the trial court possession convicted Moore of of cocaine with distribute, intent to him to years prison, sentenced five year with one and six months suspended. appeal, panel
On
a divided
of this
reversed
trial
judgment
court. See Moore v.
wealth’s for en petition stayed banc the mandate of the decision, panel appeal. Upon rehearing and reinstated the en 19.2-74(A)(1), because Moore's arrest was in violation of Code and it any exceptions allowing did not fall into of the the officers to effectuate 11(A), such an arrest. See Part infra. reinstate banc, the trial court and affirm the judgment conviction. Moore’s Analysis
II. court’s is ‘bound the trial appeal, “[t]his Court On *6 or without “plainly wrong” of historical fact unless findings to the give weight due support them and we evidence local by judges resident and drawn from those facts inferences ” Commonwealth, Davis v. enforcement officers.’ law (2002) Neal (quoting Va.App. 422, 424 (1998)). However, is in violation “whether a defendant seized de question of the Amendment is a that is reviewed Fourth novo on appeal.” that, because the initial arrest argues appeal
Moore 19.2-74, of his by § Code it was also in violation unauthorized such, Amendment As contends the Fourth rights. search, recov- subsequent specifically, fruits of the the cocaine the person, suppressed. response, ered from his must be argues that Moore’s arrest did not violate Commonwealth that, § 19.2-74.4 The Code Commonwealth reasons because car, only driving and he did Moore was one because license, Moore would “fail ultimately not have a valid driver’s fur- act.”5 The Commonwealth to discontinue unlawful invalid, arrest was it nonethe- ther contends even if the of trigger application constitutional does not less was and exclusionary Fourth Amendment rule. follow, that, although hold For the reasons that 19.2-74, § of provisions violated Code express arrest disputes Moore nor there was 4. Neither the Commonwealth only validity The arrest under custodial arrest. contention is of that Virginia of United States both the Code and the Constitution. brief, did not the officers In its the Commonwealth address whether Moore, probable cause and Moore concedes the existence had the laws Commonwealth an offense under of the only argues did The that the officers was committed. Commonwealth by arresting contends not violate the statute him. Commonwealth exceptions listed was in one of the three as the arrest accordance with requirement. in the statute to the citation resulting arrest and search did not violate Moore’s constitu- And, opposed tional —as to statutory rights. because Code — § exclusionary remedy, 19.2-74 does not an provide we must affirm the trial suppress. court’s denial of Moore’s motion to §
A The Application Code 19.2-74 provides, in pertinent part, 19.2-74 is any person Whenever detained or is in the custody of arresting for any officer violation committed in such presence officer’s which offense a violation any county, city or town ordinance or of any provision of this Code punishable as a 1 or Class Class or any misdemeanor other misdemeanor for which jail he receive a sentence ... the arresting officer shall take the name and address of such or person notify issue summons otherwise him in a time writing appear place specified to be in such or Upon summons notice. the giving by such person of *7 promise written appear place, to at such time and the shall release him custody. officer forthwith from 19.2-74(A)(1) added). § Code (emphasis statute sets forth rule, several to exceptions general this providing may arrest, officer a effectuate warrantless to Code (1) 19.2-82, § if: “any person such shall fail or refuse to (2) act,” any discontinue the unlawful or “if is person believed to to arresting the officer be a likely disregard summons ... likely or ... to be to harm to or to any himself ” 19.2-74(A)(1). § other person.... Code 19.2-74, §
Accordingly, conjunction with Code 19.2-82, permits an a officer to conduct warrantless custodi- First, al two types arrest circumstances. an arrest is the proper person if fails or refuses to the discontinue unlaw- promise fid act or refuses to give appear. written to Id. Second, an arrest is also if the proper officer reasonably the person likely believes will the summons or will disregard do harm to or to likely himself others. instance, first ability upon to is based conduct, Thus, actual not potential
offender’s future conduct. Commonwealth, 258 Va. v. to Lovelace according to “failed or refused had (1999), if Moore only S.E.2d 856 have effected the officers act could the unlawful discontinue a magistrate.” the defendant before and taken custodial arrest case, complied Moore In this at 860. Id. at 522 S.E.2d discontinuing including requests, officers’ all of the with There is vehicle. stopped when he unlawful conduct to discontinue failed or refused showing Moore evidence Moreover, give not refuse Moore did act. unlawful issued. never as a summons was appear, promise written on a instance, an arrest be based In the second conduct. How future the offender’s about “reasonable belief’ estimation predictive refers to ever, the statute “although conduct, for deter the standard future person’s accused evi objective, whether of the statute mining satisfaction circum statutory belief supports dence reasonable Commonwealth, Va.App. Fox v. stances obtain.” case, is no evidence In this there likely or would be disregard the summons that Moore would argue Moore did to himself or to others. to cause harm any past have reason officers, they nor did with comply that he would believe experience 737, 742- summons. Smith Cf. (1999) could arrest (holding officers profane she used peace of the when for breach defendant they attempted officers while and kicked the language identity). her obtain information about suggest of evidence record is devoid Because the act, facts could or that the the unlawful to discontinue failed comply fail to Moore would render a reasonable belief *8 others, we hold himself or or cause harm to the summons § 19.2- of Code provisions the express arrest violated 74. Fourth The the Application
B. Amendment to the Search that, arrest violated argues because Moore violat- search also 19.2-74, subsequent the arrest 64
ed Ms Fourth For rights. Amendment the reasons follow, find that neither the arrest nor the search violated rights. Moore’s constitutional
1.
Validity
Constitutional
Arrest.
Vista,
v. City
Lago
Atwater
318,
532
121
U.S.
S.Ct.
1536,
(2001),
L.Ed.2d Here, probable the officers had cause to arrest Moore for committing a presence. misdemeanor Specifically, their Anthony Officers they McAndrew detained Moore because believe, had reason to radio based on information received officer, from fellow Moore driving suspended license. Although the record indicates that the officers were identity mistaken about of the “Chubs” referred to by Karpowski, Detective has held “when probable have cause to party, arrest one and when they reasonably party mistake second for the first party, Hill v. then arrest of second is a party valid arrest.” 797, 802, California, U.S. 28 L.Ed.2d S.Ct. Moore, Because the officers observed a.k.a. “Chubs,” driving they Ms veMcle on what had reason to license, was a suspended probable believe the officers had cause to believe that Moore was a crime in committing their And, presence. because the officers had cause that offense, Ms committed criminal arrest did violate Atwater, Amendment. See the Fourth U.S. S.Ct. at 1557.
65
in this
apply
not
that Atwater
however,
does
argues,
Moore
specifically
statute
with a Texas
case, claiming Atwater
dealt
cites
of that statute.
for violation
an arrest
authorizing
(2001),
237,
605
549
v.West
36
However,
distinguishable
is West
this contention.6
support
to
when the
place
took
in that case
search at issue
because
on a summons
released
being
in the process
was
defendant
a
justify
as would
arrest such
under
longer
thus
no
was
is the fact
analysis
our
to arrest. Crucial
search incident
an arrest
in Atwater —that
holding
Court’s
violate the Constitution—
cause does
probable
based
of the particular
the construction
was
contingent upon
to condition
fact,
intended
In
the court
“[h]ad
Texas statute.
law,
ample
it had
of an arrest on state
constitutionality
so____”
601,
McKay,
27
People
Cal.4th
say
opportunity
(2002).7 Moreover,
236,
59, 68
41 P.3d
Cal.Rptr.2d
117
“
has never taken the
that an arrest
position
Court
‘Supreme
West,
suppress
the evidence
court denied a motion
the trial
West, Va.App.
In United States v.
U.S.
S.Ct.
(1973),
[t]he incident lawful arrest, upon custodial while based the need to disarm evidence, on depend discover does what a court may particular later decide was the in a probability arrest situa- tion that weapons or evidence would in fact found upon be person suspect. of the A a suspect custodial arrest of probable based a reasonable intrusion under the Amendment; lawful, being Fourth intrusion a search to the requires justification. incident arrest no additional It is the fact of the lawful arrest which establishes the authori- search, ty to and ... the case of a lawful arrest custodial person a full only exception search is not Amendment, requirement warrant the Fourth but is also under “reasonable” search that Amendment. Id.; Belton, New see also York U.S. S.Ct. 2860, 2864-65, Because, discussed L.Ed.2d as cause, above, upon was based Moore’s arrest Fourth arrest not violate the to that did search incident however, the initial because argues, Amendment. Moore “unlawful,” Moore rea- apply. Robinson does arrest was decision Lovelace Virginia Supreme Court’s sons to the arrest subsequent the search finding mandates disagree. rights. violated Fourth Amendment We Lovelace, for a officer the defendant detained actually him. officer “did not misdemeanor and searched [drugs] after retrieved the until he [the defendant] Lovelace, the defendant’s 258 Va. pocket.” the Knowles holding— 19.2-74 and Applying at 857. incident to a citation that a search conducted specifically, Virgi- Court of violates the Fourth Amendment —the or by issuing nia held an “arrest” that is effected citation not, custody taking suspect summons rather than into does itself, justify field-type a full search.8 *11 Lovelace, however, is without merit. upon Moore’s reliance at first to be Although may, glance, dispositive Lovelace seem Court, analysis this of the issue further indicates before otherwise. In that was a violation of determining the search rights, the Supreme the defendant’s Fourth Amendment Virginia requirement negated Court held citation arrest argument probable the Commonwealth’s that the at at The justified search. Id. 860. Supreme Virginia recognized that 19.2- 8. The Court of 74(A)(2) contemplate equivalent did situation to an not custodial Lovelace, 858; at actual custodial arrest. 258 Va. at S.E.2d see also S.E.2d 904 Rhodes case, (1999) Knowles). However, (applying the did in this officers presents effectuate a arrest in of the statute. This custodial violation First, problems. two the Court of the United States has never particular this situation determined that an arrest addressed and of a the federal violation state law is also violation of Constitution. Second, situation, legislature contemplate the Moore did not this where suggests tum[s] that ... a citation offense into an arrest “an officer offense, judicial thereby review.” How- insulate[s] and the search from circumstance, ever, they legislature particular if the did consider this remedy excluding evidence after provide decided not to obtained arrest. bright-line Lovelace stated rule regarding arrest, Robinson, search incident as set forth in did not apply contemplated because the detention in Lovelace was stop. similar in nature and duration to a traffic In other words, Lovelace, not the officers did to arrest intend Rather, defendant of the encounter. onset the deten- frisk, tion stop was similar to a and and the defendant was only illegal arrested after an down pat bag revealed a of crack The cocaine. officer admitted that he the bag retrieved from pocket object defendant’s even “the ... though did not gun, feel like a he bag, did not know what was in the he [ ] did not have a search warrant.” contrast, the facts of case this indicate the officers intended effect a custodial arrest they the time placed arrest, detained Moore. him They under read him his rights, Miranda and obtained a written consent search his hotel, all within Thus, fifteen minutes of the stop. initial controlling, Lovelace bright-line and the rule announced is, That applies. Robinson because based on cause, the search was conducted because inci- arrest, dental to that the search did violate the Fourth Amendment.9 The Application
C. Rule. Exclusionary Lastly, argues that exclusion of the evidence should for the remedy during be cocaine seized the search to the unlawful subsequent arrest. Commonwealth ar- 9. The dissent would hold Knowles controls the outcome of this appeal, correctly noting prohibits that Knowles a search incident to a However, reasoning citation. of the dissent fails to consider the *12 underlying Supreme rationale for the United States decision Court's Robinson, above, against Knowles. When read its decision in as noted simply proposition Knowles for the stands constitutional ratio- justifying evaporates suspect nale a search incident to arrest when arrest, Knowles, longer either as the case no under or never arrest, under as case in was the Lovelace. Neither is case here. was, custody statutorily However infirm Moore’s status unquestionably existed that Moore had committed a criminal offense that, under laws of We the Commonwealth. thus reiterate on these facts, appeal. Robinson and Atwater control the outcome of this
69 remedy a proper is not of evidence gues that exclusion follow, the reasons that provides. so For unless the statute 19.2-74, violated Code the arrest though we hold even apply. rule does not exclusionary Commonwealth, Va.App. v. 12 in Troncoso As we stated 942, (1991), “[historically, or seizures 349 searches 407 S.E.2d Virginia statutes provisions made contained contrary supplies no unless the statute provide right suppression (citing at 944, 407 S.E.2d 350 Common right.” (1989) 623, Brown, 41, 44, 624 v. 8 378 S.E.2d Va.App. wealth Commonwealth, J., Horne v. (Baker, concurring)); see also 512, 518-19, 186, (1986); Hart 191 v. 230 339 S.E.2d Va. * Commonwealth, 283, *, 806, 269 809 n. 221 Va. 287 n. S.E.2d (1980). steadfastly “has re Supreme Virginia States, v. to extend rule set forth in Weeks United [the fused (1914),] encompass 652 34 S.Ct. 58 L.Ed. U.S. violations, statutory evidence seized absent Troncoso, express statutory provision suppression.10 350; v. see also Hall Common Va.App. 727, 733-34, 121 (1924); wealth, Thomp Va. S.E. son (1990). case, did not violate Moore’s present
In the
have
rights,
triggered
Fourth Amendment
which would
Rather,
exclusionary
the arrest violated
state statute
rule.
not
retrieved
that does
for the exclusion
evidence
provide
Because the statute
subsequent
from a search
that arrest.
remedy,
may
supply
provide
exclusionary
does not
exclusionary
one
we hold
rule
judicially. Accordingly,
and,
thus,
denying
trial court did not err in
applies,
suppress.
Moore’s motion
Weeks,
obtained in viola-
Court held that evidence
proscriptions against unreasonable searches and
tion of constitutional
against the
rule was also made
be used
accused. This
seizures
Ohio,
643, 81 S.Ct.
through Mapp v.
367 U.S.
applicable to the states
III. Conclusion reasons, foregoing For the uphold the trial court’s denial of suppress the motion to and affirm Moore’s conviction for of possession cocaine intent to distribute.
Affirmed.
ELDER, J., FITZPATRICK, joined C.J., by BENTON and FRANK, JJ., in concurring, part, dissenting, in part. and join
I
in the majority’s recitation of the facts and its
conclusion in Part II. A that
Lee
David
Moore’s arrest violated
express provisions
However,
the
of Code
19.2-74.
I disagree
majority’s
with the
conclusion that this
violation
statutory
did
not rise to a constitutional violation under
of
the facts
this
Iowa,
v.
I
decision Knowles
case. would
hold
(1998),
U.S.
S.Ct.
As the United
explained
States
Court
the Fourth
places
Amendment
limitations on
con-
searches
Knowles,
ducted
to
incident
issuance of a citation.
an Iowa
police officer
Knowles for
stopped
speeding and, as permitted
statute,
exercised his
discretion
issue
a citation
Knowles
Id. rather
than arrest him.
According
“two historical rationales
for the ‘search incident
exception
[exist]
to arrest’
[to
(1)
Fourth
suspect
Amendment]:
need
disarm
(2)
custody,
order to take him into
and
to preserve
need
at 487.
119 S.Ct.
at trial.” Id.
later use
evidence for
officer flows
to the
danger
‘[t]he
It
“recognized
stress,
arrest,
proximity,
its
and
attendant
fact
” Id. at
for arrest.’
uncertainty,
grounds
not from the
Robinson, 414
(quoting
United States
119 S.Ct.
*14
467, 476
Knowles a alleged was his commission of Class misde- Lovelace meanor which the issuance of a summons was authorized 19.2-74(A)(2). § under Code Only if or Lovelace had failed refused discontinue the unlawful act could the officer have effected custodial arrest taken the defendant 19.2-74(A)(2). However, § before a magistrate. Code is there no evidence in the record that Lovelace acted in such a manner. The fact that the officers could have issued only summons for the alcohol-related offense also negates argument the Commonwealth’s that the existence of proba- ble cause to charge Lovelace with drinking alcoholic beverage public allowed [Deputy] Womack to search him. Knowles, After an “arrest” that is by issuing effected citation or taking summons rather than suspect into not, custody itself, does justify a full field-type search. 19.2-74(A)(2) Nor do we believe that Code contem- plates a equivalent custodial situation to an actual custodial statute, detained, arrest. Under that suspect or in the custody officer, only long enough for the officer *15 to take down the name and of the person address and issue a summons. of the reasons One that the Knowles Court did not extend the Robinson “bright-line rule” to a “search incident to citation” was because the duration of the encoun- ter between a officer a “relatively defendant is Thus, brief’ when the officer issues a citation. the threat to officer less. safety is 596, 860; Commonwealth,
Id. at
522
at
S.E.2d
see also
v.West
Va.App.
(2001);
36
549
v.
S.E.2d 605
Rhodes
Common-
wealth,
(1999) (en banc).
Va.App.
29
The United States Court subsequently revisited Knowles, Vista, in holding City Lago Atwater v. 532 U.S. 318, 354, 1536, 1557, (2001), 121 S.Ct. 149 549 an L.Ed.2d that a officer for a effecting custodial arrest misdemeanor traffic offense search the arrestee without the Fourth violating However, in Amendment. we noted in West Court Atwater in reached this conclusion the context of a state statute that authorized a custodial arrest in such expressly gave circumstances and discretion to a officer the issue West, effecting summons in lieu of an at Va.App. arrest. 36
73 in issue n. Because statute n. at 607 242 549 S.E.2d in we held Virginia’s, Atwater different significantly in this case.” in Atwater “does apply ruling West that Knowles hold unconstitutional Id. applied thenWe and under while he was handcuffed search of conducted West 240-42, citation-only offense. arrest for a in we concluded West Thus, holding in 606-07. Knowles an Atwater had holding on the effect issuance of a a search pursuant officer who conducts id. Fourth Amendment. See summons violates the here, essence, the inter- overrules majority’s holding course, the of Atwater West. made in Of pretation decision, authority en banc sitting panel has the to overrule doing constitutionally for so is legal I believe its basis but of the unsound because Atwater impact did not address the on a search incident a custodial arrest Fourth Amendment of a in violation state for misdemeanor offense effected of a summons. authorizing only statute the issuance Here, searching than to issuance of pursuant rather clear violation of the Fourth Amendment —as summons —a West, Knowles a full custodial the detectives effected to that arrest. arrest of Moore and searched him disagree all that arrest violated 19.2-74 but agree We with the agree as to ramifications of violation. I majority statutory require violation does ordinarily, as a result of that evidence obtained suppression “ express statutory provision suppres- violation an ‘absent ” Commonwealth, v. 646, 651, Janis 22 472 Va.App. sion.’ Troncoso (quoting Va. S.E.2d en (1991)), reh’g App. S.E.2d affd banc, (1996). However, *16 Knowles in the of declaration light the Court’s incident to permit Fourth Amendment does search citation, that a conduct- issuance of a I would conclude search § 19.2-74 to a custodial arrest that violates Code pursuant ed effect, of a constitutes, search incident to issuance citation holds if in violation of the Fourth Amendment. Knowles statute, officer, permitted by as exercising an discretion only chooses to issue a citation rather than to effect a full arrest, a search incident to of issuance that citation is uncon- I stitutional. see reason to reach a it different result when legislature is the that has concluded absent additional facts, only particular a citation should be for issued offense.11
Although scenario, not expressly Knowles did address this nor neither Knowles Atwater this I precludes approach, and exclusion, case, would hold that the of under facts Moore’s is a logical and of necessary extension decision Knowles. The Virginia Supreme Court intimated as much in Lovelace when it observed “The fact that the officers could have issued only a for summons [under alcohol-related offense relevant negates state argu- statute] Commonwealth’s ment probable that the existence of to charge cause Lovelace with an drinking public alcoholic beverage [Deputy] allowed Womack search him.” 258 Va. S.E.2d only Where statute authorizes the issuance of a citation for offenses, certain minor to which a full search would Knowles, be unconstitutional under hold admissible the search, fruits of a conducted by officer who effects a full clearly custodial arrest under circumstances not permitted by statute, yield would fraught undesirable results and would be potential Any for desiring abuse. officer so could intentionally effect a full custodial contrary clearly established law in running state order avoid afoul of Knowles, thereby placing the search reach beyond the Crosby Fourth exclusionary Amendment’s rule. v. Com- Cf. monwealth, 200-01 & n. (1988) n. (holding & 9 existence of and exigent entry circumstances so justify warrantless residence long as are “not ... their responsible creating own exigencies”). circumstances, appropriate exception
Under faith good exclusionary permits to the rule evidence admission recognized 11. The Court in Atwater that is ... to devise a "[i]t easier through minor-offense limitation Constitution____” statute than derive one U.S. at S.Ct. at 1556. *17 See, e.g., law. about an officer mistaken obtained (5th Cir.2003). Gould, States v. 326 F.3d 659-60 United prove However, government good rests on the burden (1st Brunette, 14,17 See, States v. 256 F.3d United e.g., faith. Cir.2001). Here, argument made Commonwealth Further, the law. misperceived officers arresting conduct of all for the unlawful is devised exception must be good well. The faith belief
officers who mean an objective The mistake of reasonableness. grounded nature not bar fact or error of technical operative where admission of evidence. are different [Circumstances To on a of established law. point the mistake basic is] clearly to allow of a so far as evidence exception extend the put great ... would too unlawful search warrantless virtually law and termi- premium ignorance of the would exclusionary nate the rule. Cir.1986) (5th Whaley, v. F.2d
United States omitted) added). (citations Detectives An- (emphases When February and Moore on thony McAndrew encountered § of 19.2-74 and the provisions both the relevant Code in Knowles were established holding Court’s law, law misapplication and the detectives’ objectively reasonable. case, facts this I principles these to the would
Applying because the Code made hold search was unconstitutional facts, additional the detectives were re- clear absent Moore a for the misdemeanor offense quired issue summons 19.2-74; license. See Code suspended § driving on Code license driving § 46.2-301 while one’s is sus- (providing misdemeanor). Moore’s violated pended a Class 19.2-74, a result of the evidence obtained as search, was, effect, to issuance of which conducted to Knowles citation, suppressed pursuant have been should See Sun United Wong poisonous as fruit of the tree. States, 471, 485-86, 9 L.Ed.2d U.S. 83 S.Ct. reasons, I reverse and dismiss For these would indictment, respectfully I dissent.