Moore v. Commonwealth

Thus, the most logical interpretation 63.2-1909, of Code pan materia with Code especially §§ when read in -1910, and the General Assembly used interchangeably assistance,” “public code, the terms it which defined “public money” assistance which “moneys,” it did not separately define.

III. reasons, For these I from respectfully dissent the majority’s ruling decision to affirm the of the trial court.

David Lee MOORE Virginia. COMMONWEALTH of Record No. 2648-03-1. Appeals Virginia,

Court of Chesapeake. Feb. Chittom, Appellate (Virginia Indigent

S. Jane Defender briefs), Commission, on appellant. Defense for Parrish, L. Attorney (Jerry Susan Assistant General W. General, brief), Attorney for Kilgore, appellee. on C.J., ELDER, J., FITZPATRICK, Present: and * ANNUNZIATA, S.J. ELDER, Judge. conviction under appeals his (appellant)

David Lee Moore with intent of cocaine possession § that his convictiоn argues appeal on Appellant distribute. his denying erred the trial court reversed because should be was Appellant’s suppress motion suppress. motion to a summons instead to issue police the failure of based on 19.2-74(A)(1), arrest, when to Code pursuant effecting driving he on car and determined was they stopped his reasons, reverse. following we suspended license. For the I.

BACKGROUND evidence, and all reasonable appeal, On we review evidence, in a light from the inferences that can be drawn party prevailing as the most favorable to the Commonwealth below. Garcia v. (2003). viewed, the evidence establishes So February Karpowski Detective B.J. overheard

on man, about a whose nicknamе on his radio conversation “Chubs,” on his Drawing a car in the area. driving was just been re- a man nicknamed Chubs knowledge that driving penitentiary federal leased from a license, officers told Karpowski radioed other suspended stop them to Chubs. Anthony responded McAndrew Mark and T.

Detectives An- whom appellant, and Karpowski’s message stopped radio was thony Although appellant was nicknamed knew “Chubs.” message, to in his radio man referred Karpowski not the * hearing case Judge participated and decision this in the Annunziata December 2004 and on prior to the effective date her retirement judge pursuant by designation her senior thereafter § 17.1—401.

detectives determined that on driving he was a suspended license.

Appellant alone in dog was the car with a the detectives “very upset described as presence]” detectives’ [the and “big enough” that the officers get “didn’t want to too close to it.” After confirming that appellant’s license was suspended, Anthony Detectives and McAndrew arrested hand- appellant, him, cuffed placed and him in Detective McAndrew’s vehicle. miscommunication, Due to a the detectives did not search appellant at that time. The detectives then called animal requested control and they pick up Forty-five the dog. later, arrived, minutes animal after control the detectives drove to a hotel room appellant where staying. been There, McAndrews searched appellant’s pеrson and recovered jacket crack from his cocaine and pants cash from his $516 pocket.

When hearing why appellant arrested, asked stated, Detective Anthony “Just our prerogative, we chose to effect an Additionally, arrest. subsequent stop, to that traffic narcotics were eventually recovered.” When why they asked did not summons, release on appellant Anthony replied, “Well, we were still investigation; middle of the were, investigation complete yet. pursuant was not We traffic stop, conducting also a narcotics investigation.” ....

Appellant moved to suppress statutory and constitutional grounds, arguing the search of his person was tainted illegal arrest it. The he preceded illegаl, arrest was argued, because the detectives failed to release him on a 19.2-74(A)(1). pursuant summons to Code The trial court City Lago Atwater denied the motion to suppress. Citing Vista, (2001), U.S. S.Ct. L.Ed.2d 549 court trial held the arrest violated neither the Fourth Virginia Amendment nor law permitting officer for a misdemeanor committed in his After presence. hearing evidence, additional the trial court convicted appellant years him to six prison, year sentenced five one months suspended. This followed. appeal

II.

ANALYSIS part: pertinent § provides, Code or in the by detained is any person A. 1. is Whenever any officer for violation committed custody arresting of an of any offense is a violation presence which such officer’s provision of this county, city any or town ordinance or or as a or Class misdemeanor punishable Code Class may jail which he receive any other misdemeanor for 46.2, sentence, in Title or provided as otherwise except 18.2-266, § charging or an arrest on a warrant offense issued, may specifically a summons be and when which warrant, ‍​‌‌​‌‌​‌​​​‌​​‌​‌​‌​​‌‌‌‌‌​‌​​‌​​‌‌‌​‌​‌​​‌‌‌​​​‍the by judicial issuing the officer the authorized of such officer shall take the name and address arresting notify or him in person and issue summons otherwise place specified at a time and to be in such writing appear to Upon giving by person or notice. the such of his summons place, to such time and officer promise appear written However, if custody. any shall forthwith release him from fail or to thе unlawful person such shall refuse discontinue act, may according provisions the officer to the proceed § 19.2-82. notwithstanding, if

Anything contrary this section to by arresting likely is officer to be to any person believed disregard provisions a summons issued under of this subsection, any reasonably or if believed person or likely officer to be to cause harm to himself to arresting person, magistrate issuing authority other or other any having jurisdiction proceed according provisions shall §of 19.2-82. is a one’s license is Class

Driving suspended while 46.2-301(C). Therefore, § in the instant misdemeanor. Code to case, appellant § 19.2-74 issue required Code detectives custody upon securing him from his a summons and release (1) drunk appellant’s offense was promise appear unless: exempted driving specifically under Code 18.2-266 or (2) 46.2, appellant Title failed or refused to offense under (8) act, discontinue the unlawful appel- the detectives believed likely disregard summons, lant was or the detectives reasonably appellant believed likely to cause harm to 19.2-74; himself person. another see also West Commonwealth, 237, 240-42, v. 605, 36 549 S.E.2d (2001). proof 606-07 Absent of supporting application facts of arrest, one of these a exceptions, full custodial necessary to justify arrest, a search of the individual incident to was not permitted under the statute.

As the United States in Supreme explained Court Knowles Iowa, 484, v. 119 (1998), U.S. S.Ct. L.Ed.2d relies, which upon appellant the Fourth Amendment also places limitations on searches conducted incident to issuance Knowles, of a citation. 525 U.S. at at S.Ct. stopped and, Iowa officer speeding Knowles for statute, permitted by exercised his discretion to issue Knowles citation, citation rather than arrest him. After issuing the car, the officer conducted full of search Knowles’s found marijuana seat, bag “pot pipe” and a under the driver’s and arrested possession Knowles offenses related to his of that Supreme contraband. Id. The Court considered con- whether full ducting a search pursuant Knowles’s vehicle issuance of a traffic citation was consistent with the Fourth Amendment and concluded that it was not. Id. Court,

According to the “two historical rationales for the ‘search exception [exist] incident to arrest’ [to (1) Fourth to suspect Amendment]: the need disarm custody, order to take him preserve into need to evidence for later use at trial.” at Id. 119 S.Ct. at 487. The Court determined Knowles that neither rationale was present and refused to extend the “search-incident-to-arrest” to exception permit searches incident to the issuance of cita- 118-19, tions. Id. at at 488. The S.Ct. Court held that other, independent “officers have for weapons bases to search protect from danger,” ability themselves including “perform ‘patdown’ reasonable upon suspi- [the detainee] may 117-18, cion and dangerous.” be armed Id. at [he] Ohio, 88 S.Ct. 392 U.S. (citing Terry v. at 488 119 S.Ct. (1968)). 1868, L.Ed.2d 889 issue a similar addressed Virginia Supreme Court 588, 522 S.E.2d 856 258 Va.

Lovelаce (1999). drinking beer men were and several other Lovelace known a convenience store in the lot of standing parking while Id. at market.” drug air “open be an through air fly area saw a beer bottle in the 857. Officers that the officer testified threw it. Id. One but did see who Id. standing. area where Lovelace was from the bottle came to lie face down men ordered and the other were Lovelace and asked officer Lovelace approached Id. An ground. remained himself but name. Id. Lovelace identified him his any drugs asked him he had the officer whether silent when Lovelace. Id. “pat down” proceeded Id. The officer guns. bag something plastic he felt like a pocket, In Lovelace’s Id. at it, bag. he not know what was lumps in but did in 591-92, at 857. The officer nevertheless reached 522 S.E.2d 592, at 522 bag. Id. pocket Lovelace’s and retrieved as crack at substance was later identified S.E.2d 857. The cocaine. Id. conviction, reversing the Court said: Lovelace’s detaining initial reason for

Knowles is applicable____[T]he 4 his of a Class misde- commission alleged Lovelace was authorized which the of a summons was meanor for issuance 19.2-74(A)(2). Only § if Lovelace failed under Code could the officer to discontinue the unlawful act refused a and taken the defendant have effected custodial arrest 19.2-74(A)(2). However, magistrate. before in is no in record that Lovelace acted there evidence issued The fact that the officers could have such a manner. negates offense also only a summons for the alcohol-related proba- that the existence argument the Commonwealth’s an alcoholic drinking Lovelace with charge ble cause him. to search beverage [Deputy] in allowed Womack public Knowles, by issuing an “arrest” that is effected After into taking suspect or summons rather than citation itself, search. not, by justify field-type a full custody does 154 19.2-74(A)(2)

Nor do we believe that Code contem- plates custodial equivalent situation to an actual custodial statute, detained, arrest. Under that a suspect is or in the custody officer, the only long enough officer to take down the name and address of the person and issue a summons. ofOnе the reasons that the Knowles Court did not extend the 218, [United States v.] U.S. Robinson[414 (1973)] 467, S.Ct. “bright-line L.Ed.2d 427 rule” to a “search incident to citation” was because the duration of the encounter a police between officer and a defendant is “rela- tively Thus, brief’ when the officer issues citation. safety threat to officer is less. 860; West,

Id. at at see also 36 Va.App. 605; Rhodes v. 29 Va.App. (1999) (en banc). 513 S.E.2d 904 United States Court subsequently revisited Knowles, Atwater, in 532 U.S. at at S.Ct. 1557, that an officer effecting a custodial arrest for a misde- meanor traffic offense may search the arrestee violat- without ing However, the Fourth Amendment. we noted in West the Court reached this conclusion in of a the context state statute that expressly authorized a custodial in such circumstances and gave the officer the discretion issue a West, in of effecting summons lieu arrest. at 242 n. n. 2. S.E.2d at 607 Because the statute issue Atwater significantly Virginia’s, different from we held ruling West that the apply Atwater “does not case.” this Id. applied We then Knowles hold unconstitutional search of West conducted while he was handcuffed and under 240-42, citation-only arrest for a offense. Id. at 549 S.E.2d at Thus, 606-07. in holding we concluded West that the in Atwater had no effect on the of that an Knowles officer who a pursuant conducts search to issuance of a summons violates the Fourth Amendment. See id. Atwater ‍​‌‌​‌‌​‌​​​‌​​‌​‌​‌​​‌‌‌‌‌​‌​​‌​​‌‌‌​‌​‌​​‌‌‌​​​‍not impact did address the of Fourth a the Amendment on search incident to a for a custodial arrest misdemeanor offense only effeсted in violation of a state authorizing statute the issuance of summons.

155 to issuance Here, searching pursuant rather than Knowles, appellant detectives arrested the a summons as contends Appellant that arrest. him incident to and searched the United States 19.2-74 and violated Code that arrest and, thus, accom that the fruits Virginia Constitutions statutory Ordinarily, a suppressed. must be search panying obtained of evidence require suppression does violation statutory express an of that violation ‘“absent result ” Commonwealth, 22 Va. for Janis suppression.’ provision Troncoso v. 652 (quoting S.E.2d App. 12 Va.App. banc, (1991)), reh’g en aff'd

(1996). However, Supreme Court’s declaration light permit a Fourth Amendment does not in Knowles that citation, conclude that to issuance of we now search incident that violates to a custodial arrest pursuant a search conducted effect, constitutes, a search incident § 19.2-74 of the Fourth Amendment.1 a citation in violation issuance of officer, his discretion as exercising if an Knowles holds that statute, rather only to issue a citation chooses permitted affirming Supreme language in Virginia recent an order 1. The Court’s Commonwealth, Va.App. judgment in Hunt v. this Court’s banc) (affirmed (en opinion by evenly without S.E.2d 789 court), compels supports a Hunt v. nor different result. divided Commonwealth, neither 8, 2004). (Va. Supreme Court Oct. The No. 040614 preserve the search at appeal his claim that did not held Hunt rights solely affirmed based on his issue his constitutional violatеd statutory claims: argument] preserve inadequate the constitutional [Defendant’s appeal. issue for Appeals err in Court of did not also concludes that the Court statutory rejection defendant’s affirming court’s of the the circuit Assuming, suppress. without arguments support of his motion occurred, defendant deciding, a violation of Code suppression of the evidence that was entitled to failed to establish he a violation of a absence of as a result of the search. obtained remedy of evidence rights, the of exclusion defendant’s constitutional statutory available for a violation. is not Thus, added). Hunt, (citation omitted) (emphasis op. slip at 1-2 actually supports that a our conclusion order in Hunt Court’s rising violation re- statutory to the level of constitutional violation quires suppression. arrest, than to effect a full a search incident to issuance of that citation is unconstitutional. We see no reason to reach a different result when it is the legislature that has concluded that, facts, absent additional only citation should be issued a particular for offense.

Although Knowles did not expressly scenario, address this neither nor precludes Knowles Atwater this approach, and we exclusion, hold that under the case, facts of appellant’s is a logical necessary extension decision in Knowles. The Virginia Supreme Court intimated as much in Lovelace when it observed “The fact that the officers could have issued only a summons for the alcohol-related offense [under relevant state statute] also negates the argu- Commonwealth’s ment that the existence probable cause to charge Lovelace drinking an alcoholic beverage public [Deputy] allowed Womack to search him.” 258 Va. at 522 S.E.2d at 860. aWhere only statute authorizes the issuance of a citation for offenses, certain minor pursuant to which a full search would Knowles, be unconstitutional under to hold admissible the search, fruits of a by conducted an officer who effects a full custodial arrest under circumstances clearly permitted by statute, would yield inconsistent results and would fraught be with the potential Any for desiring abuse. officer so could intentionаlly effect a full contrary custodial arrest clearly state established law in running order avoid afoul of Knowles, thereby beyond placing power the search of the court to review. Crosby v. Cf.

200-01 & n. 735 & n. (holding probable existence of exigent cause and may circumstances justify warrantless entry residence so long police are “not ... responsible creating their own exigencies”). that, recognize

We circumstances, under appropriate good faith exception to the exclusionary permits rule admission of evidence obtained officer mistaken about See, Gould, e.g., law. United v. States 326 F.3d 659- (5th Cir.2003). However, the burden govern rests on the See, prove Brunette, ment to good e.g., faith. United States Cir.2001). (1st Here, the Commоnwealth 256 F.3d misperceived officers arresting that the argument no made Further, law. of all conduct for the unlawful not devised exception is be faith belief must good The mean well.

officers who mistake of an The reasonableness. grounded objective may not bar technical nature an error of fact or operative where are different [Circumstances of evidence. admission To established law. point on a the mistake basic is] clearly far allow evidence of exception so as to extend the great too put ... search would unlawful warrantless virtually termi- would ignorance of the law and on premium exclusionary rule. nate Cir.1986) (5th 781 F.2d Whaley, v.

United States added). omitted) An- (citations When Detectives (emphаses 20, February appellant encountered thony and McAndrew and the 19.2-74 provisions both the relevant Code were established in Knowles Court’s 1998 objectively law, of that law was misapplication their reasonable. case, this we to the facts of principles these

Applying made because the Code hold the search was unconstitutional facts, re that, were additional detectives clear absent for the misdemeanor a summons quired appellant to issue § 19.2- See Code suspended on a license. driving offense of li 74; driving that while one’s (providing misdemeanor). The Common is a Class 1 suspended cense to believe police had “reason argues only wealth they [appel released activity not cеase had the unlawful would in the car alone appellant on a summons” because lant] easily contained” and an animal “that could not be dog or his [appellant] “no available take because one was that Code argues The Commonwealth thus from the scene.” had “reason to the officers permits § 19.2-74 an arrest when they had activity would not cease believe that the unlawful Commonwealth, on a summons.” [appellant] released however, under appropriate question misapprehends facts whether the The trial court must determine statute. establish that appellant failed or refused to discontinue the act; unlawful whether the had reason appel- to believe lant would fail or rеfuse to discontinue the unlawful act is immaterial. Fox 449- Cf. (2004) (discussing the standard to be applied in evaluating the applicability exceptions (4)). That appellant was alone in car with his dog and no one else was present him transport from the scene do not establish that he failed or refused discontinue the unlawful activity. No other evidence on the bearing question was introduced, and the trial finding court made no that appellant attempted to drive again his car after the initial See stop.2 Lovelace, 258 Va. at 522 S.E.2d at if (“Only Lovelace failed refused to discontinue the unlawful act could the officer have effected a custodial arrest and taken the defen- dant magistrate. However, before a there is no evidence in (citation the record that Lovelace acted in such a manner.” omitted)).

We case, dealt with similar facts West. In that a officer observed West execute a turn in car using his without a West, signal. at at 605. West car, subsequently his at parked which time ap- the officer proached and asked to see West’s license. Id. informed West license, him that he did not have a and the officer confirmed he was not West, licensed to drive. Id. He then handcuffed told him he was license,” under arrest “for a driving without began and filling out a filling summons. Id. out While summons, bulge the officer noticed a shoe. Id. West’s officer searched the shoe and recovered crack cocaine. ‍​‌‌​‌‌​‌​​​‌​​‌​‌​‌​​‌‌‌‌‌​‌​​‌​​‌‌‌​‌​‌​​‌‌‌​​​‍Id. We held that the cocaine should have been supprеssed because the officer authority did not have to conduct the search where the 2. The suppress ground trial court denied the motion to on the that the United permits police States Court’s decision in Atwater officers to make an a arrest for misdemeanor traffic offense committed However, text, presence. supra in their as discussed in the we have inapplicable held that Atwater is to a case such as the one instant provide § because Code 19.2-74 does not the officer with discretion to arrest, West, make an as did the statute at issue in Atwater. See Va.App. at 242 549 S.E.2d at 607 n. n. 2. Code exceptions that one of the to establish failed evidence Specifically at 607. Id. at 549 S.E.2d applied. § 19.2-74 the applica- to establish of the evidence the failure addressing “stopped stated that West bility exception, we of second him, [the officer] approached officer] car before [the towed. the car have already paperwork started had Id. at unlawful Therefore, ceased the behavior.” [West] ceased the unlawful at Because 549 S.E.2d 606. West faded no that he had there was evidence behavior and because acts,” that the unlawful we held discontinue his “refused to and that his detention was exception apply did not second at illegal. Id.

Here, activity driving of the unlawful appellant ceased him, no stopped detectives license when the suspended failed or refused that he establishing was introduced evidence conclude that the evi- to discontinue the unlawful act. We applicability instant case fails to establish the dence 19.2-74(A)(1). exception Accordingly, appel- to Code 19.2-74, only issu- under which lant’s arrest violated authorized, and the evidence obtained ance of citation was effect, search, was, pursuant which conducted result citation, should have been as fruit suppressed issuance States, Wong v. United See Sun tree. poisonous of the (1963). 407, 417-16, 471, 485-86, 83 9 L.Ed.2d 441 U.S. S.Ct. reasons, reverse and dismiss the indict- foregoing For the we ment.

Reversed and dismissed.

ANNUNZIATA, Judge, dissenting. majority

I that Moore was arrested agree with the However, concur in the I cannot violation of Code 19.2-74. that, Moore was judgment to reverse. I would hold because by probable сause placed supported under full custodial arrest committed, arrest Moore’s to believe criminal offense was Constitution. The exclusion- did not violate the United States not and Moore’s conviction ary apply, rule therefore does should be affirmed.

The evidence in this case beyond dispute establishes that placed Moore was under a full supported by custodial arrest probable cause that a criminal offense had been committed. vehicle, stopping After Moore in his an officer on the scene determined that driving Moore’s license suspended. was Thus, probable cause to believe that Moore was license, on a driving suspended a misdemeanor of violation 46.2-801(C). subsequently Moore placed in hand- cuffs, forty-five made wait minutes his car until animal arrived, control transported and then to his hotel room.

I. Because Moore’s arrest was on probable based cause that license, he committed of driving the offense on a suspended the arrest did not violate the Fourth Amendment United States Constitution. v. City See Atwater Lago of Vista, 1536, 1557, 149 532 U.S. S.Ct. L.Ed.2d 549 (2001) (holding that probable “[i]f officer has cause believe that an very individual has even a committed minor criminal presence, may, offense his he violating without Amendment, Fourth added)); the offender” (emphasis see also Penn v. (holding that “probable cause is the arrest”). for testing

standard validity constitutional of an Furthermore, it is clear that the Fourth Amendment to the United States Constitution is not violated as a result a state law principle violation. The that is not state law relevant to violated, determination of whether the Fourth Amendment is and thus whether the exclusionary concomitant rule is impli- cated, firmly rooted in v. jurisprudence. See California Greenwood, 35, 43, 108 1625, 1630, 100 486 U.S. S.Ct. L.Ed.2d (1988) (holding that evidence obtained violation of Cali- fornia law not should have been excluded under the Fourth Amendment because the Court has ... “never intimated whether search is within meaning reasonable the Fourth depends Amendment on the law the particular occurs”); State which the search Knight see also Jacob- Cir.2002) son, (11th “[tjhere 300 F.3d (holding

161 law”); of in state to be arrested violation right no not is federal (4th Cir.1998) Metre, 339, 347 v. Van 150 F.3d States United “conducted aсcordance the arrest was that whether (holding analysis” to our law is irrelevant Tennessee state pursuant federal the evidence to suppress whether (8th Bell, 502, v. rule); 54 F.3d 504 United States exclusionary Cir.1995) state looking erred by the lower court (holding invalid, and thus exclud- that the arrest was law to determine is evidence, state officers by because ing “[a]n if is based on Fourth sense it reasonable Amendment 1429, Wright, United v. cause”); 16 F.3d 1437 States probable search, arrest, (6th Cir.1994) fact that the (holding “[t]he that long as is irrelevant may have violated state law or seizure were the Federal Constitution developed under standards con- only rule is exclusionary ... because the offended violations”); United deterring Constitutional cerned with Cir.1992) (5th Walker, 409, (holding that States v. 960 F.2d 415 detеr- been violated is the Fourth Amendment has “[w]hether subject” (empha- solely to federal law on the looking mined Haas, (3d Cir.1965) v. Anderson added)); 341 F.2d sis an rights civil claim and whether (evaluating constitution reference requires arrest violates the federal [the it “immaterial whether federal law and is of state law” legal illegal is as matter officer’s] conduct Commonwealth, Horne v. (internal omitted)); 230 quotations Penn, 186, (1986); Va.App. 191 13 Va. 339 S.E.2d 406, at 194. exclusion is not an Moreover, has held that this Court “ ‘absent remedy a state statute is violated when

appropriate ” Janis v. for suppression.’ express statutory provision Commonwealth, 646, 651, 472 652 22 S.E.2d Va.App. 407 Troncoso Va.App. (quoting banc, reh’g en (1991)), S.E.2d aff'd (1996).3 § 19.2-74 not direct that does sup- its must be provisions obtained violation еvidence Assembly adopt historically the General Virginia has looked to rights protecting constitutional legislative measures as means See, e.g., Hall v. Com- and state constitutions. under both federal I would pressed. therefore find that the exclusion of evidence legal this case without support.

II. That Moore probable was arrested based on cause not a Instead, factor in the majority’s majority calculus. the con- was, effect,” cludes that Moore “in searched incident to a § citation because Code 19.2-74 not does a full permit custodi- Iowa, cites Knowles v. al arrest. It 113, 525 U.S. 119 S.Ct. (1998), L.Ed.2d 492 in support of the fiction it creates in and does so order to avail itself of the Knowles holding. Knowles, Iowa, a case a originating gave state statute the the police discretionary authority to either arrest or issue citation for the minor Id. at 115, traffic violation of speeding. 119 Supreme at 486. The S.Ct. Court held that a search conducted incident the to issuance of a citation the violates Id. at 114, States United Constitution. at 119 S.Ct. 486. The majority that, in this § case concludes because Code does not authorize an arrest and limits police discretion to the summons, issuance of a the search in only this case can be citation, denominated as incident to the issuance of in which monwealth, 727, 733-34, 154, (1924); Janis, 138 Va. 121 S.E. 155-56 651, Va.App. Commonwealth, at 472 S.E.2d at 652. In Hunt v. No. 040614, (Va. 2004), II, op. slip. at 1 Oct. discussed the in Part infra Supreme apparently Court did have the occasion to cоnsider policy implications legal principle adopt of this and construction gives import legislative purpose of the statue. See Bazemore Commonwealth, 203, 226, (2004). Va.App. 590 S.E.2d Among troubling policy engendered by the more ostensible and issues 19.2-74, § finding violations Code and which inhere in that evidence convict, may seized violation of state law nonetheless be used to are remedy the absence of a for such violations and the effective nullifica- that, tion of the statute’s It see mandate. is not difficult to in the rule, exclusionary desiring of an absence an officer to conduct a search place could effect a custodial arrest in clear violation of state law and beyond fruits of search review. Such result divests Code effectiveness, § import positive 19.2-74 of creates a for incentive 19.2-74, disregard legislative gives mandate of Code legislature's little "expressed preference effect to the ... for the issu- ance of a summons lieu of an arrest warrant for most misdemeanor by enacting cases 19.2-74.” West v. (2001). of the seized exclusion require would Knowles case the reasoning. I cannot concur this evidence. noted in Knowles Supreme that the Court

It is undeniable police officer to statutory permitting a provision the Iowa an arrest. effecting than rather speeding issue a citation However, majority places at Id. 119 S.Ct. 486. at statutory because the this factual distinction undue reliance on no whatsоever the decision. authority bearing to arrest confined Supreme at Court 119 S.Ct. See id. a citation] incident to determining [a “whether search itself Amend- officer, with the Fourth consistently authorizes car,” id., question and the ment, to a full search conduct (“We question negative. Id. answer this answered in ”). single not a of Knowles discloses reading ‘no.’ A careful Iowa discretionary authority granted to the reference to the for the Court’s police force a reason Rather, the fact for the Court Supreme conclusions. critical and, the the defendant was not arrested because arrested, not the “historic rationales” defendant was exception incident arrest were not underlying the search to (“The 116-17,119 to officer Id. at S.Ct. at 487 threat present. citation, however, is deal good traffic a safety issuing from (Emphasis in the of a custodial arrest.” less than case added)). ‍​‌‌​‌‌​‌​​​‌​​‌​‌​‌​​‌‌‌‌‌​‌​​‌​​‌‌‌​‌​‌​​‌‌‌​​​‍abundantly reasoning Court’s makes exception applies only to clear that the search incident arrest only then are the place an actual arrest takes because when exception present. This underlying historic rationales the only language the of the reading comports Knowles with precedent. Court opinion prior Supreme itself but also with Robinson, See, 94 S.Ct. e.g., States U.S. United (“It the of the lawful 38 L.Ed.2d 427 fact authority (empha- which the to search----” establishes added)). hand, majority’s reading the sis On the other requires signified, the conclusion that decision Knowles silentio, Part I. change supra sea law.4 sub federal Cf. decided, subsequent years and no It has six since Knowles was been suggested by meaning invested the Knowles case has majority. case,

In present we must address a not ad- question dressed Knowles. The facts establish that an arrest oc- curred, not that a citation question was issued. The formulat- ed those facts is whether an arrest that occurs in violation of state law also violates the Fourth Amendment to the United Constitution, States triggering the exclusionary rule. We question negative answered this in the Penn. Penn, this Court considered to whether exclude evidence by police obtained officer to incident an arrest that violated 19.2-81, § Code a statute granting police authority arrest for only misdеmeanors when pres- committed their Penn, ence. at S.E.2d at 190. We determined that officer’s police arrest of the defendant § violated Code 19.2-81 because the crime did not take place in the police presence. officer’s Id. at 412 S.E.2d at 190. conviction, however, that, We affirmed the reasoning although officer arresting was not in the presence of the committed, defendant when the crime was the officer had probable cause to believe that a crime had been committed he was because informed of the crime by another police officer. Id. at 194. Because the officer had probable crime, cause believe the defendant committed a we held that his arrest did not viоlate the Fourth Amendment and that the evidence obtained incident the arrest could not be suppressed. Id.

Although statute, this case arose under a different 19.2-81,1 19.2-74 rather than Code perceive principled no distinction than can be made which would compel result Indeed, different from that in Virgi- reached Penn. in nothing § nia case law interpreting requires Code 19.2-74 a different To majority result. the extent the on Virginia relies cases to result, reach a misplaced; different the reliance is none of the cases cited involved full custodial of the in arrest defendant 19.2-74, § violation of Code the circumstances presented here. Commonwealth, 588, In Lovelace v. 258 Va. 522 S.E.2d 856 (1999), the defendant placed was not under custodial arrеst. 592, at Id. 522 S.E.2d at 857. rejected The Court thus “the argument probable Commonwealth’s the existence of

165 beverage an alcoholic drinking charge cause to Lovelace 596, Id. at 522 him.”5 to search public in allowed Womack Commonwealth, 237, Va.App. v. In 36 West at 860. S.E.2d immediately after (2001), a conducted 549 S.E.2d 605 search and before out summonses” “filling officer was the search justified by not effected was could be 240-42, 549 Id. at at 606- S.E.2d exception. to arrest incident Commonwealth, 29 641, v. 513 Finally, in Rhodes Va.App. 07. (1999) (en banc), search incident we held that the 904 S.E.2d defendant was where the apply could not exception to arrest Id. 513 detention.” during “non-eustodial searched at 906.6 S.E.2d cause, I am probable based on

Because Moore’s arrest was rights Amendment were compelled to conclude that his Fourth In of a violation of Moore’s Fourth not violated. the absence exclusionary rule cannot apply, the federal rights, Amendment for an provides nor case law Virginia and neither the statute I to affirm exclusionary Accordingly, rule.7 would vote Moore’s conviction. argument, Supreme im- rejecting In Court

5. the Commonwealth’s Lovelace, rejected reasoning panel which plicitly of our decision require does a full custodial arrest held drat Constitution not ”[t]he complete probable permit search of the arrestee” where cause Commonwealth, Va.App. 27 500 arrest exists. Lovelace Commonwealth, (1998); Va.App. 29 see Rhodes v. S.E.2d 641, also (en ) (1999) (noting that n. 905 n. 1 banc longer precedent”). a viable panel our decision in “Lovelace is no arrested, we commented Despite 6. the fact that Rhodes was opinion of Code 19.2-74 footnote 6 of the that an arrest violation Rhodes, and, thus, require would exclusion. would be unconstitutional However, Va.App. 6. this statement at 645 n. 513 S.E.2d at 907 n. event, such, and, any unnecessary dicta. decision light precedent appears wrong long-standing to be statement Court, appeal, circuit courts of States federal from the United and cotuts, Virginia supra. cited Virginia Supreme regard, I Court’s recent In this find the affirming 537, in Hunt v. this Court’s decision banc) (en (affirming the defendant’s convic- S.E.2d 789 memorandum, opinion”), In a tion "without to be instructive. following: Court noted the Assuming, deciding, oc- without that a violation curred, was entitled to the defendant failed establish he 609 S.E.2d 84 Raney C. RANDOLPH Virginia. COMMONWEALTH of Record No. 0275-04-1. Appeals Virginia,

Court of of Chesapeake. Feb. suppression of the evidence obtained as a result of that search. rights, absence a violation constitutional of defendant's remedy statutory exclusion evidence is not available viola- for tion. Hunt, added). slip. op. (emphasis majority at 1 To the extent opinion interprets ‍​‌‌​‌‌​‌​​​‌​​‌​‌​‌​​‌‌‌‌‌​‌​​‌​​‌‌‌​‌​‌​​‌‌‌​​​‍Supreme opinion standing Court’s in Lovelace as proposition that a search to an incident arrest that violates Code constitutionally impermissible, 19.2-74 is Court's order stating illegal in Hunt that exclusion does not follow after such an interpreted. arrest indicates that Lovelace cannot be so

Case Details

Case Name: Moore v. Commonwealth

Court Name: Court of Appeals of Virginia

Date Published: Feb 22, 2005

Citation: 609 S.E.2d 74

Docket Number: Record 2648-03-1

Court Abbreviation: Va. Ct. App.