COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Alston and Senior Judge Willis
UNPUBLISHED
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 1513-12-1 JUDGE ROSSIE D. ALSTON, JR.
JANUARY 22, 2013
JAMES ELMER HUDGINS
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
R. Bruce Long, Judge
Benjamin H. Katz, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief) for appellant.
Brian W. Decker (Dusewicz, Soberick & Decker, on brief), for
appellee.
The Commonwealth appeals the trial court’s pretrial order granting a motion to suppress
property seized as a result of the search and seizure of James Elmer Hudgins’ (defendant) vehicle on
April 8, 2012. On appeal, the Commonwealth argues that the trial court erred in granting the
motion to suppress because it ruled that the only justification for a vehicle impoundment under the
community caretaker exception is “to protect the community’s safety.” For the reasons that follow,
we find that the trial court erred in granting the motion to suppress and remand the case for a trial
on the merits if the Commonwealth is so inclined.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. Background 1
When we review a trial court’s denial of a motion to suppress, “[w]e view the evidence in
a light most favorable to . . . the prevailing party below, and we grant all reasonable inferences
fairly deducible from that evidence.” Commonwealth v. Grimstead, 12 Va. App. 1066, 1067,
407 S.E.2d 47, 48 (1991). “On appeal, we consider the entire record in determining whether the
trial court properly [ruled on an] appellant’s motion to suppress.” Patterson v. Commonwealth,
17 Va. App. 644, 648, 440 S.E.2d 412, 415 (1994) (citing DePriest v. Commonwealth, 4
Va. App. 577, 583, 359 S.E.2d 540, 543 (1987)).
So viewed, the evidence indicated that on the morning of April 8, 2012, Deputy Thorson
of the Gloucester County Sheriff’s Department and another officer were dispatched to an address
in Gloucester, Virginia, in response to a report of a possible trespasser. While en route, Deputy
Thorson received information from the dispatcher specifically identifying defendant as the
trespasser and that he was “a wanted subject” in Mathews County, Virginia.
When Deputy Thorson arrived at the address, he saw that there was an “apartment over a
garage” and a trailer behind the residence. Deputy Thorson was unsure if the apartment and
trailer were at the same address, but noted that both shared a driveway.
Deputy Thorson saw a red and white Dodge pickup truck parked between the apartment
and the trailer and saw defendant asleep inside the truck. Deputy Thorson asked defendant to
identify himself, and defendant gave Deputy Thorson his name. Deputy Thorson noted that
defendant was not a resident of the apartment or trailer “according to his license [and] ID
1
As the parties are fully conversant with the record in this case and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
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return.” Deputy Thorson asked defendant to step out of the truck and detained him while the
dispatcher confirmed the status of the Mathews County warrant.
A few minutes later, the dispatcher confirmed that defendant was wanted on a warrant
from Mathews County. Accordingly, Deputy Thorson placed defendant under arrest, and
defendant was transported to the Sheriff’s Department. Deputy Thorson did not ask defendant if
he lived on the premises or whether he had permission to park his truck there.
The officer accompanying Deputy Thorson went to speak with Ashley George, the tenant
of the apartment who had made the original trespassing complaint. George told the officer to
remove the truck and that she did not want it on the property. As a result, the dispatcher called a
tow truck owned by a private towing company. The officers conducted an “inventory search” of
the vehicle before the truck was towed. During the search, the officers found contraband in the
truck.
The defendant was indicted for possession of cocaine in violation of Code § 18.2-250.
The defendant filed a motion to suppress the contraband seized during the inventory search of
the truck, and the trial court held a hearing on the motion. At the hearing, Deputy Thorson
testified as to the events of April 8, 2012, and the circumstances related to the officers’ search of
defendant’s truck. Specifically, Deputy Thorson testified that the purpose of the search was to
protect the Sheriff’s Department and the owner of the vehicle in the event of claims of loss of
items or damage to the vehicle. Deputy Thorson also testified that defendant’s vehicle was not
being impounded and the only reason the officers called the towing company was because
George requested it. Deputy Thorson confirmed that the truck was parked on private property,
was not affecting the ability of other vehicles to use the driveway, and did not present a traffic
hazard.
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In addition, Deputy Thorson testified regarding two Gloucester County Sheriff’s
Department policies. Deputy Thorson confirmed that the Department’s “tow policy” states,
“Improperly parked vehicles on private property are a civil dispute between the property owner
and the vehicle owner. Gloucester County Sheriff’s Office has no authority over the dispute
other than to maintain peace and order while the dispute is being resolved between the [a]ffected
parties.” Deputy Thorson also testified that in towing defendant’s car, he was relying upon
Department policy stating that “any person who is arrested for an offense and no one else is on
the scene, the vehicle needs to be removed or towed.”
Finally, Deputy Thorson testified about the procedure for “inventory searches.” He
stated that the officer conducting the inventory search has a “piece of paper” that he fills out
when a vehicle is removed and an inventory search conducted. On this “piece of paper” the
officer conducting the inventory search notes the contents of the vehicle and any damage to it.
He testified that the inventory search is conducted “to help for civil litigation or damage to the
vehicle that may be either stolen or damage to the vehicle or anything that may occur.” Deputy
Thorson testified that officers conduct inventory searches when a vehicle is being towed to a
private lot or “to an impound.”
At the conclusion of the hearing, the trial court granted defendant’s motion to suppress.
Relying on South Dakota v. Opperman, 428 U.S. 364 (1976), and Cady v. Dombrowski, 413
U.S. 433 (1973), the trial court found that the sole justification identified by the Supreme Court
in allowing warrantless searches pursuant to the community caretaker exception to the warrant
requirement is “to protect the community’s safety.” The trial court found that there was no
safety concern prompting the police to remove the truck in this case, and, accordingly, granted
the motion to suppress. This appeal followed.
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II. Analysis
“In the context of the Fourth Amendment, ‘[u]ltimate questions of reasonable suspicion
and probable cause . . . involve questions of both law and fact and are reviewed de novo on
appeal.’” King v. Commonwealth, 39 Va. App. 306, 309, 572 S.E.2d 518, 519 (2002) (quoting
McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc)
(internal quotation marks omitted)). We are “bound by the trial court’s findings of historical fact
unless ‘plainly wrong’ or without evidence to support them and we give due weight to the
inferences drawn from those facts by resident judges and local law enforcement officers.”
McGee, 25 Va. App. at 198, 487 S.E.2d at 261 (citing Ornelas v. United States, 517 U.S. 690,
699 (1996)). “The trial court’s legal conclusion concerning when, or whether, a seizure or search
occurred is reviewed de novo.” King, 39 Va. App. at 309, 572 S.E.2d at 520.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures . . . .” U.S. Const.
amend. IV. “The Fourth Amendment does not forbid all searches and seizures but only those
that are unreasonable.” Cabbler v. Commonwealth, 212 Va. 520, 522, 184 S.E.2d 781, 782-83
(1971) (citing Terry v. Ohio, 392 U.S. 1, 9 (1968); Kirby v. Commonwealth, 209 Va. 806, 167
S.E.2d 411 (1969)). “Whether a particular search is unreasonable within the meaning of the
Fourth Amendment depends upon the particular facts and circumstances of the case.” Id. at 522,
184 S.E.2d at 783.
“Searches and seizures conducted without a warrant are presumptively invalid.”
Williams v. Commonwealth, 42 Va. App. 723, 730, 594 S.E.2d 305, 309 (2004) (citing
Minnesota v. Dickerson, 508 U.S. 366, 372 (1993)). However, Virginia jurisprudence
recognizes a few “‘specifically established and well[-]delineated exceptions’ to the warrant
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requirement.” King, 39 Va. App. at 309, 572 S.E.2d at 519 (quoting McNair v. Commonwealth,
31 Va. App. 76, 89, 521 S.E.2d 303, 310 (1999) (en banc) (Benton, J., concurring in part and
dissenting in part) (internal quotations omitted)). Among these exceptions, Virginia recognizes
the “community caretaker” exception. Williams, 42 Va. App. at 730, 594 S.E.2d at 309.
The community caretaker exception to the warrant requirement is not limited to only
those instances in which public safety is threatened. In Opperman, the Supreme Court applied
the community caretaker exception and recognized the reasonableness and legality of inventories
conducted pursuant to standard police procedures when vehicles are lawfully impounded. 428
U.S. at 375-76. Relying on Supreme Court precedent, this Court has also recognized the
propriety of inventory searches in certain cases. In Williams, this Court held that the community
caretaker exception is grounded in three policy considerations: “1) the protection of the owner’s
property while it remains in police custody, 2) the protection of police against claims or disputes
concerning lost or stolen property, and 3) protection of the public and the police from physical
danger.” 42 Va. App. at 730, 594 S.E.2d at 309 (citing Opperman, 428 U.S. at 373-76; Cady,
413 U.S. at 442-48; Reese v. Commonwealth, 220 Va. 1035, 1039, 265 S.E.2d 746, 749 (1980)).
Therefore, we find that the trial court erred when it determined that the community caretaker
exception was grounded only in the need to protect public safety and so could not apply in this
case.
Moreover, we conclude that the warrantless inventory search in this case was justified
under the community caretaker exception. Three conditions must be met in order for the
community caretaker exception to justify a warrantless inventory search: “1) the vehicle must be
lawfully impounded; 2) the impoundment and subsequent search must be conducted pursuant to
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standard police procedures; and 3) the impoundment and subsequent search must not be a
pretextual surrogate for an improper investigatory motive.” Id. at 731, 594 S.E.2d at 309.
Defendant’s truck was lawfully impounded. The Supreme Court of Virginia has
recognized that impoundment of a vehicle is reasonable where the driver is taken into custody
and had no immediate means to safeguard the vehicle or protect his property. 2 See Cabbler, 212
Va. at 522, 184 S.E.2d at 782.
Defendant argues that it was unnecessary and unlawful to tow his truck because the
police did not verify that defendant did not have a right to be on the premises. We find that even
viewing the evidence in the light most favorable to defendant, the officers’ conclusion that
defendant did not have a right to be on the premises was reasonable. The officers were
responding to a trespassing complaint concerning defendant. Deputy Thorson noted that
defendant was not a resident of the apartment or trailer “according to his license [and] ID
return.” A resident of the premises asked the officers to remove defendant’s truck. In light of
this information, the officers’ conclusion that defendant did not have a right to be on the
premises was reasonable, and the officers were not required to take further action to confirm that
defendant had no right to be on the premises.
Defendant also argues that it was unnecessary and unlawful to tow his truck because,
unlike other cases in which this Court has upheld inventory searches, his truck did not pose a
2
It is irrelevant to the analysis that defendant’s truck was towed by a private towing
company to a private lot or that Deputy Thorson testified that the truck was not being
impounded. The United States Supreme Court and the Supreme Court of Virginia have
recognized the propriety of inventory searches even when a vehicle is towed to a private lot. See
Cady, 413 U.S. at 436, 448 (upholding a warrantless inventory search conducted on a car “towed
to a privately owned garage”); Girardi v. Commonwealth, 221 Va. 459, 464, 270 S.E.2d 743,
746 (1980) (holding that “[w]here . . . the seized vehicle will be towed by a private operator to a
private impoundment lot there is good reason for the police to make an inventory search before
they relinquish even temporary control over the car”).
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traffic hazard and was towed only as a “favor” to George. We disagree. The officers’ decision
to impound the truck was lawful and reasonable, despite the fact that defendant’s truck was not
posing a traffic hazard.
This Court’s decision in Servis v. Commonwealth, 6 Va. App. 507, 371 S.E.2d 156
(1988), is instructive in this regard. In Servis, this Court upheld the trial court’s denial of a
motion to suppress evidence found during an inventory search of the defendant’s car when the
car was towed from a motel parking lot. Id. at 523, 371 S.E.2d at 164. The defendant, a guest at
the motel, had been arrested, leaving his car parked in the motel parking lot. Id. at 512, 371
S.E.2d at 158. The police asked the motel clerk if the motel would take responsibility for the car.
Id. When she said that it would not, the police had the car towed and conducted an inventory
search. Id. at 513, 371 S.E.2d at 158. This Court found that the officer’s decision to impound
the car was reasonable because it was uncertain whether the defendant, who was under arrest,
would return to the motel before his check-out time to retrieve his car and “the motel clerk asked
that it be removed.” Id. at 523, 371 S.E.2d at 164.
Similarly, in the instant case, a resident of the premises, George, requested that the police
tow the truck. As discussed above, the officers reasonably concluded that defendant did not have
permission to keep his truck on the premises. Therefore, as in Servis, the officers’ decision to
tow the truck was lawful and reasonable. As a result, we find that the vehicle was lawfully
impounded.
The impoundment and search were also conducted pursuant to standard police
procedures. Defendant argues that the impoundment was not conducted pursuant to police
department policy because the Sheriff’s Department policy states that the Sheriff’s Department
has no authority over disputes arising from improperly parked vehicles on private property.
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However, Deputy Thorson testified about two police policies: a policy regarding disputes arising
from vehicles parked on private property and a policy authorizing police to remove or tow a
vehicle when the driver is arrested and there is no one else to take custody of the vehicle.
Deputy Thorson testified that defendant’s truck was towed pursuant to the latter policy. Deputy
Thorson also testified about the Department policy for conducting inventory searches. The
evidence in the record shows that the impoundment and search were both conducted in
accordance with these policies. As a result, we find that the vehicle was impounded and
searched pursuant to standard police procedures.
Finally, we hold that there was no improper investigatory motive for the impoundment
and search of the vehicle. Defendant does not argue that the impoundment and search were a
pretextual surrogate for an improper investigatory motive, and there is no evidence in the record
before us that the impoundment and search were pretextual.
For these reasons, we find that the trial court erred in granting defendant’s motion to
suppress. The trial court erroneously held that the community caretaker exception applies only
in situations where public safety is at risk. When properly applied, the community caretaker
exception justified the inventory search of defendant’s truck. Thus, we reverse and remand for a
trial on the merits, if the Commonwealth be so inclined.
Reversed and remanded.
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