COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Agee
Argued at Alexandria, Virginia
ANTONIO FREDERICK KING
OPINION BY
v. Record No. 2815-01-4 JUDGE ROSEMARIE ANNUNZIATA
DECEMBER 3, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Kathleen H. MacKay, Judge
Martin W. Lester, Public Defender, for
appellant.
Kathleen B. Martin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
On February 21, 2001, Arlington County Sheriff's Deputy
Randy Hill stopped Antonio Frederick King, the appellant, for a
traffic violation. After determining that King was driving on a
suspended Virginia license, Hill impounded his vehicle and
conducted an inventory search. The trial court denied King's
motion to suppress evidence found as a result of that search. It
is from this ruling that King appeals. For the reasons that
follow, we reverse.
Background
In reviewing the trial court's denial of the motion to
suppress, we view the evidence in the light most favorable to the
Commonwealth, the party prevailing below, and grant to it all
reasonable inferences fairly deducible therefrom. See Dickerson
v. Commonwealth, 35 Va. App. 172, 177, 543 S.E.2d 623, 626 (2001)
(citing Greene v. Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d
138, 139 (1994)). So viewed, the evidence establishes that Hill
stopped King for speeding and verified that he was driving on a
valid Maryland license, but determined his Virginia license had
been suspended for failure to pay fines. Hill issued King a
summons for reckless driving and driving on a suspended license.
After King acknowledged he had received notice of his
Virginia license's suspension, Hill impounded King's vehicle for
"safekeeping," pursuant to the sheriff's department policies.
Departmental policy describes the decision to impound a vehicle
as a "judgment call" to be made by the deputy who makes the stop.
Impoundment is "highly recommended" under the policy, and Hill's
common practice was to have the vehicle towed if the driver did
not have someone available to drive it from the site, even if the
vehicle was legally parked.
King's vehicle was stopped on a two-lane "very heavily
congested" street. An elementary school and other public
buildings, including a library, were located nearby. Hill
testified that he "wouldn't put a vehicle there and just leave it
there" because the street was congested, and it was "not a rural
street [where one would] leave a vehicle." However, the vehicle
was not impeding traffic and there was no evidence it was in a
no-parking or otherwise restricted zone.
The inventory search Hill performed before the vehicle was
towed yielded a bag of money "halfway hidden" behind a spare tire
on the left rear side of the vehicle and another bag of money
inside a blue "lunch zip tight bag." King explained that the
money had been in his possession for two days, as an employee of
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a vending company. Ultimately, the money, totaling $2,289.95,
was determined to have been stolen from a vending company in
Fairfax, Virginia. Hill also found two crowbars, four
screwdrivers, miscellaneous Allen wrenches, keys, and two pairs
of gloves in the vehicle.
The trial court denied King's pretrial motion to suppress
the evidence, accepting the Commonwealth's argument that Hill had
properly impounded and searched the vehicle under the community
caretaker function. The court found Hill's decision to impound
the vehicle "eminently sensible," given that the area where the
stop occurred was congested. 1
Analysis
In reviewing the trial court's denial of a motion to
suppress on appeal, we will review the evidence in the light most
favorable to the Commonwealth, the party prevailing below,
together with all reasonable inferences that may be drawn. See
Dickerson, 35 Va. App. at 177, 543 S.E.2d at 626. The burden to
establish that the denial of the motion to suppress constituted
reversible error rests with the defendant. See Motley v.
Commonwealth, 17 Va. App. 439, 440-41, 437 S.E.2d 232, 233
(1993). The Fourth and Fourteenth Amendments to the United
States Constitution forbid using evidence at trial obtained as a
result of an unreasonable search and seizure, and a warrantless
search is per se unreasonable unless it falls within one of the
1
The Commonwealth conceded before the trial court that the
search was not conducted incident to arrest since King was not
placed under arrest. See Code 46.2-301. It further conceded
that Hill did not have probable cause to search the vehicle.
See Hollis v. Commonwealth, 216 Va. 874, 877, 223 S.E.2d 887,
889 (1976).
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few "specifically established and well-delineated exceptions" to
the warrant requirement. McNair v. Commonwealth, 31 Va. App. 76,
82, 521 S.E.2d 303, 306 (1999).
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.'" McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487
S.E.2d 259, 261 (1997) (en banc) (quoting Ornelas v. United
States, 517 U.S. 690, 699 (1996)). However, the appellate court
is "bound by the trial court's findings of historical fact unless
'plainly wrong' or without evidence to support them and [it]
give[s] due weight to the inferences drawn from those facts by
resident judges and local law enforcement officers." Id. at 198,
487 S.E.2d at 261 (citing Ornelas, 517 U.S. at 699). The trial
court's legal conclusion concerning when, or whether, a seizure
or search occurred is reviewed de novo. See McNair, 31 Va. App.
at 82, 521 S.E.2d at 306; see also McGee, 25 Va. App. at 198, 487
S.E.2d at 261; United States v. Mendenhall, 446 U.S. 544, 552
(1980).
In the case at bar, the Commonwealth justifies the search of
King's car under the "community caretaking doctrine." See
generally South Dakota v. Opperman, 428 U.S. 364 (1976); Cady v.
Dombrowski, 413 U.S. 433 (1973). In Opperman, the car in
question had been illegally parked in a restricted zone for at
least seven hours, and had been issued multiple citations for
parking violations. See Opperman, 428 U.S. at 366. The Supreme
Court upheld the subsequent inventory search as valid, on the
ground that the owner of the vehicle was not present to safeguard
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his belongings, which were inside the vehicle and clearly visible
to the police. See id. at 368. The Court stated "[i]n the
interests of public safety and as a part of what the Court has
called 'community caretaking functions,' automobiles are
frequently taken into police custody." Id. The Court gave two
examples of circumstances warranting the application of the
doctrine: vehicles disabled or damaged in an accident, and
vehicles in violation of parking ordinances. "To permit the
uninterrupted flow of traffic and in some circumstances to
preserve evidence, disabled or damaged vehicles will often be
removed from the highways or streets at the behest of police
engaged solely in caretaking and traffic-control activities."
Id. Additionally, the Court noted that vehicles "violat[ing]
parking ordinance[s] . . . jeopardize both public safety and the
efficient movement of vehicular traffic . . . ." Id.
In Cady, a police officer, who was required to carry his
service revolver at all times, had a one-car accident near a
small town. See Cady, 413 U.S. at 433. His car crashed into a
bridge abutment just off the highway and was disabled. The
officer was arrested for drunk driving and removed from the
scene. See id. The Court found the vehicle constituted a
"nuisance on the highway" and, therefore, was properly impounded
before a valid inventory search was conducted. See id. at 442-
43. Additionally, the Cady Court noted the responding police
officer's concern that the driver's service revolver might be in
the car and susceptible to theft by vandals if the car had been
left on the highway. See id.
The Virginia Supreme Court, in Reese v. Commonwealth, 220
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Va. 1035, 265 S.E.2d 746 (1980), grounded the warrantless
inventory exception to the Fourth Amendment in the same policy
considerations identified in Opperman and Cady: the need to 1)
protect the owner's property while it remains in police custody,
2) protect the police against claims or disputes concerning lost
or stolen property, and 3) protect the public and the police from
physical danger. See Reese, 220 Va. at 1039, 265 S.E.2d at 749.
In addition to these policy considerations, this Court has held
that, to justify a warrantless inventory search by the police,
the Commonwealth must show 1) the vehicle was lawfully impounded,
2) pursuant to standard police procedures and 3) the impoundment
and subsequent search are not a pretext concealing an
investigatory motive. See Servis v. Commonwealth, 6 Va. App.
506, 521, 371 S.E.2d 156, 163 (1988).
The validity of the impoundment is a question separate from
the validity of the subsequent inventory search and must be
determined first. See generally, Opperman; Cabbler v.
Commonwealth, 212 Va. 520, 184 S.E.2d 781 (1971). Relying on
this Court's holding in Servis, King contends his car was not
lawfully impounded, thus invalidating the subsequent search. In
Servis, the police responded to an attempted break-in report at a
local motel. The officers learned from the front desk clerk that
a car in the parking lot belonged to the defendant. See Servis,
6 Va. App. at 511, 371 S.E.2d at 157. After finding drug
paraphernalia in Servis' room, the police arrested him and
brought him before a magistrate. See id. When the motel clerk
declined to take responsibility for the defendant's car, as
requested by police, the officer made arrangements to have the
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car towed. In anticipation of the impoundment, he conducted an
inventory search of the car. See id. at 512-13, 371 S.E.2d at
158.
In affirming the trial court's denial of Servis' motion to
suppress, we held that "[a] routine inventory search of a
lawfully impounded vehicle conducted pursuant to standard police
procedure is reasonable under the Fourth Amendment unless it is
'a pretext concealing an investigatory motive.'" Id. at 521, 371
S.E.2d at 163 (quoting Opperman, 428 U.S. at 368-69). We upheld
the impoundment and subsequent inventory search on the ground the
police could not be certain if the defendant would be released in
2
time to remove the car from the motel parking lot. See id.
Furthermore, the motel clerk had asked that the car be removed
from the motel's private property and the defendant was unable to
comply with the request.
Here, Hill's subjective view that he "wouldn't put a vehicle
there and just leave it there" does not substitute for objective
facts establishing that the public's safety was at risk or that a
need to safeguard the vehicle existed. Objective reasonableness
remains the linchpin of determining the validity of action taken
under the community caretaker doctrine. See Terry v.
Commonwealth, 23 Va. App. 87, 90, 474 S.E.2d 172, 173 (1996).
Moreover, the reasonableness of a search depends on the facts and
circumstances of each case. See id. In the case at bar, King's
vehicle was properly parked. Although the area where the stop
occurred was described as a "very heavily congested" two-lane
2
After 11:00 a.m., the defendant's car would have been
parked illegally.
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street near an elementary school, a library, and other public
buildings, the car neither obstructed the free flow of traffic,
posed a trespassory presence on private property, nor violated
any parking ordinances. In addition, King, the owner of the
vehicle, was not taken into custody or removed from the scene
and, although he could not personally drive the vehicle, the
evidence failed to show he was unable to arrange for its removal
to another location, or to safeguard his property. See, e.g.,
Cabbler, 212 Va. at 521, 184 S.E.2d at 782. Indeed, the record
shows that the police made no inquiry regarding King's ability to
make arrangements to have the car driven from Virginia to his
home in Maryland or otherwise moved. Moreover, there is no
evidence that, prior to impoundment, King had property in the
car, subject to theft or vandalism.
The Commonwealth premises its arguments on Hill's "common
practice" to have vehicles towed if the driver did not have
someone available to drive it from the scene and that Hill had
the discretion to conduct such inventory searches under
departmental policy. However, the Fourth Amendment compels an
analysis that is grounded in the facts of the specific case under
investigation which, when properly conducted, discloses to the
officer a legally-recognized basis for conducting a warrantless
inventory search. In conducting the requisite analysis, the
individual citizen's right to be free from unwarranted searches
of one's person or property is to be balanced against the public
interest in the safety and welfare of all those involved. Thus,
a law enforcement department's general grant of authority to its
officers to exercise discretion in impounding vehicles, of
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necessity, incorporates Fourth Amendment principles and the
limitations they impose on the exercise of discretion in
conducting such searches.
We further note that the Commonwealth's reliance on Cabbler
and Butler v. Commonwealth, 31 Va. App. 613, 525 S.E.2d 58
(2000), is misplaced; in those cases, the defendant was taken
into custody and removed from the scene. In Cabbler, the
defendant's car was parked illegally in front of a hospital, in a
no-parking zone, partially blocking the ambulance entrance to the
emergency room. The defendant was arrested and told his car
would be removed for safekeeping until his release from custody.
See Cabbler, 212 Va. at 521, 184 S.E.2d at 782. The Cabbler
Court determined the impoundment and search were lawful because
the defendant was arrested and no immediate means were available
to safeguard the vehicle. See id. at 522, 184 S.E.2d at 782.
In Butler, the police followed the defendant into the
parking garage of an apartment complex and arrested him for
speeding and driving with a suspended license. The defendant did
not live in the complex, which required a parking permit for all
parked cars, and he did not have permission as a guest to park in
the garage. The police impounded the car after a police officer-
resident said the vehicle had to be moved. See Butler, 31 Va.
App. at 617-18, 525 S.E.2d at 59-60. The Butler Court upheld the
impoundment and search on grounds similar to those stated in
Cabbler and recognized the right of police to "impound a vehicle
in the possession of a person arrested away from his or her
residence, provided there are no immediate means to protect the
vehicle . . . ." Id. at 618, 525 S.E.2d at 60 (citing Cabbler,
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212 Va. at 522-23, 184 S.E.2d at 782-83).
Finally, we disagree with the Commonwealth's position that
the impoundment and search were justified because,
hypothetically, someone could have tampered with or stolen the
car had it been left on the street. To permit impoundment and
inventory predicated solely on possible theft or vandalism would
altogether vitiate Fourth Amendment protections. Taken to its
logical extreme, such a doctrine would authorize an officer to
impound any car, in any location, including those legally parked,
at any time, because cars are always, hypothetically, subject to
theft and vandalism. We decline to adopt such a posture.
Accordingly, we reverse King's convictions and remand for a
new trial if the Commonwealth is so disposed.
Reversed and remanded.
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