COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Coleman and
Senior Judge Duff
Argued at Alexandria, Virginia
KEVIN EUGENE HOLLAND
OPINION BY
v. Record No. 1320-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JULY 21, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
Barry A. Zweig, Assistant Public Defender,
for appellant.
Leah A. Darron, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Appellant was convicted in a jury trial of trespassing in
violation of Code § 18.2-119. On appeal, he contends the trial
court erred in failing to suppress a barment notice issued under
a policy authorizing police officers to act as agents for the
manager of a public housing complex. For the following reasons,
we affirm.
I.
In June 1995, the management of Loudoun House, a
federally-subsidized apartment complex, devised a strategy to
curb criminal activity and trespassing. The property manager
executed a power of attorney appointing as her agents all members
of the Leesburg Police Department and granting them the power to
issue barment notices to unauthorized individuals present on the
Loudoun House property. The power of attorney designated "each
and every sworn officer of the Leesburg Police Department as my
true and lawful attorneys-in-fact." The attorneys were
authorized to act for the property management agency as follows:
(1) To serve trespass notices to any
persons encountered on Loudoun House property
who are not on a lease and cannot demonstrate
a legitimate purpose for being on the
premises. The trespass notice shall forbid
the person served with it from returning to
the property of Loudoun House.
(2) To file criminal complaints for
trespass on Loudoun House property if persons
served with trespass notices return to the
premises.
(3) To testify on behalf of the
management of Loudoun House in any criminal
prosecutions arising out of the trespass
notices and complaints described above that
the officers are the "attorneys-in-fact" of
the National Housing Property Management
Company, and as such are authorized to issue
barment notices.
On June 5, 1996, Captain Christopher Jones, using the power
of attorney, issued appellant a barment notice signed by the
Loudoun House management. The notice stated that the management
had given the police permission to issue the barment, that
appellant was being notified that he was not permitted to be
present on the Loudoun House property "under any circumstances,"
and that if he returned to the property he was subject to arrest
for trespassing. Appellant signed the notice indicating he
understood what it meant.
On September 28, 1996, Officer Mike Buracker was conducting
a plainclothes patrol of the Loudoun House apartment complex when
he was advised that appellant was present on the premises in the
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area of building twelve. The officer went to that location and
saw appellant leaving building twelve with an open beer in his
hand. Buracker knew appellant was listed on a police print-out
of persons who had been barred from the property and arrested him
for trespassing in violation of Code § 18.2-119. 1
Appellant filed a motion to suppress the power of attorney
and barment evidence. The trial court denied the motion,
convicted appellant of trespassing, and imposed a fine of $1,000.
On April 1, 1997, subsequent to appellant's trial, the
Leesburg Town Council adopted a resolution supporting the
issuance of barment notices using the limited power of attorney.
The resolution stated that "the issuance of barment notices by
the town police in this manner has been a successful procedure in
discouraging criminal and drug related activity." The council
ratified the procedure and authorized it "to be utilized by the
town police to ensure the health, safety and welfare of all
citizens of the Town."
II.
Appellant contends the duties enumerated in the power of
attorney exceeded the scope of legitimate police authority and
thus the power of attorney had no effect. He argues that as a
1
"If any person without authority of law goes upon or remains
upon the lands, buildings or premises of another, or any portion
or area thereof, after having been forbidden to do so, either
orally or in writing, by the owner, lessee, custodian or other
person lawfully in charge thereof . . . he shall be guilty of a
Class 1 misdemeanor." Code § 18.2-119.
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result the Commonwealth failed to establish that Captain Jones
had the authority to issue the barment notice and therefore
failed to prove that appellant had effective notice that he was
barred from the property as required by Code § 18.2-119.
The question of whether a police officer may act as an agent
for a property owner, lessee, custodian or other person lawfully
in charge of property for the purpose of issuing barment notices
to people who "are unable to demonstrate a legitimate reason for
being on the property" is an issue of first impression in
Virginia. Additionally, the General Assembly has not addressed
this question, and no Virginia statute expressly authorizes or
prohibits this practice.
A review of the law of our sister states reveals that no
other state has considered this precise question. However,
several jurisdictions have approved similar or related practices
to combat the problem of criminal and drug-related activities of
non-residents in public housing. See Daniel v. City of Tampa, 38
F.3d 546 (11th Cir. 1994) (police enforcement of "trespass after
warning" statute upheld against constitutional challenge by
leafleteer); Daniel v. City of Tampa, 818 F. Supp. 1491, 1492
(M.D. Fla. 1993) (public housing complexes "have a serious
problem with drugs and other crimes . . . caused by people who do
not live in the public housing areas"); L.D.L. v. State, 569
So.2d 1310 (Fla. Dist. Ct. App. 1990) (acknowledging police
authority to issue "no trespass" warnings to unauthorized
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individuals on public housing complex property); Williams v.
Nagel, 643 N.E.2d 816 (Ill. 1994), cert. denied, 514 U.S. 1064
(1995) (police issued "barred notices" and gave names of those
barred to public housing management who determined whether to
place them on the "no trespass" list of people to be arrested for
trespassing if they returned to the property); People v. Kojac,
Nos. 7242/97, 98-188 (N.Y. Sup. Ct. Mar. 18, 1998) (describing
"trespass affidavit building" in which building management
authorized police to arrest anyone who entered without a
legitimate reason); State v. Newell, 639 N.E.2d 513 (Ohio Ct.
App. 1994) (noting off-duty police officers acted as agents for
public housing authority in issuing trespassing warnings); City
of Dayton v. Williams, No. 13686, 1994 WL 37263 (Ohio Ct. App.
Feb. 11, 1994) (describing public housing authority policy
whereby police officers issue trespass notices to unauthorized
individuals on the property and arrest those who previously
received warnings).
In Daniel v. City of Tampa, 38 F.3d 546 (11th Cir. 1994),
the Eleventh Circuit Court of Appeals tacitly approved a
procedure that closely resembled the one at issue in the instant
case. The public housing property in Tampa, under the control of
the Housing Authority, was "often used by non-residents as a
place to sell and use drugs." Id. at 548. As a result, the
Housing Authority limited property access to "residents, invited
guests of residents, and those conducting official business."
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Id. "Enforcement of this limited access policy [was]
accomplished through enforcement of Florida's trespass after
warning statute." Id. Under "a special agency agreement," the
Housing Authority authorized the Tampa Police Department "to
issue warnings to persons trespassing upon Housing Authority
property. Once an individual is issued a trespass warning, he is
placed on a list and is subject to arrest if found on Housing
Authority property again." Id.
After reviewing the procedure, the court found "the Tampa
police have virtually no discretion when enforcing the statute on
the Housing Authority property: any person who is not a lawful
resident of the property, an invited guest, or present on
official business, is subject to arrest after receiving a
warning." Id. at 551. The court upheld the "trespass after
warning" statute against vagueness and freedom of speech
challenges, holding that "enforcement of Florida's trespass after
warning statute on the property is a reasonable means of
combatting drug and crime problems on the property." Id.
Although the defendant in Daniel did not directly challenge the
authority of the police to issue warnings on behalf of the
property management, the court's acceptance of the policy as
"reasonable" is noteworthy.
In Virginia, the Dillon Rule of strict construction dictates
our determination of the powers of local governing bodies and of
the city police as the law enforcement arm of the local
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government. This rule provides as follows:
"[A] municipal corporation possesses and can
exercise the following powers, and no others:
First, those granted in express words;
Second, those necessarily or fairly implied
in or incident to the powers expressly
granted; Third, those essential to the
declared objects and purposes of the
corporation, not simply convenient, but
indispensable."
Commonwealth v. Rivera, 18 Va. App. 103, 108, 442 S.E.2d 410, 413
(1994) (quoting City of Winchester v. Redmond, 93 Va. 711, 714,
25 S.E. 1001, 1002 (1896)). "'The Dillon Rule is applicable to
determine in the first instance, from express words or by
implication, whether a power exists at all. If the power cannot
be found, the inquiry is at an end.'" Lawless v. County of
Chesterfield, 21 Va. App. 495, 499, 465 S.E.2d 153, 155 (1995)
(quoting Commonwealth v. County Bd. of Arlington County, 217 Va.
558, 575, 232 S.E.2d 30, 41 (1977)).
Under Code § 15.1-839, a municipal corporation has general
powers to promote the welfare of the people. 2 Although the
2
"A municipal corporation shall have and may exercise all
powers which it now has or which may hereafter be conferred upon
or delegated to it under the Constitution and laws of the
Commonwealth and all other powers pertinent to the conduct of the
affairs and functions of the municipal government, the exercise
of which is not expressly prohibited by the Constitution and the
general laws of the Commonwealth, and which are necessary or
desirable to secure and promote the general welfare of the
inhabitants of the municipality and the safety, health, peace,
good order, comfort, convenience, morals, trade, commerce and
industry of the municipality and the inhabitants thereof, and the
enumeration of specific powers shall not be construed or held to
be exclusive or as a limitation upon any general grant of power,
but shall be construed and held to be in addition to any general
grant of power." Code § 15.1-839 (superseded by Code
§ 15.2-1102, effective December 1, 1997).
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Leesburg Town Council ratified the barment process at issue,
appellant's arrest and conviction pre-dated the town's
resolution. 3 At the time of appellant's arrest, police officers
were acting at the request of the property manager for ongoing
police assistance in prevention of crime in a public housing
complex. To facilitate this assistance, the Loudoun House
management conferred on the police authority to bar unauthorized
individuals from the property. Therefore, we must address
whether the police compliance with the property manager's request
and their acceptance of this authority were within the scope of
power granted to police or necessarily implied in Code
§ 15.1-138.
Code § 15.1-138, the statute in effect at the time of
appellant's arrest, 4 expressly granted police officers the
3
In light of our holding that the barment procedure was
within the scope of powers granted to police and the fact that
the resolution had not been adopted at the time of appellant's
arrest, we need not examine whether the resolution ratifying the
procedure was within the authority of the Town of Leesburg.
4
Code § 15.1-138 was repealed and replaced by the following
section:
Powers and duties of police force [Effective
December 1, 1997]. -- A. The police force of
a locality is hereby invested with all the
power and authority which formerly belonged
to the office of constable at common law and
is responsible for the prevention and
detection of crime, the apprehension of
criminals, the safeguard of life and
property, the preservation of peace and the
enforcement of state and local laws,
regulations, and ordinances. . . .
Code § 15.2-1704.
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following powers:
The officers and privates constituting the
police force of counties, cities and towns of
the Commonwealth are hereby invested with all
the power and authority which formerly
belonged to the office of constable at common
law in taking cognizance of, and in enforcing
the criminal laws of the Commonwealth and the
ordinances and regulations of the county,
city or town, respectively, for which they
are appointed or elected. Each policeman
shall endeavor to prevent the commission
within the county, city or town of offenses
against the law of the Commonwealth and
against the ordinances and regulations of the
county, city or town; shall observe and
enforce all such laws, ordinances and
regulations; shall detect and arrest
offenders against the same; shall preserve
the good order of the county, city or town;
and shall secure the inhabitants thereof from
violence and the property therein from
injury.
The plain language of the statute granted police officers the
power to prevent and detect crime, to arrest criminals, and to
protect life and property. Because Code § 15.1-138 did not
explicitly address police authority to issue barment notices,
under a Dillon Rule analysis, we must determine whether this
power was "necessarily or fairly implied in or incident to" the
powers expressly granted by the statute.
"We look to the purpose and objective of [Code § 15.1-138]
in considering whether this authority necessarily is implied from
the powers expressly granted by the statute." City of Chesapeake
v. Gardner Enters., Inc., 253 Va. 243, 247, 482 S.E.2d 812, 815
(1997). "The statute must be given a rational interpretation
consistent with its purposes, and not one which will
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substantially defeat its objectives." Id. One of the objectives
of Code § 15.1-138 is the detection and prevention of illegal
activities, including drug-related crimes. Police officers are
also empowered to arrest criminals and are charged with the
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responsibility of protecting life and property. Necessarily
implied in these duties is the power of the police to respond to
requests for assistance from private citizens.
It is undisputed that the police had the power to accept the
property manager's authority to bar a specified individual from
the property. This power furthered the objectives of the police
to prevent crime, to protect life and property, and to preserve
the peace, and it was necessarily implied in the powers expressly
granted to police by Code § 15.1-138.
In the instant barment procedure, the request for
assistance, as well as the police response, was ongoing. Rather
than respond to separate requests for service of a barment notice
upon each unauthorized individual, the property manager's limited
power of attorney empowered police to bar any unauthorized
individual from the property. This practice allowed police to
identify and remove individuals who were on the property without
legitimate purpose, thus preventing crime, protecting property,
and preserving the peace.
For the foregoing reasons, we hold that the limited
authority to grant barment notices was a necessary and expedient
means of crime prevention and was "fairly implied in or incident
to the powers expressly granted" to police by Code § 15.1-138.
Consequently, the officers did not act outside their statutory
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authority by issuing a notice barring appellant from Loudoun
House, and the conviction is affirmed. 5
Affirmed.
5
Appellant also contends the issuance of a barment notice is
a civil matter over which police authority is statutorily
prohibited. See Code § 15.1-138 ("policemen shall have no power
or authority in civil matters"). This contention misinterprets
the statute. Although barment, a private action grounded in the
law of property rights, is a civil matter, see Black's Law
Dictionary 246 (6th ed. 1990) (defining civil laws as "concerned
with . . . private rights and remedies"), Code § 15.1-138 does
not prohibit private grants of authority over civil matters, and
it is the validity of such a grant of power that is in question
here.
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