COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Annunziata
Argued at Richmond, Virginia
LEROY THOMAS YOUNG
MEMORANDUM OPINION * BY
v. Record No. 1849-00-2 JUDGE LARRY G. ELDER
NOVEMBER 6, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GOOCHLAND COUNTY
F. Ward Harkrader, Jr., Judge
J. A. Martelino, Jr. (Law Office of Thomas O.
Bondurant, Jr., P.C., on brief), for
appellant.
Susan M. Harris, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Leroy Thomas Young (appellant) appeals from his bench trial
conviction for possession of cocaine. On appeal, he contends
the trial court erroneously denied his motion to suppress
cocaine seized from his suitcase during an inventory search. We
hold that any failure to follow sheriff's department guidelines
governing inventory searches did not rise to the level of a
constitutional violation and any evidence that appellant's
suitcase may have been tampered with by civilian personnel was
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
speculative and, thus, insufficient to bar admission of the
evidence. Therefore, we affirm the conviction. 1
On appeal of a ruling on a motion to suppress, we view the
evidence in the light most favorable to the prevailing party.
See Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407
S.E.2d 47, 48 (1991). "[W]e are bound by the trial court's
findings of historical fact unless 'plainly wrong' or without
evidence to support them[,]" McGee v. Commonwealth, 25 Va. App.
193, 198, 487 S.E.2d 259, 261 (1997) (en banc), but we review de
novo the trial court's application of defined legal standards to
the particular facts of the case, see Ornelas v. United States,
517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911
(1996).
Warrantless inventory searches of automobiles and any
closed containers found therein are reasonable under the Fourth
Amendment if conducted pursuant to "standard police procedures."
South Dakota v. Opperman, 428 U.S. 364, 372, 96 S. Ct. 3092,
3098-99, 49 L. Ed. 2d 1000 (1976); see Boggs v. Commonwealth,
229 Va. 501, 510-11, 331 S.E.2d 407, 414-15 (1985). "These
[inventory search] procedures developed in response to three
distinct needs: the protection of the owner's property while it
1
Appellant challenges only the trial court's ruling on the
motion to suppress. He does not challenge the sufficiency of
the evidence to prove his constructive possession of the cocaine
found in his suitcase.
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remains in police custody; the protection of the police against
claims or disputes over lost or stolen property; and the
protection of the police from potential danger." Opperman, 428
U.S. at 369, 96 S. Ct. at 3097 (citations omitted).
An inventory search conducted pursuant to standard
criteria, even a search involving some discretion, is reasonable
as long as the police do not "act[] in bad faith for the sole
purpose of investigation." Colorado v. Bertine, 479 U.S. 367,
372, 107 S. Ct. 738, 741, 93 L. Ed. 2d 739 (1987). "The
allowance of the exercise of judgment based on concerns related
to the purposes of an inventory search does not violate the
Fourth Amendment." Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct.
1632, 1635, 109 L. Ed. 2d 1 (1990). The reasonableness of a
search "depends upon the facts and circumstances of each case."
Cooper v. California, 386 U.S. 58, 59, 87 S. Ct. 788, 790, 17
L. Ed. 2d 730 (1967).
"[T]he exact location of the inventory search is not
critical to effectuating [the purposes justifying such a search]
. . . ." State v. Peagler, 668 N.E.2d 489, 501 (Ohio 1996)
(citing Bertine, 479 U.S. at 372-73, 107 S. Ct. at 741-42).
"Where . . . 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," Girardi v. Commonwealth,
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221 Va. 459, 464, 270 S.E.2d 743, 746 (1980), but the
Constitution does not require it, id. at 463-64, 270 S.E.2d at
746 (noting that inventory searches held valid in various United
States and Virginia Supreme Court cases occurred at place of
impoundment). An inventory search is reasonable under the
Fourth Amendment as long as it is "conducted either
contemporaneously with the impoundment or as soon thereafter as
would be safe, practical, and satisfactory in light of the
objectives for which this exception to the Fourth Amendment
warrant requirement was created." Boyd v. State, 542 So. 2d
1276, 1279 (Ala. 1989); see Illinois v. Lafayette, 462 U.S. 640,
646, 103 S. Ct. 2605, 2609, 77 L. Ed. 2d 65 (1983). A search
which deviates from the standardized procedures authorizing
inventory searches may nevertheless be reasonable if the
deviation "relat[es] to the purposes of the inventory search."
United States v. Lomeli, 76 F.3d 146, 149 (7th Cir. 1996).
The fact that Corporal Steve Layton used a private towing
company to transport appellant's car to the sheriff's department
and conducted the inventory search only after the vehicle had
been transported did not render the search unreasonable under
the Fourth Amendment. A business near the scene of the stop had
recently been vandalized, and Corporal Layton testified he
believed conducting the search at the sheriff's department would
be safer. As in Lomeli, Layton also testified that he would
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have had better lighting at the sheriff's department, permitting
the inference that conducting the search at that location was
more likely to result in an accurate inventory. See id.; see
also United States v. Mays, 982 F.2d 319, 320-22 (8th Cir.
1993). In addition, the policy pursuant to which the towing and
search occurred required sheriff's department dispatchers "to
log a notification on their report whenever a tow service is
requested," thereby recording the identity of the only other
person or company with access to the property while it was in
police custody. Thus, the inventory search Corporal Layton
conducted still substantially served the purposes for which it
was intended: (1) the protection of the owner's property while
it remained in police custody; (2) the protection of the police
against claims or disputes over lost or stolen property; and (3)
the protection of the police from potential danger. Cf.
Bertine, 479 U.S. at 374, 107 S. Ct. at 742 ("[T]he real
question is not what 'could have been achieved,' but whether the
Fourth Amendment requires such steps." (quoting Lafayette, 462
U.S. at 647, 103 S. Ct. at 2610)).
In the absence of a constitutional violation, the fact that
the inventory search actually conducted did not comply precisely
with the sheriff's department's procedures for inventory
searches did not entitle appellant to suppression of the fruits
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of that search. See, e.g., West v. Commonwealth, 16 Va. App.
679, 692, 432 S.E.2d 730, 738 (1993).
Further, the possibility of tampering which occurred while
the vehicle was being towed by a private towing company was
speculative only and did not require exclusion of the contents
of appellant's suitcase from evidence.
When the Commonwealth offers testimony
concerning the physical or chemical
properties of an item in evidence . . . ,
authentication requires proof of the chain
of custody, including "a showing with
reasonable certainty that the item [has] not
been altered, substituted, or contaminated
prior to analysis, in any way that would
affect the results of the analysis."
Reedy v. Commonwealth, 9 Va. App. 386, 387-88, 388 S.E.2d 650,
651 (1990) (quoting Washington v. Commonwealth, 228 Va. 535,
550, 323 S.E.2d 577, 587 (1984)). "Where there is mere
speculation that contamination or tampering could have occurred,
it is not an abuse of discretion to admit the evidence and let
what doubt there may be go to the weight to be given the
evidence." Id. at 391, 388 S.E.2d at 652.
Here, the evidence established with reasonable certainty
who had custody of the vehicle containing appellant's suitcase,
and the cocaine subsequently discovered therein, at all times
after Deputy Trent arrested appellant. Compare id. at 389-92,
388 S.E.2d at 651-53, with Robinson v. Commonwealth, 212 Va.
136, 137-38, 183 S.E.2d 179, 180-81 (1971). Corporal Layton
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remained at the scene after appellant's arrest and was present
at the scene when the tow truck driver took custody of the
vehicle. Although Corporal Layton could not remember whether he
kept the tow truck in sight on the trip to the sheriff's office,
Layton and the tow truck arrived at the sheriff's office within
no more than five to ten minutes of each other, thereby all but
eliminating the chance for accidental contamination of the
contents of the suitcase and also significantly minimizing the
opportunity for intentional tampering while the tow truck was en
route. See State v. Ciesielski, 247 N.E.2d 321, 325 (Ohio Ct.
App. 1964), cited with approval in Reedy, 9 Va. App. at 391, 388
S.E.2d at 652-53. Thus, the trial court did not err in
admitting evidence of the cocaine found in appellant's suitcase.
Appellant remained free to present at trial his argument that
the evidence may have been contaminated or tampered with, but he
chose not to do so.
For these reasons, we hold the trial court properly denied
appellant's motion to suppress, and we affirm appellant's
conviction.
Affirmed.
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