John Taylor v. Virginia Alcoholic Beverage Control Authority , 70 Va. App. 237 ( 2019 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Chafin and AtLee
Argued at Lexington, Virginia
PUBLISHED
JOHN TAYLOR
OPINION BY
v. Record No. 1593-18-3 JUDGE ROBERT J. HUMPHREYS
APRIL 30, 2019
VIRGINIA ALCOHOLIC BEVERAGE
CONTROL AUTHORITY
FROM THE CIRCUIT COURT OF THE CITY OF STAUNTON
Charles L. Ricketts, III, Judge
Mark Bong for appellant.
Samuel T. Towell, Deputy Attorney General (Mark R. Herring,
Attorney General; Tara Lynn R. Zurawski, Senior Assistant
Attorney General; Gregory C. Fleming, Senior Assistant Attorney
General; Sarah Flynn Robb, Assistant Attorney General, on brief),
for appellee.
On July 24, 2017, the Virginia Alcoholic Beverage Control Authority1 (“ABC” or
“agency”) terminated appellant John Taylor’s (“Taylor”) employment. Prior to his termination,
Taylor served as ABC’s “Region 3 Special Agent in Charge.” On July 24, 2017, however, the
Agency issued Taylor a “Group III” written notice of disciplinary action with removal, i.e.,
termination.2 The Group III written notice alleged that Taylor violated an ABC licensee’s
1
The Virginia Alcoholic Beverage Control Authority is the “successor in interest to the
Department of Alcoholic Beverage Control and the Alcoholic Beverage Control Board.” Code
§ 4.1-101(B).
2
The Virginia Department of Human Resource Management Policies and Procedures
Manual, in Policy 1.60, sets forth certain “standards of conduct” and describes levels of offenses
ranging from the lowest level, “Group I,” to the highest level, “Group III.” According to the
policy, Group III offenses include “acts of misconduct of such a severe nature that a first
occurrence normally should warrant termination.” This includes acts that “endanger others in the
constitutional rights by ordering the seizure of money and other evidence without a search
warrant or written consent. On July 31, 2017, Taylor filed a grievance challenging his
termination and, pursuant to Code § 2.2-3000 et seq., requested a hearing before a hearing officer
appointed by the Virginia Department of Human Resources Management (“DHRM”).
The hearing officer upheld Taylor’s termination. Taylor subsequently requested that the
Office of Equal Employment and Dispute Resolution (“EEDR”) at DHRM conduct an
administrative review of the hearing officer’s decision. Taylor also sought to present newly
discovered evidence. EEDR, however, declined to disturb the hearing officer’s decision. Taylor
then appealed the hearing officer’s decision to the Circuit Court for the City of Staunton (the
“circuit court”), which denied Taylor’s appeal. In doing so, the circuit court held that the hearing
officer’s decision was not contrary to law.
On appeal to this Court, Taylor asserts eleven assignments of error. In his first
assignment of error, Taylor argues that the circuit court erred in affirming the hearing officer’s
decision because his termination was based, at least in part, on violations of ABC policies that
permitted ABC to impermissibly “interpret and define the limits of the Fourth Amendment[.]”
In his second and third assignments of error, Taylor argues that the circuit court erred because
neither ABC nor the licensee’s “employees” or “corporate officers” had standing to assert a
Fourth Amendment violation against Taylor, on behalf of the licensee. In his next seven
assignments of error, Taylor argues that the circuit court erred because he did not violate a
licensee’s Fourth Amendment rights. More specifically, Taylor argues that numerous exceptions
to the Fourth Amendment’s warrant requirement as a prerequisite to a search or seizure applied,
workplace[;] constitute illegal or unethical conduct; neglect of duty; disruption in the workplace;
or other serious violations of policies, procedures, or laws.” Virginia Department of Human
Resource Management Policies and Procedures, Standards of Conduct: Policy 1.60 (Apr. 16,
2008) (emphasis added).
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including the highly regulated industry exception, plain view, exigent circumstances, and
consent. In his final assignment of error, Taylor makes what we assume is essentially a due
process argument. Taylor therein argues that the circuit court erred in upholding his termination
because ABC “failed to follow its own internal policies” and “departed from fair and
unprejudiced discipline.”
I. BACKGROUND
This Court is bound by the hearing officer’s factual findings. In an appeal of this nature,
this Court’s sole role is to consider whether the hearing officer’s decision, based upon those
factual findings, was “consistent with law and policy.” See Osburn v. Va. Dep’t of Alcoholic
Beverage Control, 295 Va. 10, 17 (2018); see also Code § 2.2-3005.1(C).
On October 23, 2017, a hearing regarding Taylor’s termination took place. In a
subsequent decision dated February 12, 2018, the hearing officer upheld Taylor’s Group III
written notice of disciplinary action. In his decision, the hearing officer noted that ABC
employed Taylor as a regional “Special Agent in Charge.” In that capacity, Taylor was assigned
to the ABC Bureau of Law Enforcement Operations, and his responsibilities included the
supervision and oversight of all criminal and administrative investigations conducted by the
special agents assigned to the Region 3 enforcement office. Taylor also served as a liaison with
federal, state, and local officials, as well as command level personnel with other law enforcement
agencies throughout the Commonwealth.
Taylor’s position as a Special Agent in Charge required him to supervise subordinate
supervisors, including the Assistant Special Agent in Charge, Daniel Blye (“ASAC Blye”).
ASAC Blye, in turn, supervised the special agents and all investigations conducted by the region.
During the time period relevant to this case, Special Agents Kevin Weatherholtz and Kevin
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Bilwin (“Special Agent Weatherholtz” and “Special Agent Bilwin”) were special agents
reporting through ASAC Blye to Taylor.
Code § 4.1-105 vests ABC special agents with police powers. On March 24, 2015, the
Governor of Virginia issued Executive Order 40 to improve the law enforcement training of
ABC’s special agents. Executive Order 40 provides, in part, that “[t]he ABC Board shall require
the immediate retraining of all ABC special agents in the areas of use of force, cultural diversity,
effective interaction with youth, and community policing, to be completed no later than
September 1, 2015.”
On June 1, 2015 and June 2, 2015, Taylor participated in training in accordance with
Executive Order 40. Taylor’s training addressed several work-related topics, including
“Upholding Constitutional Rights of Citizens.” In part, the training defined “search” and
“seizure” as each term pertains to government actions regulated by the Fourth Amendment. The
training also defined and properly conceptualized “probable cause” and “reasonable suspicion”
pursuant to the Fourth Amendment.
On January 24, 2017, Taylor spoke with ASAC Blye and Special Agent Weatherholtz
regarding a possible illegal gambling case at the Stephens City Moose Lodge (“Lodge”), a
private, members-only establishment and ABC licensee. Special Agent Bilwin, a member of the
Lodge, had an identification card that allowed him to enter the establishment. The identification
card did not show Special Agent Bilwin’s picture. Taylor subsequently approved a plan to have
Special Agent Weatherholtz enter the Lodge using Special Agent Bilwin’s identification card.
On January 27, 2017, Special Agent Weatherholtz and another ABC agent made an
“internal observation” of the Lodge. Both agents were admitted to the Lodge using Special
Agent Bilwin’s identification card. Special Agent Weatherholtz, posing as Special Agent
Bilwin, signed in the other agent as his guest. Special Agent Weatherholtz and the other agent
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proceeded to drink beer and solicit information from a bartender about the Lodge’s upcoming
Super Bowl party. The agents learned that for $30, they could attend the Super Bowl party, eat,
drink, and participate in a “Super Bowl” board game that would pay out money from a “pool” to
multiple winners. Special Agent Weatherholtz, again using Special Agent Bilwin’s name, paid
the $30 entry fee and received a numbered chip that corresponded to a square on the Super Bowl
board. The bartender and a flyer at the Lodge both claimed that the Super Bowl board game was
legal.
Later that same day, Special Agent Weatherholtz met with Special Agent Bilwin.
Subsequently, on January 31, 2017, Special Agent Bilwin met with Taylor and ASAC Blye to
discuss the Super Bowl board game. Taylor and ASAC Blye concluded that the game was
illegal. Taylor then instructed Special Agent Bilwin to seize the money involved with the game
as evidence. Taylor did not obtain a search warrant or instruct Special Agent Bilwin to do so.
Further, Taylor did not speak with ABC’s internal legal counsel or instruct Special Agent Bilwin
to use ABC’s consent to search form.
On February 1, 2017, Special Agent Bilwin went to the Lodge to discuss the Super Bowl
board game and pool being conducted inside the premises. There, Special Agent Bilwin met
with Larry Dillow (“Dillow”), the Lodge’s ABC manager and bartender. Special Agent Bilwin
explained the reason for his visit and asked to see the Super Bowl board game. Dillow agreed
and showed Special Agent Bilwin the Super Bowl board with squares, “located in plain view
behind the bar.” Special Agent Bilwin then asked about the location of the numbered chips for
purchase, which Dillow retrieved from a back room.
Special Agent Bilwin called Taylor to provide an update. During the phone call, Special
Agent Bilwin told Taylor that he was unsure whether the game was illegal. Taylor then
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informed Special Agent Bilwin that he would “get the name” of someone “at gaming” to call
Special Agent Bilwin.
Approximately twenty minutes later, James Habel (“Habel”), the Lodge’s administrator,
arrived at the Lodge with Gail Teft (“Teft”), the Lodge’s acting secretary. Special Agent Bilwin
showed his credentials to Habel and Teft and explained his reason for the visit. Teft, being
familiar with the Super Bowl board game, provided Special Agent Bilwin with two copies of
invoices for the purchase of the boards, which were purchased from a distributor in another state.
Taylor called Special Agent Bilwin and provided him with the name of Michael Menefee
(“Menefee”), a compliance manager with the Virginia Department of Agriculture and Consumer
Services. Taylor told Special Agent Bilwin that Menefee would call him in thirty minutes.
Taylor also reminded Special Agent Bilwin to seize the money collected by the Lodge if
Menefee concluded that the Super Bowl board game was illegal.
After waiting approximately forty-five minutes, Special Agent Bilwin called Menefee.
During their conversation, Menefee asked Special Agent Bilwin to send him pictures of the
Super Bowl board and numbered chips. Menefee subsequently concluded that the game was
illegal. Special Agent Bilwin explained the Super Bowl board game’s illegality to Habel and
Teft. He then informed Habel and Teft that he “would like to seize the game and proceeds as
evidence.” Habel and Teft complied with Special Agent Bilwin’s request and “volunteered the
money acquired from the game[,]” as well as the Super Bowl board, the remaining numbered
chips, and three unopened Super Bowl boards. Retrieving some of those items, including a
portion of the money collected, required Habel and Teft to open a safe in the Lodge’s social
quarters, as well as a second safe in an upstairs office. Teft organized and counted the money
acquired from the game, which totaled $1,636.
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ABC conducted an internal investigation and, on July 24, 2017, issued Taylor a Group III
written notice with removal. As part of the investigation, an ABC investigator spoke with Habel.
Habel informed the investigator that it was his understanding that Special Agent Bilwin was
asked to confiscate the Super Bowl board, “as well as all cash that was made from the board.”
Habel also stated that he informed Special Agent Bilwin that he would “give him anything and
everything that he needed.” Habel “wanted to cooperate in any way that [he] could.” The ABC
investigator also spoke with Teft, who added that Special Agent Bilwin informed her that “he
was going to have to confiscate the board and the items that went with it and the cash that went
with it.” Teft added that “[t]he way [Special Agent Bilwin] put it basically he didn’t have a
choice . . . this was what he needed to do was to confiscate it all[.]”
Based upon these facts, the hearing officer found that ABC presented sufficient evidence
to show that Taylor failed to follow agency policy, which constituted a “Group II” offense.
Notably, the hearing officer found that multiple “General Orders” defined the parameters of an
investigation of an ABC licensee. General Order 301, for example, governs search warrants and
provides that ABC special agents “shall observe constitutional guidelines when conducting
searches and always remain mindful of their lawful purpose.” Further, General Order 501
governs licensee inspections and provides that ABC special agents “shall not” conduct
inspections when an agent possesses “advanced knowledge/probable cause that the evidence of a
criminal violation is located upon the licensed premises. In this instance, the agent will obtain
and execute a search warrant in accordance with General Order 301, Search Warrants.” Finally,
the hearing officer cited General Order 106, which addresses the issuance of lawful orders. That
order provides that “Bureau supervisors will not knowingly or willfully issue any order in
violation of a law, ordinance, rule or order of the United States, Commonwealth of Virginia, or
the Bureau of Law Enforcement.”
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Mindful of these General Orders, the hearing officer found that Taylor had “advance
knowledge” of a criminal violation occurring on the Lodge’s premises. The hearing officer
subsequently found that, pursuant to General Order 301, Taylor “was obligated . . . to ‘observe
constitutional guidelines when conducting searches.’” Pursuant to General Order 501, Taylor
was also obligated “to refrain from conducting an inspection of the Lodge” and required
to “obtain a search warrant and then execute the search warrant in accordance with General
Order 301.” Thereafter, the hearing officer found that Taylor failed to obtain a required search
warrant before authorizing a search of the Lodge. The hearing officer also found that Taylor
ordered Special Agent Bilwin to seize the money collected by the Lodge for the illegal Super
Bowl board game without obtaining a search warrant first. Therefore, the hearing officer
concluded that Taylor’s order violated the law and ABC policy, which justified the issuance of a
Group II written notice.
The hearing officer subsequently found that, given the circumstances of the case,
Taylor’s misconduct justified ABC’s decision to elevate Taylor’s Group II written notice to a
Group III written notice. The hearing officer explained that, in certain extreme circumstances, a
Group II offense may be elevated to a more severe Group III offense. As stated by the hearing
officer, “[f]ailure to comply with search policies and laws created a unique impact on the Agency
that would justify elevation of a Group II Written Notice to a Group III Written Notice.” Taylor
did not comply with agency policy because he did not obtain or instruct Special Agent Bilwin to
obtain a search warrant before entering the Lodge or seizing its property. Consequently, the
hearing officer found that Special Agent Bilwin’s seizure of the Lodge’s property without a
search warrant describing the items to be seized “was contrary to the Fourth Amendment.”3
3
Taylor did not dispute at oral argument that, according to the hearing officer’s opinion,
his violation of ABC policy warranted a Group II offense.
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The hearing officer also found that no exception to the Fourth Amendment’s prohibition
on warrantless searches and seizures justified Special Agent Bilwin’s seizure of the Lodge’s
property. For example, the hearing officer found that not all the items seized were in plain view,
particularly some of the items retrieved from the Lodge’s safes. Finally, the hearing officer
concluded that Habel and Teft did not consent to the search or seizure. Mindful of these
circumstances and Taylor’s failure to comply with search and seizure policies and laws, the
hearing officer upheld Taylor’s Group III written notice.
Taylor subsequently requested that EEDR administratively review the hearing officer’s
decision. Taylor also sought to present newly discovered evidence in the form of witness
testimony from Special Agent Bilwin, who declined to testify during Taylor’s hearing on the
advice of his legal counsel. On March 12, 2018, EEDR issued a ruling upholding Taylor’s
termination and refusing to disturb the hearing officer’s decision.
After exhausting his administrative appeals, Taylor appealed to the circuit court. In an
opinion dated August 8, 2018, the circuit court found “that the decision of the hearing officer
was not contrary to law, and there was no constitutional provision, statu[t]e, regulation or
judicial decision which the hearing officer’s decision contradicted.” Accordingly, the circuit
court denied Taylor’s appeal.4 This appeal follows.
II. ANALYSIS
A. Standard of Review
“[I]n conjunction with the Virginia Personnel Act, Code § 2.2-2900 et seq[.], the General
Assembly established a system for handling state employee complaints arising in the workplace
by enacting the State Grievance Procedure[.]” Murphy v. Va. Dep’t of State Police, 68 Va. App.
716, 719 (2018) (quoting Pound v. Dep’t of Game & Inland Fisheries, 40 Va. App. 59, 63-64
4
Taylor also filed a motion for reconsideration, which the circuit court denied.
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(2003)); see also Code § 2.2-3000 et seq. Accordingly, we observe that Virginia’s employee
grievance procedure creates a “tripartite review procedure” with the following roles: “(1) the
hearing officer is the finder of fact and final authority on factfinding; (2) DHRM and [E]EDR
determine whether the hearing officer’s ruling is in compliance with personnel policy and
grievance procedure respectively; and (3) the courts determine whether the grievance
determination is ‘contradictory to law.’” Passaro v. Va. Dep’t of State Police, 67 Va. App. 357,
367 (2017) (citing Va. Dep’t of State Police v. Barton, 39 Va. App. 439, 445 (2002)). “Pursuant
to that review procedure, the hearing officer’s findings of fact and the administrative
determinations of compliance with grievance procedure by [E]EDR and personnel policy by
DHRM are not subject to judicial review.” Id. (citing Barton, 39 Va. App. at 445).
“In determining whether a grievance decision was ‘contradictory to law,’ [t]he courts are
limited to ascertaining compliance with constitutional provisions, statutes, regulations, and
judicial decisions.” Murphy, 68 Va. App. at 720 (some internal quotation marks and citations
omitted). Further, it is the appealing party’s burden to “identify [a] constitutional provision,
statute, regulation or judicial decision which the [hearing officer’s] decision contradicted.’”
Osburn, 295 Va. at 17 (quoting Va. Polytechnic Inst. & State Univ. v. Quesenberry, 277 Va. 420,
429 (2009)). “Questions regarding whether a decision is contradictory to law, including the
meaning of any underlying statutes, are reviewed de novo.” Id. (citing Quesenberry, 277 Va. at
429; REVI, LLC v. Chicago Title Ins. Co., 290 Va. 203, 208 (2015)).
B. Taylor’s ABC Policy Violations
As a preliminary matter, this Court must address ABC’s contention that this Court need
not analyze the alleged Fourth Amendment issues because ABC terminated Taylor for both a
violation of the Fourth Amendment as well as multiple violations of ABC policy. ABC argues
that Taylor’s failure to follow ABC policy, standing alone, constituted misconduct justifying
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Taylor’s removal. ABC also notes that these policies—General Orders 301, 501, and 106—
impose stricter requirements upon ABC special agents than the Fourth Amendment. Therefore,
ABC seems to argue that this Court should affirm the circuit court’s judgment based upon
Taylor’s violation of ABC policy alone, because this Court is prohibited from reviewing matters
of agency policy.
ABC’s argument on this matter fails for two reasons. First, the hearing officer initially
determined that Taylor’s failure to follow ABC policy warranted a Group II offense. More
specifically, the hearing officer found that given the circumstances of this case, General Orders
501, 301, and 106 obligated Taylor to obtain a search warrant before ordering a search of the
Lodge and the seizure of its property. Agency policy also mandated that Taylor avoid knowingly
or willfully issuing any order in violation of a law, ordinance, rule or order of the United States,
the Commonwealth, or the Bureau of Law Enforcement. The hearing officer subsequently found
that Taylor’s actions violated ABC policy, which justified the issuance of a Group II written
notice. Only after concluding that Taylor violated ABC policy did the hearing officer address
the elevation of Taylor’s Group II offense to a Group III offense. Given that only Group III
offenses warrant termination pursuant to DHRM’s Procedures Manual, it is clear that Taylor’s
failure to follow ABC policy alone was not sufficient misconduct to justify Taylor’s removal as
ABC claims, and the hearing officer did not treat Taylor’s failure as such.
Second, while ABC correctly notes that agency policy is not subject to judicial review,
ABC’s preliminary argument fails to recognize that the policies referenced in Taylor’s notice of
termination are directly related to, and dependent upon, the Fourth Amendment rights of ABC
applicants and licensees. This is evident in the hearing officer’s opinion where the hearing
officer aptly summarized the interplay between the Fourth Amendment and General Orders 501,
301, and 106 to address the elevation of Taylor’s Group II offense to a Group III offense. Thus,
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to allow the termination of Taylor’s employment to depend upon ABC policy alone would
amount to allowing an agency official to interpret and define the limits of the Fourth
Amendment. Therefore, we must review Taylor’s assignments of error regarding ABC’s policies
and the jurisprudence interpreting the Fourth Amendment.5
C. Taylor’s Standing Arguments
As a second preliminary matter, Taylor oddly argues that the circuit court erred in
upholding his termination because ABC lacked standing to assert a Fourth Amendment violation
on behalf of the Lodge. In support of this argument, Taylor cites a laundry list of criminal cases
to assert that Fourth Amendment rights are personal rights that may not be vicariously asserted.
Taylor also posits that neither the Lodge’s “employees” nor its “corporate officers” had standing
to assert a Fourth Amendment violation against Taylor, on behalf of the Lodge. These
arguments lack merit of any kind.
The issue of standing to seek a constitutional remedy is entirely immaterial to whether
Taylor violated the Lodge’s Fourth Amendment rights in the abstract. Taylor’s argument mixes
apples and oranges. ABC was not attempting to vicariously seek redress for a violation of the
constitutional rights of a third party. This appeal does not concern a criminal case in which a
defendant sought to suppress evidence seized in violation of the Fourth Amendment. Rather, this
case is a civil employment grievance appeal where ABC and the hearing officer determined that
Taylor violated ABC policies, which incorporate by reference ABC licensees’ constitutional
5
In his first assignment of error, Taylor employs this same analysis to argue that the
circuit court erred in upholding Taylor’s termination because ABC incorporated Fourth
Amendment principles in its policies. Such an action, clearly, is not automatically an error of
law as Taylor seems to assert. Rather, this Court must review ABC’s incorporation of the Fourth
Amendment in its policies to ensure that the agency policies comply with established
constitutional guidelines. See Passaro, 67 Va. App. at 367 (emphasizing that, pursuant to
Virginia’s employee grievance procedure, the courts only review issues of law).
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protections provided by the Fourth Amendment. Therefore, Taylor’s standing argument is
inapplicable to the issues before us.
D. Taylor’s Fourth Amendment Arguments
Taylor argues that the circuit court erred in upholding his termination because he did not
violate the Lodge’s Fourth Amendment rights. Taylor supports that argument and attempts to
justify his actions by relying upon numerous exceptions to the Fourth Amendment’s prohibition
on warrantless searches and seizures. These exceptions, as argued by Taylor, include the highly
regulated industry exception, plain view, exigent circumstances, and consent.6
1. The Highly Regulated Industry Exception
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. It also provides that “no Warrants shall issue, but upon probable cause[.]” Id. Based on this
constitutional text, the United States Supreme Court “has repeatedly held that ‘searches
conducted outside the judicial process, without prior approval by [a] judge or [a] magistrate
[judge], are per se unreasonable . . . subject only to a few specifically established and
well-delineated exceptions.’” City of L.A. v. Patel, 135 S. Ct. 2443, 2452 (2015) (citations
omitted).
“‘[T]he Fourth Amendment’s prohibition on unreasonable searches and seizures is
applicable to commercial premises, as well as to private homes.’” Osburn, 295 Va. at 17
(quoting New York v. Burger, 482 U.S. 691, 699 (1987)). “Warrantless searches, in either
6
Taylor also makes a brief “reasonableness” argument on appeal. We recognize that the
United States Supreme Court has long held that the “[t]he ultimate touchstone of the Fourth
Amendment is ‘reasonableness.’” Kentucky v. King, 563 U.S. 452, 459 (2011) (quoting
Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). We also recognize that an action is
“reasonable” under the Fourth Amendment, regardless of the individual police officer’s state of
mind, “‘as long as the circumstances, viewed objectively, justify [the] action.’” Stuart, 547 U.S.
at 403 (quoting Scott v. United States, 436 U.S. 128, 138 (1978) (emphasis in original)).
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context, are presumptively unreasonable.” Id. (citing Patel, 135 S. Ct. at 2452). “There is an
exception, however, for warrantless inspections of businesses engaged in highly regulated
industries.” Id. (citing Patel, 135 S. Ct. at 2454-56; Burger, 482 U.S. at 702). The liquor
industry falls within the highly regulated industry exception to the warrant requirement. See
Colonnade Catering Corp. v. United States, 397 U.S. 72, 76 (1970).
“The highly regulated industry exception is premised upon the concept that ‘[c]ertain
industries have such a history of government oversight that no reasonable expectation of privacy
could exist for a proprietor over the stock of such an enterprise.’” Osburn, 295 Va. at 17-18
(quoting Marshall v. Barlow’s, Inc., 436 U.S. 307, 313 (1978)). To be “reasonable,” however, a
warrantless search or seizure of a highly regulated business must be specifically authorized by
statute, and the parameters of any exception to the search warrant requirement must be found in
the statute. See id. at 18 (citing United States v. Biswell, 406 U.S. 311, 315 (1972)).
In the Commonwealth, Code § 4.1-204(F) grants ABC and its special agents the authority
to search the premises of licensees. That statute states, in pertinent part, that
[ABC] and its special agents shall be allowed free access during
reasonable hours to every place in the Commonwealth and to the
premises of both (i) every wine shipper licensee and beer shipper
licensee and (ii) every delivery permittee wherever located where
alcoholic beverages are manufactured, bottled, stored, offered for
sale or sold, for the purpose of examining and inspecting such
place and all records, invoices and accounts therein.
Code § 4.1-204(F). General Order 501, in turn, interprets and defines the scope of authority
granted by Code § 4.1-204(F). Section IV(A) of that general order defines the scope of such
inspections to include the following:
4. Evidence of violation of state and federal criminal laws which
could constitute grounds for suspension or revocation of a license
pursuant to Virginia Code Section 4.1-225. These will include, but
not be limited to, the following:
....
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c. Gambling violations;
....
5. Agents can inspect the premises where the items outlined above
could reasonably be located. While conducting inspections agents
may seize items of evidence, under the plain view doctrine, of
criminal violations if they have probable cause to believe such
items constitute evidence of a crime. Upon seizing any such item
however, the inspection should cease with the scene secured, and
either a search warrant or consent to search from a person
authorized to provide consent should be obtained.
In short, Code § 4.1-204(F), when read in conjunction with ABC policies, permits
warrantless inspections or searches of any licensee’s premises for the purpose of inspecting
records and accounts. It also permits the seizure of any contraband or evidence of criminal
activity in “plain view,” but no other seizures without a search warrant or consent are authorized
by ABC policies implementing the statute.
Here, Taylor argues that the circuit court erred in upholding his termination because
Special Agent Bilwin’s “entry,” as characterized by Taylor, fell under the highly regulated
industry exception to the Fourth Amendment. Taylor, however, offers only a recitation of the
parameters of the highly regulated industry exception, but no analysis on the matter. Taylor then
proceeds to argue that Special Agent Bilwin’s search and subsequent seizure of the Lodge’s
property was “reasonable” under the circumstances.
Reviewing the ABC policies at issue in conjunction with applicable Fourth Amendment
jurisprudence, we find Taylor’s highly regulated industry exception argument unpersuasive. As
recognized by the hearing officer, “[ABC] did not discipline [Taylor] for an unlawful search.”
(Emphasis added). Rather, Taylor was disciplined for ordering the unlawful seizure of money
and other property belonging to the Lodge. Further, as previously mentioned, this case is not
dependent upon whether Taylor violated an ABC licensee’s constitutional rights in the abstract.
It is instead dependent upon whether Taylor’s actions violated ABC policy, which incorporates
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guidelines pertaining to unlawful searches and seizures that are, in some respects, more
restrictive than constitutional jurisprudence would otherwise permit. See Virginia v. Moore, 553
U.S. 164, 174 (2008) (“A State is free to prefer one search-and-seizure policy among the range
of constitutionally permissible options, but its choice of a more restrictive option does not render
the less restrictive ones unreasonable, and hence unconstitutional.”). Consequently, we cannot
say that either the hearing officer or circuit court’s judgment on the issue was contradictory to
law.
2. The Plain View Exception
Taylor next argues that he did not violate the Lodge’s Fourth Amendment rights when he
ordered Special Agent Bilwin to seize money and other property belonging to the Lodge because
the seized items were in plain view. According to Taylor, Special Agent Bilwin viewed the
Super Bowl board game and associated numbered chips in plain view, “the incriminating
character of the evidence was plainly apparent, and [Special] Agent Bilwin had a lawful right of
access to the objects themselves.” Taylor also argues that probable cause supported the
warrantless seizure.
“The theory of the plain view doctrine is that an individual has no reasonable expectation
of privacy in items that are in plain view.” Daniels v. Commonwealth, 69 Va. App. 422, 435
(2018) (quoting Commonwealth v. Thornton, 24 Va. App. 478, 483 (1997)). The United States
Supreme Court has identified the following three requirements that must be met before the plain
view doctrine applies: “1) that the officer did not violate the Fourth Amendment in arriving at
the place from which the evidence could be plainly viewed, 2) that the incriminating character of
the evidence must be immediately apparent, and 3) that the officer have a lawful right of access
to the object itself.” Id. (quoting Cauls v. Commonwealth, 55 Va. App. 90, 99 (2009)). Only
when these requirements are met can the plain view doctrine justify a warrantless seizure.
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Here, this Court need not individually analyze each requirement of the plain view
doctrine because the hearing officer found as a matter of fact that only some, but not all, of the
items seized by Special Agent Bilwin were in plain view. “The [Super Bowl boards] and chips
were on display for anyone in the Lodge to see.” Importantly, however, the hearing officer
found that “[n]ot all of the money . . . was in plain view. Some of the money was in a cash bag
in a safe in the social quarters and some of the money was in a safe in the office.” With the
record clearly supporting these findings of fact, the hearing officer correctly concluded that
“[b]ecause some of the money was not in plain view, not all of the money could be seized
without a warrant.” Consequently, we cannot say that either the hearing officer or circuit court’s
judgment on the issue was contradictory to law.
3. The Exigent Circumstances Exception
Taylor also argues that “exigent circumstances inside the Lodge” justified Special Agent
Bilwin’s seizure of the money associated with the Super Bowl boards. Similar to his highly
regulated industry exception argument, however, Taylor offers only a brief recitation of the law
of exigent circumstances, but little to no analysis.
“The exigent circumstances exception to the warrant requirement applies when the
exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless
search [or seizure] is objectively reasonable under the Fourth Amendment.” Commonwealth v.
Campbell, 294 Va. 486, 493 (2017) (quoting Kentucky v. King, 563 U.S. 452, 459 (2011) (some
internal quotation marks omitted)), cert. denied sub nom. Campbell v. Virginia, 139 S. Ct. 421
(2018). According to our Supreme Court, the factors relevant to an exigent circumstances
analysis include, but are not limited to, the following:
(1) the degree of urgency involved and the time required to get a
warrant; (2) the officers’ reasonable belief that contraband is about
to be removed or destroyed; (3) the possibility of danger to others,
including police officers left to guard the site; (4) information that
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the possessors of the contraband are aware that the police may be
on their trail; (5) whether the offense is serious, or involves
violence; (6) whether officers reasonably believe the suspects are
armed; (7) whether there is, at the time of entry, a clear showing of
probable cause; (8) whether the officers have strong reason to
believe the suspects are actually present in the premises; (9) the
likelihood of escape if the suspects are not swiftly apprehended;
and (10) the suspects’ recent entry into the premises after hot
pursuit.
Id. at 495 (quoting Verez v. Commonwealth, 230 Va. 405, 410-11 (1985)).
The hearing officer and the circuit court found Taylor’s exigent circumstances argument
unpersuasive as do we. In his decision, the hearing officer explained that “[a]lthough money is
inherently mobile and easily concealed,” no exigency existed independent of Taylor’s instruction
to Special Agent Bilwin to seize the money. The hearing officer added that Taylor “could have
obtained a search warrant to avoid the exigency or “‘frozen the scene’ until he was able to obtain
a search warrant.” We agree.
Nothing in the record supports the existence of any exigency requiring Special Agent
Bilwin’s warrantless seizure of the Lodge’s property. The record reflects that Taylor knew of the
Super Bowl board game’s illegality several days before Special Agent Bilwin’s visit to the
Lodge on February 1, 2017. Taylor also ordered the warrantless seizure of the gambling
proceeds on January 31, 2017, the day before the seizures occurred. Additionally, the record
does not reflect that the evidence related to the Super Bowl board game was in jeopardy of being
lost, destroyed, or removed from the Lodge when Taylor ordered the warrantless seizures. Both
Teft and Habel cooperated with Special Agent Bilwin’s investigation and informed him of their
intent to comply. Finally, this Court cannot conclude that any of the other “Verez” factors,
which generally apply to more serious criminal offenses, apply here. Therefore, we cannot say
that the hearing officer’s conclusion that the exigent circumstances exception did not apply was
contradictory to law.
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4. The Consent Exception
In his final Fourth Amendment argument, Taylor argues that the circuit court erred in
upholding his termination because Special Agent Bilwin obtained consent from Teft and Habel
to seize the money associated with the Super Bowl board game.
“Where consent is freely and voluntarily given, probable cause and a search warrant are
not required.” Limonja v. Commonwealth, 8 Va. App. 532, 540 (1989). “Whether a person has
consented to a warrantless search ‘is a factual question best answered by the . . . factfinder.’”
Osburn, 295 Va. at 20 (quoting Evans v. Commonwealth, 290 Va. 277, 283 n.4 (2015)).
“Pursuant to Virginia’s statutory grievance procedure, findings of fact are to be made by the
hearing officer.” Id.; see also Code § 2.2-3005.1(C).
Here, the hearing officer found that Habel and Teft did not consent to Special Agent
Bilwin’s seizure of the money at issue. That factual finding is supported by the record. There is
no evidence in the record of an affirmative consent to seize the items taken. The hearing officer
explained that Habel and Teft’s expressed desire to cooperate with Special Agent Bilwin did not
mean that they consented to the seizure of the money. The hearing officer also noted that Special
Agent Bilwin did not inform Habel and Teft that they could refuse to turn over the money.
Finally, while ABC created a consent to search form to resolve questions of whether a licensee
consented to a search or seizure, Special Agent Bilwin never presented Habel or Teft with such a
form. It follows that we cannot say that either the hearing officer or circuit court’s judgment on
the issue was contradictory to law.
E. Taylor’s Due Process Argument
In his final assignment of error, Taylor argues that the circuit court erred in upholding his
termination because ABC “failed to follow its own internal policies” and “departed from fair and
unprejudiced discipline.” Taylor also accuses ABC of terminating him in a “retaliatory and
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unlawful” manner, which violated his due process rights. Taylor attempts to absolve himself of
responsibility by asserting that, at the time of the investigation into the Lodge’s activities, he was
not Special Agent Bilwin’s “line supervisor.” Taylor also claims that he was “unaware of many
details of [Special] Agent Bilwin’s investigation at the time [he] was questioned regarding
[Special] Agent Bilwin’s handling of the gambling investigation.” While Taylor maintains that
ABC failed to take these factors into consideration before issuing him a Group III written notice,
he fails to explain why ABC’s decision to terminate his employment was retaliatory and
unlawful.
We find that Taylor’s final assignment of error is without merit. “Under settled
principles, a state employee with a property interest in his employment is entitled to
pre-termination ‘oral or written notice of the charges, an explanation of the employer’s evidence,
and an opportunity for the employee to tell his side of the story.’” Va. Dep’t of Alcoholic
Beverage Control v. Tyson, 63 Va. App. 417, 423-24 (2014) (quoting Gilbert v. Homar, 520 U.S.
924, 929 (1997)). This Court has concluded, however, that “[t]he ‘elaborate statutory grievance
procedures’ required by the State Grievance Procedure ‘more than satisfy the minimal
requirements of due process.’” Id. (quoting Va. Dep’t of Transp. v. Stevens, 53 Va. App. 654,
664 (2009)).
In this case, ABC followed the grievance statutes at all stages of the process. It
ultimately ended with an evidentiary hearing before a hearing officer in which Taylor was
represented by counsel. During the hearing, Taylor had the opportunity to present evidence, call
and examine witnesses, and contest all aspects of the agency’s decision. Taylor then had the
opportunity to request that EEDR conduct an administrative review of the hearing officer’s
decision. Taylor also filed an appeal with the circuit court. The circuit court ultimately found,
however, that the hearing officer’s decision “was not contradictory to law.” It is difficult to
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conceive how this comprehensive process violated Taylor’s due process rights, and Taylor offers
none beyond asserting the severity of the sanction as subjectively prejudicial and unfair.
Therefore, we conclude that the State Grievance Procedure more than satisfied Taylor’s due
process rights.
III. CONCLUSION
For the foregoing reasons, we affirm the circuit court’s judgment that the hearing
officer’s decision was not contradictory to law.
Affirmed.
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