Ceon Maurice Fauntleroy v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Alston and Huff
PUBLISHED
Argued at Chesapeake, Virginia
CEON MAURICE FAUNTLEROY
OPINION BY
v. Record No. 1084-12-1 JUDGE RANDOLPH A. BEALES
JULY 30, 2013
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Randall D. Smith, Judge
Kathleen A. Ortiz, Public Defender (Office of the Public Defender,
on brief), for appellant.
Kathleen B. Martin, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Ceon Maurice Fauntleroy (appellant) appeals the trial court’s pre-trial denial of his
motion to suppress illegal drugs that were seized from his vehicle during an inventory search by
the police. Appellant argues on appeal that his vehicle was not lawfully impounded, and, thus,
he contends that the resulting inventory search of his vehicle violated the Fourth Amendment.
For the following reasons, we find the trial court did not err in denying appellant’s motion to
suppress, and we remand the matter to the trial court for the limited purpose of correcting a
clerical error in the sentencing order.1
1
According to its sentencing order entered on June 11, 2012, appellant was convicted of
(1) felony possession of a Schedule I or Schedule II controlled substance with intent to distribute,
second offense, see Code § 18.2-248; and (2) misdemeanor possession of marijuana with intent
to distribute, see Code § 18.2-248.1. However, according to the trial court’s “Day Two Bench
Trial Order” (entered February 13, 2012) and its “PSR Referral Order” (entered March 19,
2012), the trial court granted appellant’s motion to strike the charge of possession of marijuana
with intent to distribute at the close of the Commonwealth’s case-in-chief – and instead found
that the Commonwealth had established a prima facie case as to the lesser-included offense of
simple possession of marijuana. Furthermore, the March 19, 2012 “PSR Referral Order” plainly
I. BACKGROUND
Under settled principles of appellate review, we view “the evidence in the light most
favorable to the Commonwealth, ‘as we must since it was the prevailing party’” in the trial court.
Beasley v. Commonwealth, 60 Va. App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v.
Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004)). Since the Commonwealth
prevailed below, it is also given “the benefit of all reasonable inferences fairly deducible from
the evidence.” Anderson v. Commonwealth, 279 Va. 85, 90, 688 S.E.2d 605, 607 (2010).
On February 13, 2011, at about 10:00 p.m., City of Chesapeake Police Officers James
Rich, David Chadwick, and B.C. Ring stopped appellant’s 2000 Infinity G35 vehicle after
observing that it did not have an illuminated high-mount brake light. Appellant has never argued
that his vehicle was not required to have a functioning high-mount brake light or that the
initiation of the traffic stop was unlawful in any way.
Officer Rich, whose testimony comprised the entirety of the evidence at the suppression
hearing, testified that appellant stopped his vehicle “in the middle of the roadway right at 20th
Street and D Street.” Appellant was the only occupant. Officer Rich heard appellant tell Officer
Chadwick that he had disabled the high-mount brake light “because it wasn’t working.” As
Officer Chadwick returned to the patrol car “to run [appellant’s] information” in the computer,
Officer Rich observed that the inspection sticker on the windshield of appellant’s vehicle
“appeared like it possibly could have been altered.” Officer Rich testified that the inspection
indicates that the trial court found appellant guilty of “PWID Schedule I or Schedule II
Controlled Substance – 2nd Offense (F)” and “Possession of Marijuana (M).” Thus, the June 11,
2012 sentencing order incorrectly states that appellant was convicted of misdemeanor possession
of marijuana with intent to distribute – rather than misdemeanor simple possession of marijuana.
Accordingly, we remand the matter to the trial court for the sole purpose of correcting the
sentencing order to reflect that appellant was convicted of misdemeanor possession of marijuana.
Appellant does not contest the $250 fine for his possession of marijuana conviction, for which he
was not sentenced to any jail time.
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sticker was “wrinkled,” that its “corners were peeling,” and that it “had all the indications that I
have seen before of inspection stickers that have been taken off of vehicles and put back on”
other vehicles.
Officer Rich further testified that appellant did not have the “pink slip” that is issued
along with a valid inspection sticker decal. It is undisputed for purposes of appeal that, after
Officer Rich made these observations, appellant agreed to step out of the vehicle and gave the
officers permission to enter the vehicle in order to look at the back of the inspection sticker to
confirm that it was authentic and properly issued to appellant’s Infinity vehicle. 2 However,
Officer Ring, who initially tried to read what was written on the back of the inspection sticker,
could not do so because the writing was very faded on that side. Officer Rich testified that, with
Officer Ring “standing outside the windshield, illuminating [it] from the outside,” Officer Rich
was finally able to determine that the inspection sticker had actually been issued to a Mercury
vehicle – not appellant’s Infinity.
Officer Rich testified that, when he told appellant that the inspection sticker had been
issued for another vehicle, appellant admitted, “All right. It’s a hot sticker.” Appellant further
admitted to the officer that he purchased the inspection sticker in Norfolk for $30. At this point,
2
At the suppression hearing, Officer Rich explained the significance of the information
found on the back of an inspection sticker, testifying:
[O]n the back of the Virginia state inspection sticker the only
information that’s on that sticker is supposed to be the information
for the vehicle you are in. In other words, on the back it should
have the vehicle’s make, model, and VIN number all on the sticker
itself. If you alter or change, take that sticker off in any way,
you’re actually supposed to void that sticker. It’s not sufficient for
any other vehicles in the state of Virginia or anywhere. So if you
go into the vehicle and look at the back of that sticker, you should
be able to read the vehicle information that you’re in and the VIN
number for the vehicle that it’s on.
(Emphasis added).
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Officer Rich decided to call a tow truck to take the vehicle from the scene and to conduct an
inventory search of the vehicle prior to its towing. Officer Rich was never asked at the
suppression hearing whether the police department had a policy for determining when vehicles
should be impounded. He did testify that the inventory search of appellant’s vehicle occurred in
accordance with the police department’s standard procedure. During the inventory search, illegal
drugs were found in the center console of appellant’s vehicle, and, thereafter, illegal drugs were
discovered in the vehicle’s trunk as well.
On cross-examination, Officer Rich testified that he would have simply issued a
summons to appellant and released appellant with the vehicle if the only problem with
appellant’s vehicle had been the failure to have an illuminated high-mount rear brake light.
However, Officer Rich made clear on cross-examination that appellant’s possession of an
inspection sticker that had been issued for another vehicle significantly changed the situation –
especially given the officer’s understanding that such conduct is a Class 1 misdemeanor offense.3
Officer Rich indicated that there was some discussion among the officers at the scene concerning
3
Code § 46.2-1172 states:
No person shall remove any inspection sticker or any paper issued
by the Superintendent in connection with vehicle safety inspections
from the custody of any person to whom the same has been issued
by or under the authority of the Superintendent of State Police.
Nor shall any person have any such sticker or paper in his
possession or use otherwise than as authorized by the
Superintendent. In any case where the Superintendent has
suspended or revoked the designation of any official inspection
station designated by him, such station shall surrender possession
to the Superintendent or his duly authorized representative all
inspection stickers and other forms and papers used in connection
with safety inspection of vehicles on or before the effective date of
such suspension or revocation. Any person violating the
provisions of this section shall be guilty of a Class 1 misdemeanor.
(Emphasis added). Appellant was convicted of this offense in the general district court, and he
withdrew his appeal of that conviction at the suppression hearing in the trial court.
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whether to issue appellant a summons for the inspection sticker offense or to arrest him for that
offense. However, Officer Rich explained during cross-examination that the officers’
determination of how they would charge appellant for the inspection sticker offense did not
affect the status of appellant’s vehicle. During the following exchange with appellant’s counsel,
Officer Rich testified at the suppression hearing:
Q: You could have written him two summonses and let him go,
correct?
A: He would have been free to go, but his car wasn’t. It was in
the middle of the roadway. It was . . . not parked legally on the
side of the road, and it was not drivable from that point, on.
(Emphasis added). While Officer Rich testified that there were other instances in which he
would permit another occupant to drive away in a vehicle – assuming, unlike here, that another
licensed occupant was present – he explained that, “in this case, the vehicle itself could not leave
because of the condition, because of the inspection sticker.” (Emphasis added).
During oral argument on the motion to suppress, appellant’s trial counsel argued that the
police officers should “have cited two summonses and released him to drive away with his car,
because those are traffic summonses, and there [are] no indicia that he was not going to answer
those two summonses at any later time.” (Emphasis added). Thus, appellant’s trial counsel
contended that the police unlawfully “seized his vehicle based on the two traffic citations.”
Denying appellant’s motion to suppress, the trial court explained that the pertinent issue
here was “not a seizure of the defendant, but a seizure of his automobile.” (Emphasis added).
Reviewing the totality of the circumstances presented at the suppression hearing, the trial court
found that it had “not heard anything to say that at that time it was unlawful to seize the vehicle.”
Thus, the trial court found that the inventory search of appellant’s vehicle was lawful, and it
ruled, therefore, that the illegal drugs discovered as a result of the inventory search should not be
suppressed from the trial evidence.
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II. ANALYSIS
On appeal from the denial of a motion to suppress, “we apply an established standard of
review.” Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002). “[I]n
considering a trial court’s ruling on a suppression motion, we view the evidence in the light most
favorable to the prevailing party below, the Commonwealth in this instance,” and this Court’s
“review of the record includes evidence adduced at both the trial and the suppression hearing.”
Greene v. Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138, 139 (1994) (internal quotation
marks, alterations, and citations omitted).
A defendant’s claim that evidence was seized in violation of the
Fourth Amendment presents a mixed question of law and fact that
we review de novo on appeal. In making such a determination, we
give deference to the factual findings of the trial court and
independently determine whether the manner in which the
evidence was obtained meets the requirements of the Fourth
Amendment. The defendant has the burden to show that the trial
court’s denial of his suppression motion, when the evidence is
considered in the light most favorable to the Commonwealth, was
reversible error.
Murphy, 264 Va. at 573, 570 S.E.2d at 838-39 (citations omitted); see Ornelas v. United States,
517 U.S. 690, 699 (1996) (“[W]e hasten to point out that a reviewing court should take care both
to review findings of historical fact only for clear error and to give due weight to inferences
drawn from those facts by resident judges and local law enforcement officers.”).
A. THE INVENTORY SEARCH EXCEPTION
Appellant’s assignment of error on appeal alleges that the trial court erred in denying his
motion to suppress because he claims that his vehicle “was not lawfully impounded and thus the
resulting inventory search violated” the Fourth Amendment. (Emphasis added). “‘[S]earches
conducted outside the judicial process, without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment – subject only to a few specifically established and
well-delineated exceptions.’” West v. Commonwealth, 54 Va. App. 345, 352, 678 S.E.2d 836,
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839 (2009) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)); see Girardi v.
Commonwealth, 221 Va. 459, 463, 270 S.E.2d 743, 745 (1980). “[O]ne of the recognized
exceptions to the warrant requirement is the inventory search” exception. Girardi, 221 Va. at
463, 270 S.E.2d at 745-46.
The inventory search exception derives from what the United States Supreme Court has
called law enforcement’s “community caretaking functions.” See South Dakota v. Opperman,
428 U.S. 364, 369 (1972). In Reese v. Commonwealth, 220 Va. 1035, 265 S.E.2d 746 (1980),
the Supreme Court of Virginia explained:
This exception to the Fourth Amendment’s warrant requirement is
based upon the need to protect the owner’s property, to protect the
police against claims of lost or stolen property, to protect the police
from physical danger, and to protect the public from dangerous
instrumentalities or substances that may be pilfered from an
impounded vehicle. Because inventories promote such important
interests and, not being investigatory in purpose, do not implicate
the interests which are protected when searches are conditioned
on warrants, inventory searches are not unreasonable within the
meaning of the Fourth Amendment. Contraband or other evidence
of crime discovered in an inventory search may be seized without
warrant and introduced into evidence at trial.
Id. at 1039, 265 S.E.2d at 749 (emphasis added) (internal quotation marks and citation omitted);
see also Servis v. Commonwealth, 6 Va. App. 507, 371 S.E.2d 156 (1988) (discussing
circumstances in which the inventory search exception applies).
B. THE SCOPE OF OUR REVIEW ON APPEAL
In Williams v. Commonwealth, 42 Va. App. 723, 594 S.E.2d 305 (2004), this Court held
that
the police may conduct a warrantless inventory search of a vehicle
provided the following conditions are met: 1) the vehicle must be
lawfully impounded; 2) the impoundment and subsequent search
must be conducted pursuant to standard police procedures; and 3)
the impoundment and subsequent search must not be a pretextual
surrogate for an improper investigatory motive.
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Id. at 731, 594 S.E.2d at 309; see also King v. Commonwealth, 39 Va. App. 306, 310-11, 572
S.E.2d 518, 520 (2002) (same).
In this case, appellant’s trial counsel asserted below only that appellant’s vehicle was
unlawfully “seized.” Given that the inventory search here occurred before the tow truck arrived
to impound appellant’s vehicle, we construe trial counsel’s argument to raise essentially the same
legal issue that is presented in appellant’s assignment of error challenging the lawfulness of the
vehicle’s impoundment. See Girardi, 221 Va. at 464, 270 S.E.2d at 746. However, appellant’s
argument on appeal that the evidence failed to show that his vehicle was impounded pursuant to
standard police procedure was never raised in the trial court.4
During oral argument before this Court, counsel for appellant asserted that the concept of
a lawful impoundment – which is the issue raised in appellant’s assignment of error on appeal –
encompasses all of the considerations set forth in Williams (and King) that are quoted above.5
We disagree. This Court’s opinions in Williams and King both announce several separate and
distinct considerations for addressing whether a lawful inventory search has occurred. See
Williams, 42 Va. App. at 731, 594 S.E.2d at 309; King, 39 Va. App. at 310-11, 572 S.E.2d at
520. Thus, an argument that a vehicle is unlawfully impounded does not, standing alone,
preserve an argument that the vehicle was not impounded pursuant to standard police procedure.
Therefore, appellant’s argument on appeal that his vehicle was not impounded pursuant to
standard police procedure is barred under Rule 5A:18. Furthermore, while appellant requests
that this Court apply the ends of justice exception to Rule 5A:18, that exception is inapplicable
4
In this case, Officer Rich testified that the actual inventory search was conducted
pursuant to standard police procedures, and appellant never challenged this testimony before the
trial court.
5
Appellant’s counsel expressly acknowledged during oral argument before this Court
that the decision to impound and conduct an inventory search of the vehicle was not pretextual.
Thus, this issue is not before this Court on appeal.
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here because appellant has not “affirmatively show[n] that a miscarriage of justice has
occurred’” in this case. Howard v. Commonwealth, 55 Va. App. 417, 425, 686 S.E.2d 537, 541
(2009) (quoting Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997)).
Accordingly, as in Servis, 6 Va. App. at 521, 371 S.E2d at 163, the “crux of the issue in
this case is whether [appellant’s] car was lawfully impounded.” In this case, that question is the
only issue that has been preserved for appeal.
C. THE IMPOUNDING OF APPELLANT’S VEHICLE WAS OBJECTIVELY REASONABLE
“The touchstone of the Fourth Amendment is reasonableness.” Florida v. Jimeno, 500
U.S. 248, 250 (1991) (citation omitted); see Robinson v. Commonwealth, 273 Va. 26, 39, 639
S.E.2d 217, 224 (2007). “Reasonableness, in turn, is measured in objective terms by examining
the totality of the circumstances.” Ohio v. Robinette, 519 U.S. 33, 39 (1996) (emphasis added).
The same reasonableness standard applies here. See Opperman, 428 U.S. at 373. Thus, “[w]e
must consider ‘not whether there was a need for the police to impound [the] vehicle but, rather,
whether the police officer’s decision to impound was reasonable under the circumstances.’”
Williams, 42 Va. App. at 731, 594 S.E.2d at 309 (quoting United States v. Brown, 787 F.2d 929,
932 (4th Cir. 1986)).
Viewing the totality of the circumstances in this case in the light most favorable to the
Commonwealth, as we must because it was the prevailing party below, Officer Rich’s decision to
impound appellant’s vehicle was objectively reasonable. Several circumstances, each mounting
upon the others, support this conclusion.
First, during a lawful traffic stop necessitated by the failure of appellant’s vehicle to have
a functioning high-mount rear brake light, Officer Rich determined that appellant’s vehicle was
displaying a safety inspection sticker that had actually been issued for another vehicle.
Appellant’s possession of that inspection sticker was unauthorized. Second, given Officer Rich’s
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knowledge that unauthorized possession of an inspection sticker is a Class 1 misdemeanor
offense under Code § 46.2-1172, an objectively reasonable officer could certainly infer that
appellant fraudulently possessed the sticker in order to avoid submitting his vehicle to a valid
safety inspection at an authorized inspection station.6 Third, Officer Rich plainly testified that,
due to the vehicle’s unknown inspection status, appellant’s vehicle was deemed “not drivable”
and “could not leave” the scene. It is clear from the transcript of the suppression hearing that the
trial court found the officer’s testimony credible and gave it significant weight, as the trial court
was entitled to do. Fourth, given Officer Rich’s testimony that appellant had illegally parked his
vehicle “in the middle of the roadway right at 20th Street and D Street,” the police clearly had
the authority to seize and remove the vehicle from the street so that it would not impede traffic.
See Opperman, 428 U.S. at 369 (“The authority of police to seize and remove from the streets
vehicles impeding traffic or threatening public safety and convenience is beyond challenge.”).
This Court’s decision in Fisher v. Commonwealth, 42 Va. App. 395, 592 S.E.2d 377(2004), is highly instructive on the analysis in this case. There, Fisher’s vehicle did not display
an inspection or rejection sticker on the windshield. After admitting to a police officer that his
vehicle had failed inspection and that he had removed the refusal sticker after receiving several
citations, Fisher produced from his glove compartment several summonses that he had been
given for the rejection sticker. Id. at 399, 592 S.E.2d at 378-39. Holding that the decision to
impound Fisher’s vehicle was reasonable under the totality of the circumstances, this Court
6
Code § 46.2-1157(A) requires the owner of “any motor vehicle . . . operated or parked
on a highway within the Commonwealth” to “submit his vehicle to an inspection of its
mechanism and equipment by an official inspection station, designated for that purpose,” and
that statute also prohibits any such owner from “fail[ing] to submit a motor vehicle . . . to such
inspection or fail[ing] or refus[ing] to correct or have corrected in accordance with the
requirements of this title any mechanical defects found by such inspection to exist.” See Code
§ 46.2-1158 (requiring such inspections “within 12 months of the month of the first inspection
and at least once every 12 months thereafter”). Furthermore, Code § 46.2-1157(C) states, “Each
day during which such motor vehicle . . . is operated or parked on any highway in the
Commonwealth after failure to comply with this law shall constitute a separate offense.”
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stated in Fisher that “the presence of a rejection sticker indicates defective equipment,”
explaining:
“Virginia law requires that all cars registered and operated in
Virginia undergo an annual safety inspection, regardless of the city
or county in which the owner resides. A vehicle bearing a
rejection sticker has expressly been found to have mechanical
defect of such magnitude that the legislature has declared the
vehicle unsafe to operate until the defect is repaired.”
Id. at 402-03, 592 S.E.2d at 380 (emphasis added) (quoting Reel v. Commonwealth, 31 Va. App.
262, 269, 522 S.E.2d 881, 884 (2000)). Thus, Fisher’s “continued use of a defective vehicle
provided a reasonable basis for [the officer] to impound” the vehicle. Id. at 403, 592 S.E.2d at
381.
The reasonable concern of ensuring the safety of Virginia’s motorists, which this Court
addressed in Fisher, was arguably an even graver concern in this case. Although Fisher’s vehicle
had failed its inspection, the evidence indicated that Fisher had at least submitted his vehicle to a
safety inspection. By contrast, nothing in the record in this case would give any indication that
appellant even cared enough about the safety of his fellow motorists to submit his vehicle to an
inspection.7 Moreover, while Officer Rich knew that the high-mount rear brake light on
appellant’s vehicle was not functioning, the officer certainly was not required to believe that
appellant had intentionally (and fraudulently) purchased a “hot” inspection sticker simply to
avoid a safety inspection due to that one, seemingly minor defect.8 As the United States
7
Furthermore, appellant’s fraudulent display of a safety inspection sticker that has been
issued for another vehicle is classified as a more serious offense than Fisher’s removal of the
rejection sticker that had been issued for Fisher’s own vehicle. Compare Code § 46.2-1157
(classifying the unauthorized possession of an inspection sticker as a Class 1 misdemeanor), with
Fisher, 42 Va. App. at 403 n.5, 592 S.E.2d at 380 n.5 (noting that Fisher’s failure to display a
valid inspection sticker was potentially a Class 3 misdemeanor for a first offense).
8
Even if appellant had provided a reason why his vehicle had not been properly and
validly inspected, Officer Rich was not required to accept such an explanation. See Fisher, 42
Va. App. at 403, 592 S.E.2d at 381 (“[Fisher] did not give [the officer] a specific reason for the
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Supreme Court has explained, “[P]ractical people [have] formulated certain commonsense
conclusions about human behavior; jurors as factfinders are permitted to do the same – and so
are law enforcement officers.” United States v. Cortez, 449 U.S. 411, 418 (1981).
Thus, an experienced law enforcement officer (such as Officer Rich) was permitted to
make reasonable inferences from appellant’s unauthorized possession of a vehicle inspection
sticker that was issued for another vehicle. The officer could reasonably believe that appellant’s
vehicle – like Fisher’s vehicle – quite likely had a significant defect that rendered it unsafe to
operate on Virginia’s highways until it was repaired. See Fisher, 42 Va. App. at 402-03, 592
S.E.2d at 380. Similarly, a reasonable officer could infer that appellant simply did not intend to
have the vehicle inspected, given appellant’s fraudulent display of an inspection sticker that had
been issued for another vehicle. Officer Rich reasonably determined that the vehicle – which
was illegally parked in the middle of the road, thereby impeding traffic – could not safely be
released to appellant under the circumstances.
Relying on this Court’s opinions in Williams and King, appellant argues on brief that the
evidence fails to show that his vehicle was impounded due to an objectively reasonable “concern
for the safekeeping of the car.” See Williams, 42 Va. App. at 732, 594 S.E.2d at 310 (holding
that the police reasonably impounded Williams’ vehicle when “the owner of the vehicle could
not be identified and no one was available at the scene to drive the vehicle, which had a broken
window, to another, safer location”); King, 39 Va. App. at 311, 572 S.E.2d at 521 (holding that
the impounding of King’s vehicle was objectively unreasonable because it was based on the
police officer’s “subjective view that he ‘wouldn’t put a vehicle there and just leave it there’”).
rejection, but even if he had, [the officer] was not required to accept it.”). Furthermore, the
record gives no indication that appellant requested to make alternative arrangements for
removing the vehicle, and the police officers were not required to ask appellant if he wished to
have his vehicle moved to another location. Williams, 42 Va. App. at 733-34, 594 S.E.2d at
310-11.
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We disagree with appellant’s argument because it overlooks this Court’s decision in Servis, 6
Va. App. at 521, 371 S.E.2d at 163, which explains that there is not just one permissible reason
for lawfully impounding a vehicle.
Citing the United States Supreme Court’s decision in Opperman, this Court explained in
Servis that the authority of the police to seize and remove a vehicle that is impeding traffic or
threatening public safety is well established. Id.; see Opperman, 428 U.S. at 368-69. In this
case, Officer Rich properly acted under this well-established authority discussed in Servis –
given Officer Rich’s objectively reasonable belief that appellant’s vehicle was “not drivable”
(due to its display of an invalid inspection sticker) and his undisputed testimony that appellant’s
vehicle was parked in “the middle of the road” impeding traffic. However, the defendant’s
vehicle in Servis was not impeding traffic or threatening public safety when it was impounded.
Servis, 6 Va. App. at 523, 371 S.E.2d at 164. Thus, in Servis, this Court then proceeded to
explain that, under the appropriate circumstances, the police may impound a vehicle – even if the
vehicle is not impeding traffic or threatening public safety – so long as the vehicle is impounded
“solely to protect a defendant’s property when he is arrested away from home.” Id. at 521, 371
S.E.2d at 163; see Cabbler v. Commonwealth, 212 Va. 520, 522-23, 184 S.E.2d 781, 782-83
(1971). The decisions in Williams and King both turn on this alternative rationale for
impounding a vehicle that is discussed in Servis.
However, in this case, appellant’s vehicle was illegally parked in the middle of the road –
not near the curb on the side of the road – and case law plainly holds that a police officer has the
“clear authority” to “seize and remove” a vehicle that is impeding traffic. Servis, 6 Va. App. at
522 n.2, 371 S.E.2d at 164 n.2; see Opperman, 428 U.S. at 369 (explaining that such authority is
“beyond challenge”). Furthermore, as discussed above, the vehicle displayed an inspection
sticker that had been issued for a different vehicle; appellant admitted fraudulently purchasing
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this “hot” inspection sticker rather than submitting his vehicle to a safety inspection; and,
therefore, Officer Rich had an objectively reasonable basis for believing that the vehicle “was
not drivable” at that point. To conclude that Officer Rich somehow lacked authority under the
Fourth Amendment to impound this vehicle (as appellant urges this Court to do) would require
us to disregard binding precedent and basic common sense.
III. CONCLUSION
Officer Rich’s decision to impound appellant’s vehicle was reasonable under the totality
of the circumstances in the record. As appellant’s vehicle was lawfully impounded, the resulting
inventory search of the vehicle (which appellant concedes was conducted pursuant to standard
police procedures) did not violate the Fourth Amendment. Therefore, the trial court did not err
in denying appellant’s motion to suppress the illegal drugs that were discovered as a result of the
inventory search. Accordingly, for the foregoing reasons, we affirm appellant’s conviction for
possession with the intent to distribute a Schedule I or II controlled substance (second offense),
and we remand the matter to the trial court for the sole purpose of correcting the sentencing order
to reflect that appellant was also actually convicted of misdemeanor possession of marijuana –
not misdemeanor possession of marijuana with the intent to distribute.
Affirmed and remanded.
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