Sandy Leon Brown v. City of Danville

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Koontz and Willis
Argued at Salem, Virginia
SANDY LEON BROWN
v. Record No. 0263-94-3 MEMORANDUM OPINION * BY
JUDGE JERE M. H. WILLIS, JR.
CITY OF DANVILLE MAY 9, 1995
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
Kenneth M. Covington, Judge Designate
Mark T. Williams (Williams, Stilwell,
Morrison, Williams and Light, on brief), for
appellant.
Robert L. Adams, Jr., Assistant Commonwealth's
Attorney (William H. Fuller, III, Commonwealth's
Attorney, on brief), for appellee.
The Danville City Ordinance, under which Sandy Leon Brown
was prosecuted and convicted, was valid as to the charge against
him. However, because Brown was seized in violation of the
Fourth Amendment, we reverse the judgment of the trial court and
dismiss the charge against him.
I.
Brown was charged with a violation of Danville City
Ordinance § 21-49.3 which prohibited operating a motor vehicle
while under the influence of alcohol. He contends that the
ordinance was invalid because it failed to incorporate the
enhanced penalty provisions contained in the July 1, 1993
amendment to Code § 18.2-270 and thus did not satisfy the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
requirements of Code § 15.1-132. The July 1, 1993 amendment to
Code § 18.2-270 set forth an enhanced penalty in circumstances
not involved in Brown's case. The ordinance in effect at the
time of his arrest conformed with general law insofar as the
circumstances of his case were concerned. He cannot assert
invalidity of an aspect of the ordinance that has no application
to his case. See Sos v. Commonwealth, 14 Va. App. 862, 865, 419
S.E.2d 426, 428 (1992).
II.
When the police stop a motor vehicle and
detain an occupant, this constitutes a
"seizure" of the person for Fourth Amendment
purposes, even though the function of the
stop is limited and the detention is
brief. . . . [A] person may be detained
briefly for questioning by an officer who has
"'a reasonable suspicion, based on objective
facts, that the individual is involved in
criminal activity.'"
The totality of the circumstances must be
considered in determining whether the facts
authorize the police to stop a person. The
detaining officer "'must have a
particularized and objective basis for
suspecting the particular person stopped of
criminal activity.'"
Zimmerman v. Commonwealth, 234 Va. 609, 611-12, 363 S.E.2d 708,
709 (1988) (citations omitted). See also Castaneda v.
Commonwealth, 7 Va. App. 574, 376 S.E.2d 82 (1989) (en banc).
The arresting officer testified that a city employee had
reported that Brown had given him "a problem about where he
wanted to park his vehicle." The officer testified that he
stopped Brown "to see what was wrong." He articulated no
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suspicion of any particular criminal conduct. He described no
circumstances supporting a reasonable suspicion of criminal
conduct. Thus, in stopping Brown's vehicle and detaining Brown,
the officer effected a seizure that violated the Fourth
Amendment.
The judgment of the trial court is reversed and the charge
against Brown is ordered dismissed.
Reversed and dismissed.
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