Opinion
Criminal Docket No.: CR16-2669
05-01-2017
Re: Commonwealth of Virginia v. Lamont Stallings
Catherine Paxson, Esquire Office of the Commonwealth's Attorney City of Norfolk 800 East City Hall Avenue, Suite 600 Norfolk, Virginia 23510 Andrew Protogyrou, Esquire London C. Crounse, Esquire Protogyrou & Rigney, P.L.C. 125 St. Paul's Boulevard, Suite 150 Norfolk, Virginia 23510
Catherine Paxson, Esquire
Office of the Commonwealth's Attorney
City of Norfolk
800 East City Hall Avenue, Suite 600
Norfolk, Virginia 23510 Andrew Protogyrou, Esquire
London C. Crounse, Esquire
Protogyrou & Rigney, P.L.C.
125 St. Paul's Boulevard, Suite 150
Norfolk, Virginia 23510 Dear Counsel:
Today the Court rules on the motion filed by Defendant Lamont Stallings ("Stallings") to suppress all evidence stemming from his arrest and the search and seizure of a moped—both of which Stallings claims were unconstitutional. The questions before the Court are as follows: (1) whether information from a confidential informant, combined with corroborating information from a planned narcotics transaction, provided probable cause to arrest Stallings and conduct a search incident to arrest; (2) whether law enforcement had probable cause to search a moped—allegedly owned by Stallings—that was at the location of the planned narcotics transaction; and (3) whether the vehicle exception to the warrant requirement justified a warrantless search of the moped after law enforcement relocated it to the Police Operations Center ("POC").
Because the Court answers all of these questions in the affirmative, Stallings's motion to suppress is DENIED.
Background
On August 22, 2016, the Norfolk Vice and Narcotics Unit arrested an individual for an alleged narcotics offense. (Feb. 27, 2017, Hearing Tr. ("Tr.") 8.) This individual ("Informant") that same day identified his drug dealer, known to Informant as "Little Man," to Investigator L.D. Sapp of the Norfolk Police Department. (Id.) Informant provided Little Man's phone number and stated that Little Man usually drives either a dark colored, four-door automobile or a red moped. (Id. at 10, 16-17.) Investigator Sapp had never before received information from Informant, although another officer told Investigator Sapp that Informant was reliable. (Id. at 9, 23.) Investigator Sapp asked other Vice and Narcotics Unit detectives if any of them knew Little Man's true identity. (Id. at 10, 12.) Investigator Todd Sterling stated that the alias "Little Man" was used by Lamont Stallings. (Id.) Investigator Sapp subsequently retrieved and showed a photograph of Stallings to Informant, who confirmed that the photograph depicted Little Man. (Id. at 12.)
Investigator Sapp testified that he knew that Informant had a criminal record. (Tr. 24.)
Investigator Sapp asked Informant to arrange a narcotics transaction with Little Man. (Id. at 12-13.) Informant telephoned Little Man—with Investigator Sapp listening to the call—and arranged to buy some heroin. (Id. at 13-15.) Little Man instructed Informant to meet him at the Tinee Giant located at 2863 Early Street in Norfolk, and Investigator Sapp drove Informant to the designated location. (Id. at 15-16.) Upon arrival, Informant saw Stallings and promptly identified him as his drug dealer. (Id.at 16-17.) Stallings was standing in front of the Tinee Giant next to a red, Yamaha moped. (Id. at 17-18.) It is not clear whether Stallings was already at the Tinee Giant or if he traveled there after speaking with Informant. (Id. at 28-29.) Investigator Sapp did not witness Stallings possess or sell any controlled substances, nor did he observe Stallings "change hands" with anyone or make any furtive gestures. (Id. at 34.)
According to Investigator Sapp, the moped was parked on the Tinee Giant sidewalk about an "arm's length away" from Stallings. (Id. at 17-18.)
A Narcotics and Vice Unit takedown team arrested Stallings almost immediately after Investigator Sapp and Informant arrived at the Tinee Giant, believing that probable cause existed—specifically, that Stallings was attempting to sell illegal narcotics. (Id. at 20.) Law enforcement searched Stallings incident to arrest; no narcotics or other controlled substances were found on his person. (Id. at 38.) Law enforcement searched accessible areas of the moped, but they could not open the seat compartment. (Id. at 40.) Detective J.A. Gomez testified that while law enforcement searched the moped at the Tinee Giant, Stallings admitted that the moped was his and said, referring to the moped, "[W]hy are you messing with my scooter? Leave my scooter alone. You don't have probable cause to search my scooter." (Id. at 39.) A crowd began to form, obstructing the entrance to the Tinee Giant. (Id. at 56.) A member of the takedown team then took possession of the moped key, picked up the moped, and placed it in the back of Detective Gomez's pick-up truck, whereupon the moped was transported to the POC and parked in an unsecured parking lot. (Id. at 40-41.)
Detective Gomez testified that Stallings's statements regarding the moped were spontaneous and not in response to questions from law enforcement. (Id. at 83-84.)
While traveling to the POC, Detective Gomez "YouTubed the make and model of the [moped] and was able to figure out how to actually open the seat." (Id.) Shortly after arrival at the POC, law enforcement opened the seat and found what turned out to be capsules of heroin and a quantity of crack cocaine. (Id. at 43-44.) The Commonwealth concedes that the search of the moped was not pursuant to an inventory search. A warrant was neither applied for nor obtained by law enforcement to search the moped. (Id. at 60.)
Opening the moped seat required both insertion of the moped key and a combination of actions. (Id. at 41.)
Positions of the Parties
Stallings's Position
Stallings argues that law enforcement unlawfully arrested him and unconstitutionally searched and seized the moped, claiming that law enforcement "had no probable cause, no consent, no exigent circumstance, nor any other exception to the warrant requirement to circumvent the violation of the Fourth Amendment to the Constitution of the United States and Article 1, Section 10 of the Virginia Constitution." (Mot. to Suppress 1.) Stallings therefore asks the Court to suppress, as fruit of the poisonous tree, "any physical or verbal evidence that was unveiled as a result of this constitutional violation." (Id. at 2.)
Stallings asserts that law enforcement arrested him absent probable cause because no illegal activities were observed that would corroborate information gained from "a patently unreliable arrestee." (Def.'s Br. in Supp. of Mot. to Suppress ("Def.'s Br. in Supp.") 9.) He points out that "the reliability of a 'criminal' informer . . . should be established by 'underlying facts or circumstances buttressing the credibility of the informer,'" as opposed to the presumed reliability of a "disinterested citizen." (Id. at 11 (quoting Saunders v. Commonwealth, 218 Va. 294, 298, 237 S.E.2d 150, 153-54 (1977)).) Stallings claims that Informant was unreliable because he was a "self-interested criminal who i) had been arrested the same day; ii) had never before provided reliable information to the lead Investigator; and iii) was actively soliciting a crime for consideration on a crime charged against them by the lead Investigator in this case." (Id.) He argues that "[w]ithout any coat of reliability or any previously consummated drug purchases, but rather the opportunity of potential leniency, the informant in this case provided a [patently unreliable] tip." (Id. at 12 (comparing the reliability of Informant to that in Florida v. J.L., 529 U.S. 266, 272 (2000)).)
Stallings further points out that, upon arrival, law enforcement merely observed him speaking with a black female before seizing and searching him. (Id. at 9.) The officers did not observe him arrive at the Tinee Giant nor did they observe him make any furtive gestures. (Id. at 13.) Stallings contrasts the present facts with those in Robinson v. Commonwealth, where the defendant was observed (1) arriving at the gas station as the informant predicted (2) meeting with an unknown man inside and then leaving the building at different times, and (3) reaching into the unknown man's "driver's side door for ten seconds before leaving." (Id. at 13 (quoting Robinson, 53 Va. App. 732, 741, 675 S.E.2d 206, 211 (2009)).) Stallings also finds significant that law enforcement found neither contraband nor other "indicia of illegal activity" on his person and that he did not make any incriminating statements. (Id. at 9.) According to Stallings, law enforcement failed to sufficiently corroborate Informant's tip with objective facts and therefore unconstitutionally arrested him without a warrant. (Id. at 13.)
Stallings also argues that law enforcement unconstitutionally conducted a warrantless search of the moped, claiming that neither the vehicle exception nor any other exception to the warrant requirement applied, because (1) law enforcement lacked probable cause, (2) Stallings did not have a reduced expectation of privacy in the moped, (3) the moped is not a motor vehicle, (4) the moped was not readily mobile at the time of the search, and (5) no exigency justified the warrantless search. (See generally Def.'s Suppl. Br. in Supp. of Mot. to Suppress ("Def.'s Suppl. Br.").) Stallings also distinguishes a vehicle search pursuant to a traffic stop from the search of a vehicle parked on private property, as the moped apparently was here. (Def.'s Br. in Supp. 16.)
Although Stallings apparently consented to a search of the moped initially, he apparently revoked such consent prior to the search. (Def.'s Br. in Supp. 6.) Stallings also argues that the search of the moped at the POC does not constitute a search incident to arrest, because the vehicle was relocated after Stallings was arrested. (Id. at 14.)
Stallings asserts that law enforcement lacked probable cause to believe the moped contained evidence of a crime because (1) Informant was unreliable, (2) law enforcement did not substantially corroborate Informant's tip, (3) law enforcement expected Stallings to be driving either of two vehicles, (4) the moped was parked on the sidewalk away from Stallings, (5) law enforcement never saw Stallings sitting or riding on the moped, (6) and law enforcement did not find any contraband when they searched the moped at the Tinee Giant. (Id. at 10.)
Stallings also asserts that the moped is not considered a "motor vehicle" under Virginia law. (Def.'s Suppl. Br. 4.) He relies on Section 46.2-100 of the Code of Virginia, which states, in pertinent part, that a "moped shall be deemed not to be a motor vehicle" and "[f]or purposes of Chapter 8 a moped shall be a vehicle while operated on a highway." (Id. at 3-4.)
Stallings further argues that no exigency justified a warrantless search of the moped because the Commonwealth has not shown that anyone else had access to the moped and because law enforcement took the key and relocated the moped "to a location within their exclusive dominion and control"; hence, Stallings claims that law enforcement had no reason to believe "anyone would remove either the car [sic] or its contents," rendering the moped immobile. (Id. at 16.) Stallings also asserts that obtaining a warrant in this case was practicable, given that law enforcement admitted that a magistrate apparently was on duty at the POC. (Id. at 7-8.)
The Commonwealth's Response
The Commonwealth claims that law enforcement had probable cause to search and arrest Stallings. (CW's Resp. to Def.'s Suppl. Br. in Supp. of Mot. to Suppress ("CW's 2d Resp.") 3.) It argues that when weighing a confidential informant's "reliability and basis of knowledge," a totality-of-the-circumstances test is employed to determine whether a confidential informant's tip constitutes probable cause. (Id. (quoting Byrd v. Commonwealth, 57 Va. App. 589, 597, 704 S.E.2d, 597, 601 (2011)).) The Commonwealth asserts that an informant's reliability and knowledge-base are "not to be rigidly exacted in every case" and that "a deficiency in one may be compensated for . . . by a strong showing as to the other." (Id. (quoting Byrd, 57 Va. App. at 597, 704 S.E.2d at 601).)
The Commonwealth argues that the totality of the circumstances suggests that "it was more probable than not at the moment of [Stallings's] arrest that [he] was at the scene to carry through on his promise to sell drugs to [I]nformant" because (1) Informant knew Stallings's nickname, (2) law enforcement knew Stallings by that nickname, (3) Informant identified Stallings from both a photograph and in person (4) Informant knew Stallings's phone number, (5) Informant set up a drug transaction with Stallings via phone while law enforcement listened, (6) Informant knew—and informed law enforcement—that Stallings might be driving a red moped, and (7) law enforcement observed Stallings near a red moped at the appointed time and place of the arranged drug transaction. (Id. at 4.)
The Commonwealth contends that because probable cause existed to search and arrest Stallings for a drug-related offense and no drugs were found on Stallings's person, "it was probable that the drugs would be found in the moped the defendant was driving." (CW's 2d Resp. 3.)
The Commonwealth further asserts that a warrant was not required to search the moped because the vehicle exception to the warrant requirement applies. (CW's Resp. to Def.'s Suppl. Br. in Supp. of Mot. to Suppress ("CW's 3d Resp.") 3.) It maintains that probable cause existed to search the moped, Stallings had a lessened expectation of privacy in the moped, the moped is a "motor vehicle," and the moped was readily mobile. (Commonwealth's Resp. to the Def.'s Mot. to Suppress ("CW's 1st Resp.") 3; CW's 3d Resp. 3-4.)
The Commonwealth claims that the moped is a motor vehicle vis-à-vis the constitutional inquiry at hand, despite Section 46.2-100 of the Code of Virginia, which states that a "moped shall be deemed not to be a motor vehicle." (CW's 3d Resp. 3-4.) The Commonwealth urges the Court to consider the plain language of the statute, which states only that a moped is not a vehicle "for the purposes of this title." (Id.) The Commonwealth also points out that Section 18.2-266 considers mopeds to be motor vehicles "while operated on the public highways of this Commonwealth" for purposes of that section. (Id. at 4 (citation omitted).) The Commonwealth contends that "the General Assembly expressly limited its definition of a motor vehicle to those particular sections of the code . . . [and that] this Court should not extend those definitions to the instant case which addresses a Constitutional exception to the warrant requirement." (Id.)
The Commonwealth further argues that the moped was readily mobile at the time of the search. (Id. at 3.) The relocation of the moped to the POC, the Commonwealth asserts, did not affect the moped's mobility because law enforcement did not store it in a secure location, and the moped could be easily moved "from that location from [sic] a third party with a second key." (Id.)
Lastly, the Commonwealth suggests that, apart from the inherent mobility of a motor vehicle, no further exigency requirement must be satisfied to apply the vehicle exception to the warrant requirement. (Id. at 1-3 (citing, inter alia, Maryland v. Dyson, 527 U.S. 465, 466-67 (1999)).) The Commonwealth highlights Collins v. Commonwealth, which holds that the inherent mobility of a motorcycle justifies entry onto a private driveway to search the vehicle. (Id. at 2 (citing 65 Va. App. 37, 773 S.E.2d 618 (2015), aff'd, 292 Va. 486, 790 S.E.2d 611 (2016)).)
Analysis
Legal Standard
The Fourth Amendment of the United States Constitution protects individuals against unreasonable searches and seizures. U.S. Const. amend. IV ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."). Warrantless searches and seizures consequently "are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586 (1980).
Evidence must be suppressed if it is seized by the government in violation of the Fourth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961). A court shall exclude evidence that was obtained either: (1) as a direct result of an illegal search and seizure; or (2) as a proximate result of an illegal search and seizure. Wong Sun v. United States, 371 U.S. 471, 485-86 (1963).
The burden of persuasion rests on the defendant to prove factual circumstances that give rise to the reasonable expectation of privacy. Testa v. Commonwealth, 55 Va. App. 275, 282 n.3, 685 S.E.2d 213, 216 n.3 (2009). When responding to a motion to suppress, the Commonwealth has the burden of proving admissibility of the seized evidence by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168 (1986). Where a warrantless search is at issue, the Commonwealth also has the burden of establishing an exception to the warrant requirement. Walls v. Commonwealth, 2 Va. App. 639, 645, 347 S.E.2d 175, 178 (1986).
"Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence . . . have no place in the magistrate's decision. While an effort to fix some . . . precise degree of certainty corresponding to 'probable cause' may not be helpful, it is clear that 'only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.'" Illinois v. Gates, 462 U.S. 213, 235 (1983) (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969)) (additional citations omitted). Probable cause is present when, in light of the totality of the circumstances, there is a "fair probability that contraband or evidence of a crime will be found in a particular place" based on an officer's common sense and experience. Gates, 462 U.S. at 238. "[T]he Fourth Amendment accepts [the] risk . . . [that] persons arrested and detained on probable cause . . . may turn out to be innocent." Illinois v. Wardlow, 528 U.S. 119, 126 (2000).
A well-established exception to the warrant requirement is the vehicle or automobile exception. See, e.g., Carroll v. United States, 267 U.S. 132, 149 (1925). A person's reduced expectation of privacy while in a vehicle and a vehicle's inherent mobility justify the exception. California v. Carney, 471 U.S. 386, 391 (1985). "If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more." Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (per curiam) (citing Carney, 471 U.S. at 393). Under the vehicle exception, however, "[o]nly the prior approval of the magistrate is waived; the search otherwise [must be such] as the magistrate could authorize." Id. at 395 (quoting United States v. Ross, 456 U.S. 798, 823 (1982) (alteration in original)).
Discussion
The Court has considered the pleadings, oral argument at the February 27, 2017, hearing (the "Hearing"), and applicable authorities. The Court now rules on the issues before it.
Stallings seeks to suppress all evidence stemming from his arrest and the search and seizure of the moped based on the following allegations: (1) law enforcement lacked probable cause to arrest and search Stallings because the confidential informant was unreliable; (2) law enforcement lacked probable cause to search the moped because there was no proof that the moped belonged to Stallings, no contraband was found on Stallings's person, the automobile exception to the warrantless search prohibition did not apply, and the moped was located on private property; and (3) law enforcement lacked probable cause to seize the moped because, in addition to a lack of probable cause, there were no exigent circumstances. Considering constitutional requirements—including the fruit of the poisonous tree doctrine—the Commonwealth's failure to satisfy its burden of proof on any one of these allegations would result in Stallings prevailing on his motion. As discussed below, however, the Court finds that the Commonwealth has satisfied the requisite burden of proof on each.
A. Law enforcement had probable cause to arrest Stallings and conduct a search incident to arrest .
Considering the totality of the circumstances, probable cause existed to arrest Stallings and conduct a search of his person incident to his arrest.
"The test of constitutional validity of a warrantless arrest is whether at the moment of arrest the arresting officer had knowledge of sufficient facts and circumstances to warrant a reasonable man in believing that an offense has been committed." Russell v. Commonwealth, 33 Va. App. 604, 609, 535 S.E.2d 699, 702 (2000). An officer may rely on information provided by an informant if there are reasonable grounds to believe that the informant's statements are true. Byrd v. Commonwealth, 50 Va. App. 542, 551, 651 S.E.2d 414, 419 (2007). "When a confidential informant provides the basis for probable cause, there are two considerations that are particularly relevant to [the court's] analysis: (1) the veracity or reliability of the informant and (2) the informant's basis of knowledge." Id. (citing Illinois v. Gates, 462 U.S. 213, 230 (1983)).
Regarding the first consideration, the required veracity or reliability is not predicated on Informant having previously worked with law enforcement or provided reliable information; in fact, Informant need not be known to law enforcement at all. See Boyd v. Commonwealth, 12 Va. App. 179, 187-88, 402 S.E.2d 914, 919-20 (1991) ("Where the informer . . . is anonymous and no other basis exists in the affidavit for considering him honest, the quality and character of the information provided, if detailed, nonetheless may establish that the informer has personal knowledge of the facts about which he has spoken."). It therefore does not matter in the instant case that Investigator Sapp had never worked with Informant before as long as there is evidence that Informant was truthful and reliable.
Informant's criminal history does not render him per se unreliable. See Saunders v. Commonwealth, 218 Va. 294, 298, 237 S.E.2d 150, 153-54 (1977) (stating that only information provided by criminal victims or eyewitnesses are considered per se reliable). Information obtained from underworld figures simply must have some level of corroboration. Id.
Here, Informant was truthful. The information he provided was at least partially verified by another law enforcement officer. After Informant provided the alias "Little Man" to Investigator Sapp, a fellow investigator confirmed it was a known alias of Lamont Stallings. When Investigator Sapp then pulled a photograph of Stallings and showed it to Informant, Informant confirmed that the photograph was of Little Man. Investigator Sapp later drove Informant to the location designated for the drug sale and, upon arrival, Informant promptly identified Stallings as his dealer.
The Court finds that although single-photo line-ups can be unnecessarily suggestive under certain circumstances, here the reliability of Informant's tip and identification outweighs any associated concerns. See Manson v. Brathwaite, 432 U.S. 98, 116 (1977) (finding a single-photo identification reliable despite the inherent problems of the methodology).
Informant also proved to be reliable. Reliability of an informant can be established through his ability to accurately predict future events. See Draper v. United States, 358 U.S. 307, 313 (1959) (finding probable cause existed when an informant predicted where to find the suspect, what the suspect would look like, and what the suspect would be carrying). Here, Informant arranged the drug transaction in Investigator Sapp's presence and accurately predicted that Stallings would be at the designated Tinee Giant at a particular time and that Stallings would arrive in either of two vehicles, one of which was a red moped.
Stallings implies that because he was already at the Tinee Giant when law enforcement arrived, his presence may have been a coincidence. (Def.'s Br. in Supp. 12.) The Court finds, however, that the corroborating evidence—Informant's phone call to Stallings, the prior identification of Stallings by Informant, the identification of Stallings by Informant at the scene, and Stallings's close proximity to the red moped—demonstrates that mere coincidence is unlikely.
Regarding the second consideration, "[t]he basis of an informant's tip must be 'something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation.'" Byrd, 50 Va. App. at 552, 651 S.E.2d at 419 (quoting Spinelli v. United States, 393 U.S. 410, 416 (1969)). Here, the basis of Informant's knowledge is clear: Informant had purchased drugs from Little Man in the past and then arranged a future drug deal with Little Man while in law enforcement's presence. There can be no doubt that the basis for Informant's knowledge went beyond a mere rumor.
In sum, the Court finds that there were reasonable grounds for law enforcement to believe Informant's statements were true and therefore to rely on that information. Probable cause therefore existed to arrest Stallings and conduct a search incident to arrest.
B. Law enforcement had probable cause to search the moped for narcotics .
Considering the totality of the circumstances, probable cause existed to search the moped for narcotics because (1) as discussed supra, law enforcement had probable cause to believe narcotics were at the scene, (2) the conclusion that Stallings owned the moped was reasonable, and (3) logic suggests that when narcotics were not found on Stallings's person, they likely were located within the moped.
Based on the circumstances, the Court finds that law enforcement reasonably believed that Stallings owned the moped. First, Informant's tip indicated that Stallings might be driving a red moped. Second, when law enforcement arrived at the Tinee Giant, Stallings was standing near the moped. Third, according to Stallings's own pleadings, he initially consented to a search of the moped. Lastly, Stallings effectively admitted he owned the moped while it was being searched; law enforcement officers testified that Stallings asked them why they were searching his scooter and that Stallings stated that they did not have probable cause to search his scooter.
Of course, if Stallings was not the owner or in lawful possession of the moped when it was searched, he does not have standing to object to the search or seizure of the moped. Bell v. Commonwealth, 264 Va. 172, 190, 563 S.E.2d 695, 708 (2002) (holding that the defendant had no standing to challenge the search of a car he did not own and was not authorized to have in his possession at the time of the search).
Failing to locate narcotics on Stallings's person, the Court finds that law enforcement had probable cause to believe narcotics were located within the moped. The U.S. Supreme Court in United States v. Ross held that the "scope of a warrantless search . . . is defined by the object of the search and the places in which there is probable cause to believe that it may be found." 456 U.S. 798, 824 (1982). If the narcotics were not on Stallings's person, then it was logical for law enforcement to believe that they were in the moped allegedly owned by and located about an "arm's length away" from Stallings.
The Court notes that although Stallings implied that he had no reduced expectation of privacy in the moped (see Def.'s Suppl. Br. 3), no evidence was presented at the Hearing to support a legitimate expectation of privacy.
Probable cause to search the moped continued even though it was transported to the POC. Law enforcement had exclusive control over the moped from the time it was initially searched at the Tinee Giant until it was further searched at the POC. If probable cause existed to believe narcotics were stored in the seat of the moped and only law enforcement had access to the moped while it was transported, then probable cause existed to believe narcotics were stored in the seat of the moped upon arrival at the POC.
Based on the foregoing, the Court finds that law enforcement had probable cause to search the moped for narcotics, both at the Tinee Giant and at the POC.
C. The vehicle exception to the warrant requirement justified the search and seizure of the moped .
The automobile exception to the warrant requirement justified the search and seizure of the moped because (1) as discussed supra, probable cause existed to search the moped, (2) the moped is a vehicle, and (3) the moped was mobile at the time it was initially searched.
As an initial matter, the Court holds that the moped is a vehicle for Fourth Amendment purposes. Courts have broadly applied the automobile exception to various modes of transportation. See, e.g., Cal v. Carney, 471 U.S. 386 (1984) (extending the exception to mobile homes); United States v. Hill, 855 F.2d 664 (10th Cir. 1988) (extending the exception to house boats). Additionally, several federal courts have held that the automobile exception applies to mopeds. See, e.g., United States v. Brown, No. 7:15CR00074, 2016 U.S. Dist. LEXIS 19433, at *4-8 (W.D. Va. Feb. 18, 2016); United States v. Catlett, No. 5:09-122, 2010 U.S. Dist. LEXIS 39071, at *7 (E.D. Ky. Apr. 21, 2010). The Virginia Court of Appeals also has held that the automobile exception applies to scooters. Harris v. Commonwealth, 2016 Va. App. LEXIS 172, at *12-13 (May 24, 2016). In light of the definitional differences between Sections 46.2-100 and 18.2-266 of the Code of Virginia, the Court finds that any Virginia statutory provision defining a moped vis-à-vis a motor vehicle is limited to that particular statute; moreover, the Court finds that any such statutory definition is inapplicable to this case, as the issue here involves Stallings's rights under the United States Constitution.
As is appropriate, the Court does not consider unpublished opinions to hold precedential value. The Court instead considers the rationale offered by the courts to the extent that the Court finds it persuasive, which is permissible. See Fairfax Cty. Sch. Bd. v. Rose, 29 Va. App. 32, 39 n.3, 509 S.E.2d 525, 528 (1999) ("[A]lthough an unpublished opinion . . . has no precedential value, . . . a court . . . does not err by considering the rationale in adopting it to the extent it is persuasive.").
See supra note 10.
The Court holds that the moped was mobile for purposes of the vehicle exception to the warrant requirement. The U.S. Supreme Court in California v. Carney held that the mobility element is satisfied when a vehicle is "obviously readily mobile by the turn of an ignition key, if not actually moving." 471 U.S. 386, 393 (1985). Although the moped was never observed in motion, nothing in the record suggests that the moped was not readily mobile when it was seized. As the Court in Carney held, "the overriding societal interests in effective law enforcement justify an immediate search before the vehicle and its occupants become unavailable." Id. Because the vehicle exception to the warrant requirement applied, an immediate search of the moped was justified.
The Court further holds that the vehicle exception applies in this case despite relocation of the moped to the POC. Although law enforcement took time to research how to open the moped's seat to further support the search, the research was done while relocating the moped and the moped search was completed immediately after arriving at an unsecure parking lot at the POC. In Chambers v. Maroney, the U.S. Supreme Court held that a search was constitutional when a car was towed to the police station to be searched, a search of the vehicle would have been permissible, and probable cause and mobility "still obtained at the station house." 399 U.S. 42, 52 (1970). Under the circumstances here, both probable cause and mobility "still obtained" at the POC. Although Stallings argues that the moped was immobile when law enforcement took possession to transport it to the POC and that the vehicle exception therefore does not apply, the Court rejects this argument. See Michigan v. Thomas, 458 U.S. 259, 261 (1982) (holding that it is "clear that the justification to conduct such a warrantless search does not vanish once the car has been immobilized"); see also United States v. Thompson, 545 Fed. Appx. 167, 170-71 (2013) (citing cases) (noting that since Chambers, "the Supreme Court has repeatedly held that the automobile exception does not evaporate once the vehicle has been taken away from the place of the initial stop to the police station."). "[P]olice officers with probable cause to search [a vehicle] at the scene where it was stopped [can] constitutionally do so later at the station house without first obtaining a warrant." Texas v. White, 423 U.S. 67, 68 (1975) (per curium).
Contrary to Stallings's argument, the Court finds that a showing of exigent circumstances is not required under the automobile exception. Stallings relies heavily on Coolidge v. New Hampshire and McCary v. Commonwealth, both of which held that a separate showing of exigent circumstances is required under the vehicle exception. 403 U.S. 443, 463 (1971); 228 Va. 219, 227, 321 S.E.2d 637, 641 (1984). Although the U.S. Supreme Court has never explicitly overruled Coolidge, twenty-eight years later it decided Maryland v. Dyson, which explicitly rejected an exigency requirement, and the issue apparently has not since been addressed by the Court. 527 U.S. 465, 466-67 (1999) (per curiam) ("The 'automobile exception' has no separate exigency requirement."). The Virginia Supreme Court recently followed Dyson's reasoning. See Collins v. Commonwealth, 292 Va. 486, 497-98, 790 S.E.2d 611, 617 (2016) ("The [U.S.] Supreme Court has articulated a simple, bright-line test for the automobile exception: '[i]f a [vehicle] is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment . . . permits police to search the vehicle without more.'" (quoting Dyson, 527 U.S. at 466-67)), petition for cert. filed, Feb. 21, 2017.
A Virginia Court of Appeals case similarly distinguished the McCary opinion as follows:
McCary went on to add this qualification:
An argument is sometimes made that the United States Supreme Court no longer requires exigent circumstances to justify a warrantless
automobile search but instead requires only a showing of probable cause . . . . We need not decide that issue in the present case in view of our holding that there were exigent circumstances.
Commonwealth v. Rogers, No. 2308-02-1, 2003 Va. App. LEXIS 85, at *8 (Feb. 25, 2003).
McCary, 228 Va. at 227, 321 S.E.2d at 641 (citations omitted). In other words, McCary did not hold that the Fourth Amendment imposed a separate exigency requirement only that, if it did, the facts of that case satisfied the requirement. Given the clarity of Dyson on this point, the exigent circumstances dicta in McCary (as well as our cases repeating it, see, e.g., Jackson v. Commonwealth, 22 Va. App. 347, 355, 470 S.E.2d 138, 143 (1996)), have no continuing precedential weight.
See supra note 10. --------
Stallings also relies on United States v. Newbourn, 600 F.2d 452 (4th Cir. 1979), a decision of the U.S. Court of Appeals for the Fourth Circuit; that case is considerably dated, however. The Court therefore holds that any exigency requirement was effectively invalidated by Dyson. Even if not overruled by Dyson, the Newbourn court's view of "exigency" places a heavy emphasis on the inherent mobility of the vehicle:
Here the circumstances were genuinely exigent. The vehicle was parked on a public roadway. Its owner and passenger were close at hand and in possession of the keys. After the appearance of the officers, there is no doubt that the defendants would have fled in the vehicle had they not been arrested and the vehicle seized.Id. at 458. As discussed supra, the moped remained readily mobile at the POC.
Despite Stallings's argument, the Court finds that law enforcement's opportunity to obtain a warrant is irrelevant under the automobile exception to the warrant requirement. According to Dyson, "If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment . . . permits police to search the vehicle without more." 527 U.S. at 467 (emphasis added) (quoting Pennsylvania v. Labron, 518 U.S. 938 (1996) (per curiam)). Stallings presents no support—and the Court is not aware of any—for his position that if law enforcement could readily obtain a warrant, the failure to do so overrides the vehicle exception to the warrant requirement and violates the Constitution. Rather, the U.S. Supreme Court has held that the justification for the automobile exception to the warrant requirement "does not depend upon a reviewing court's assessment of the likelihood in each particular case that the [vehicle] would have been driven away, or that its contents would have been tampered with, during the period required for the police to obtain a warrant." Thomas, 458 U.S. at 261. Given the clear language in Dyson and Thomas, the Court finds that law enforcement was not required to obtain a warrant despite the purported ready access to a magistrate.
Contrary to Stallings's assertion, the Court holds that whether a vehicle is searched on private or public property is irrelevant to the vehicle exception to the warrant requirement. The Virginia Supreme Court "has held that there is no reasonable expectation of privacy in a vehicle parked on private property yet exposed to public view." Collins, 292 Va. at 501-02, 799 S.E.2d at 619 (citing Thims v. Commonwealth, 218 Va. 85, 93, 235 S.E.2d 443, 447 (1977)).
The Court therefore finds that the vehicle exception to the warrant requirement justified the search and seizure of the moped.
Conclusion
The Court finds—based on the totality of the circumstances present in this case—that law enforcement had probable cause to arrest and search Stallings, that probable cause extended to the moped, and that the vehicle exception to the warrant requirement applied to the search and seizure of Stallings's moped.
For the foregoing reasons, the Court DENIES Defendant Lamont Stallings's Motion to Suppress. The Clerk's Office will prepare an Order consistent with this ruling and forward it to the parties. Counsel shall notify the Court of any objections within fourteen days.
Sincerely,
/s/
David W. Lannetti
Circuit Court Judge DWL/bes/ced