                    COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Fitzpatrick and Annunziata
Argued at Roanoke, Virginia


COMMONWEALTH OF VIRGINIA

v.      Record No. 1866-95-3                    OPINION BY
                                       JUDGE JOHANNA L. FITZPATRICK
BILLY WAYNE RODGERS                           MARCH 4, 1996


            FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                   William N. Alexander, II, Judge
            Margaret Ann B. Walker, Assistant Attorney
            General (James S. Gilmore, III, Attorney
            General, on brief), for appellant.

            Charles J. Strauss, for appellee.



     Billy Wayne Rodgers (appellee) was indicted for bribery of a

law enforcement officer in violation of Code § 18.2-438.

Appellee filed a motion to suppress the evidence used in a prior

bribery trial based on the doctrine of collateral estoppel.     The

trial court granted the suppression motion, and the Commonwealth

appeals that ruling pursuant to Code § 19.2-398(2).      Because we

conclude that this appeal is not authorized by Code

§ 19.2-398(2), we do not reach the merits of the Commonwealth's

collateral estoppel argument.

     Appellee was indicted for bribing a law enforcement officer

on September 14, 1994.   In a trial held May 9, 1995, he was tried

and acquitted of the September 14 charge.   Appellee was also

indicted for bribery of a law enforcement officer on September

22, 1994.   Before his trial on the September 22 charge, appellee

filed a motion in limine, asserting that the doctrine of
collateral estoppel barred the use of evidence from his first

trial.   He argued that "any trial . . . on the same charge using

the same evidence [presented at the first bribery trial] would

constitute double jeopardy" and that the Commonwealth should not

be allowed to use any evidence "presented in the former

proceeding to establish the alleged bribery of September 22,

1994."   At the motion hearing held August 9, 1995, the trial

court granted appellee's motion and excluded any evidence of the

events occurring on September 14, 1994, basing its decision on

the doctrine of collateral estoppel.   The Commonwealth appealed

that ruling pursuant to Code § 19.2-398(2).
     In general, "[n]o appeal shall be allowed to the

Commonwealth in a case involving the life or liberty of a

person."   Va. Const. art. VI, § 1.   However, in derogation of

that general prohibition, the Commonwealth is allowed a limited

right of appeal in criminal cases.    Code § 19.2-398 provides, in

pertinent part:
                A petition for appeal from a circuit
           court may be taken by the Commonwealth only
           in felony cases, before a jury is impaneled
           and sworn in a jury trial, or before the
           court begins to hear or receive evidence or
           the first witness is sworn, whichever occurs
           first, in a nonjury trial. The appeal may be
           taken from:

                  *    *    *    *     *    *    *

           (2) An order of a circuit court prohibiting
           the use of certain evidence at trial on the
           grounds such evidence was obtained in
           violation of the provisions of the Fourth,
           Fifth or Sixth Amendments to the Constitution
           of the United States or Article I, Sections


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           8, 10 or 11 of the Constitution of Virginia
           prohibiting illegal searches and seizures and
           protecting rights against self-incrimination,
           provided the Commonwealth certifies the
           evidence is essential to the prosecution.


(Emphasis added.)   Under Code § 19.2-398(2), "[t]he

Commonwealth's right to appeal is limited to suppression orders

granted on the basis of violation of specific provisions of the

United States Constitution and the Virginia Constitution."

Commonwealth v. Brown, 8 Va. App. 41, 43, 378 S.E.2d 623, 624

(1989).   "The constitutional and statutory authority for

Commonwealth appeals is narrowly circumscribed.    It was not

enacted to allow Commonwealth appeals from all allegedly

erroneous pre-trial rulings by the trial court."    Id.

     In interpreting the scope of Code § 19.2-398(2), we have

held that the Commonwealth may not appeal the suppression of

evidence based on the violation of a statute or based on the

violation of a defendant's constitutional due process rights.

See, e.g., Brown, 8 Va. App. at 42-43, 378 S.E.2d at 623-24

(violation of Code § 19.2-83, which limits police authority to

stop, question, and search a suspicious person); Commonwealth v.
Hawkins, 10 Va. App. 41, 42-43, 390 S.E.2d 3, 4 (1990) (violation

of constitutional due process in identification procedure).     In

Hawkins, we stated:
               Reduced to its basic provisions, Code
            § 19.2-398(2) provides that an appeal may
          be taken from: "[a]n order . . . prohibiting
          the use of certain evidence . . . obtained in
          violation of the provisions of [the federal
          constitutional provisions] or [the state
          constitutional provisions] prohibiting



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            illegal searches and seizures and protecting
            rights against self-incrimination . . . ."
            (emphasis added). The issue to be appealed
            must be of constitutional dimension, relating
            to the specific constitutional provisions,
            but its subject matter is defined by the
            emphasized language.


Id. at 44, 390 S.E.2d at 5 (second emphasis added).

     In the instant case, the trial court suppressed the evidence

presented at the first bribery trial on the basis of collateral

estoppel.   As in Hawkins, "[t]here was no finding that the

evidence suppressed resulted from an illegal search or seizure or

from an infringement of the defendant's right against self-

incrimination."    Id. at 43, 390 S.E.2d at 4.   Thus, although the

Commonwealth's use of the evidence at the second trial may have

had double jeopardy implications, this constitutional issue does

not fall within the scope of Code § 19.2-398(2) because it does

not involve "prohibiting illegal searches and seizures [or]

protecting rights against self-incrimination."     Additionally, the

evidence suppressed by the trial court was not obtained in

violation of any of the listed constitutional provisions.

     Because we conclude that this appeal is outside the scope of

Code § 19.2-398(2), we do not reach the merits of this case.

Accordingly, this appeal is dismissed.
                                                 Dismissed.




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