                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, Alston and Senior Judge Willis
UNPUBLISHED


              Argued by teleconference


              COMMONWEALTH OF VIRGINIA
                                                                             MEMORANDUM OPINION * BY
              v.     Record No. 1513-12-1                                    JUDGE ROSSIE D. ALSTON, JR.
                                                                                 JANUARY 22, 2013
              JAMES ELMER HUDGINS


                                 FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
                                               R. Bruce Long, Judge

                               Benjamin H. Katz, Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief) for appellant.

                               Brian W. Decker (Dusewicz, Soberick & Decker, on brief), for
                               appellee.


                     The Commonwealth appeals the trial court’s pretrial order granting a motion to suppress

              property seized as a result of the search and seizure of James Elmer Hudgins’ (defendant) vehicle on

              April 8, 2012. On appeal, the Commonwealth argues that the trial court erred in granting the

              motion to suppress because it ruled that the only justification for a vehicle impoundment under the

              community caretaker exception is “to protect the community’s safety.” For the reasons that follow,

              we find that the trial court erred in granting the motion to suppress and remand the case for a trial

              on the merits if the Commonwealth is so inclined.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                           I. Background 1

       When we review a trial court’s denial of a motion to suppress, “[w]e view the evidence in

a light most favorable to . . . the prevailing party below, and we grant all reasonable inferences

fairly deducible from that evidence.” Commonwealth v. Grimstead, 12 Va. App. 1066, 1067,

407 S.E.2d 47, 48 (1991). “On appeal, we consider the entire record in determining whether the

trial court properly [ruled on an] appellant’s motion to suppress.” Patterson v. Commonwealth,

17 Va. App. 644, 648, 440 S.E.2d 412, 415 (1994) (citing DePriest v. Commonwealth, 4

Va. App. 577, 583, 359 S.E.2d 540, 543 (1987)).

       So viewed, the evidence indicated that on the morning of April 8, 2012, Deputy Thorson

of the Gloucester County Sheriff’s Department and another officer were dispatched to an address

in Gloucester, Virginia, in response to a report of a possible trespasser. While en route, Deputy

Thorson received information from the dispatcher specifically identifying defendant as the

trespasser and that he was “a wanted subject” in Mathews County, Virginia.

       When Deputy Thorson arrived at the address, he saw that there was an “apartment over a

garage” and a trailer behind the residence. Deputy Thorson was unsure if the apartment and

trailer were at the same address, but noted that both shared a driveway.

       Deputy Thorson saw a red and white Dodge pickup truck parked between the apartment

and the trailer and saw defendant asleep inside the truck. Deputy Thorson asked defendant to

identify himself, and defendant gave Deputy Thorson his name. Deputy Thorson noted that

defendant was not a resident of the apartment or trailer “according to his license [and] ID




       1
         As the parties are fully conversant with the record in this case and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.


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return.” Deputy Thorson asked defendant to step out of the truck and detained him while the

dispatcher confirmed the status of the Mathews County warrant.

          A few minutes later, the dispatcher confirmed that defendant was wanted on a warrant

from Mathews County. Accordingly, Deputy Thorson placed defendant under arrest, and

defendant was transported to the Sheriff’s Department. Deputy Thorson did not ask defendant if

he lived on the premises or whether he had permission to park his truck there.

          The officer accompanying Deputy Thorson went to speak with Ashley George, the tenant

of the apartment who had made the original trespassing complaint. George told the officer to

remove the truck and that she did not want it on the property. As a result, the dispatcher called a

tow truck owned by a private towing company. The officers conducted an “inventory search” of

the vehicle before the truck was towed. During the search, the officers found contraband in the

truck.

          The defendant was indicted for possession of cocaine in violation of Code § 18.2-250.

The defendant filed a motion to suppress the contraband seized during the inventory search of

the truck, and the trial court held a hearing on the motion. At the hearing, Deputy Thorson

testified as to the events of April 8, 2012, and the circumstances related to the officers’ search of

defendant’s truck. Specifically, Deputy Thorson testified that the purpose of the search was to

protect the Sheriff’s Department and the owner of the vehicle in the event of claims of loss of

items or damage to the vehicle. Deputy Thorson also testified that defendant’s vehicle was not

being impounded and the only reason the officers called the towing company was because

George requested it. Deputy Thorson confirmed that the truck was parked on private property,

was not affecting the ability of other vehicles to use the driveway, and did not present a traffic

hazard.




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       In addition, Deputy Thorson testified regarding two Gloucester County Sheriff’s

Department policies. Deputy Thorson confirmed that the Department’s “tow policy” states,

“Improperly parked vehicles on private property are a civil dispute between the property owner

and the vehicle owner. Gloucester County Sheriff’s Office has no authority over the dispute

other than to maintain peace and order while the dispute is being resolved between the [a]ffected

parties.” Deputy Thorson also testified that in towing defendant’s car, he was relying upon

Department policy stating that “any person who is arrested for an offense and no one else is on

the scene, the vehicle needs to be removed or towed.”

       Finally, Deputy Thorson testified about the procedure for “inventory searches.” He

stated that the officer conducting the inventory search has a “piece of paper” that he fills out

when a vehicle is removed and an inventory search conducted. On this “piece of paper” the

officer conducting the inventory search notes the contents of the vehicle and any damage to it.

He testified that the inventory search is conducted “to help for civil litigation or damage to the

vehicle that may be either stolen or damage to the vehicle or anything that may occur.” Deputy

Thorson testified that officers conduct inventory searches when a vehicle is being towed to a

private lot or “to an impound.”

       At the conclusion of the hearing, the trial court granted defendant’s motion to suppress.

Relying on South Dakota v. Opperman, 428 U.S. 364 (1976), and Cady v. Dombrowski, 413

U.S. 433 (1973), the trial court found that the sole justification identified by the Supreme Court

in allowing warrantless searches pursuant to the community caretaker exception to the warrant

requirement is “to protect the community’s safety.” The trial court found that there was no

safety concern prompting the police to remove the truck in this case, and, accordingly, granted

the motion to suppress. This appeal followed.




                                                -4-
                                           II. Analysis

       “In the context of the Fourth Amendment, ‘[u]ltimate questions of reasonable suspicion

and probable cause . . . involve questions of both law and fact and are reviewed de novo on

appeal.’” King v. Commonwealth, 39 Va. App. 306, 309, 572 S.E.2d 518, 519 (2002) (quoting

McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc)

(internal quotation marks omitted)). We are “bound by the trial court’s findings of historical fact

unless ‘plainly wrong’ or without evidence to support them and we give due weight to the

inferences drawn from those facts by resident judges and local law enforcement officers.”

McGee, 25 Va. App. at 198, 487 S.E.2d at 261 (citing Ornelas v. United States, 517 U.S. 690,

699 (1996)). “The trial court’s legal conclusion concerning when, or whether, a seizure or search

occurred is reviewed de novo.” King, 39 Va. App. at 309, 572 S.E.2d at 520.

       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. “The Fourth Amendment does not forbid all searches and seizures but only those

that are unreasonable.” Cabbler v. Commonwealth, 212 Va. 520, 522, 184 S.E.2d 781, 782-83

(1971) (citing Terry v. Ohio, 392 U.S. 1, 9 (1968); Kirby v. Commonwealth, 209 Va. 806, 167

S.E.2d 411 (1969)). “Whether a particular search is unreasonable within the meaning of the

Fourth Amendment depends upon the particular facts and circumstances of the case.” Id. at 522,

184 S.E.2d at 783.

       “Searches and seizures conducted without a warrant are presumptively invalid.”

Williams v. Commonwealth, 42 Va. App. 723, 730, 594 S.E.2d 305, 309 (2004) (citing

Minnesota v. Dickerson, 508 U.S. 366, 372 (1993)). However, Virginia jurisprudence

recognizes a few “‘specifically established and well[-]delineated exceptions’ to the warrant




                                               -5-
requirement.” King, 39 Va. App. at 309, 572 S.E.2d at 519 (quoting McNair v. Commonwealth,

31 Va. App. 76, 89, 521 S.E.2d 303, 310 (1999) (en banc) (Benton, J., concurring in part and

dissenting in part) (internal quotations omitted)). Among these exceptions, Virginia recognizes

the “community caretaker” exception. Williams, 42 Va. App. at 730, 594 S.E.2d at 309.

        The community caretaker exception to the warrant requirement is not limited to only

those instances in which public safety is threatened. In Opperman, the Supreme Court applied

the community caretaker exception and recognized the reasonableness and legality of inventories

conducted pursuant to standard police procedures when vehicles are lawfully impounded. 428

U.S. at 375-76. Relying on Supreme Court precedent, this Court has also recognized the

propriety of inventory searches in certain cases. In Williams, this Court held that the community

caretaker exception is grounded in three policy considerations: “1) the protection of the owner’s

property while it remains in police custody, 2) the protection of police against claims or disputes

concerning lost or stolen property, and 3) protection of the public and the police from physical

danger.” 42 Va. App. at 730, 594 S.E.2d at 309 (citing Opperman, 428 U.S. at 373-76; Cady,

413 U.S. at 442-48; Reese v. Commonwealth, 220 Va. 1035, 1039, 265 S.E.2d 746, 749 (1980)).

Therefore, we find that the trial court erred when it determined that the community caretaker

exception was grounded only in the need to protect public safety and so could not apply in this

case.

        Moreover, we conclude that the warrantless inventory search in this case was justified

under the community caretaker exception. Three conditions must be met in order for the

community caretaker exception to justify a warrantless inventory search: “1) the vehicle must be

lawfully impounded; 2) the impoundment and subsequent search must be conducted pursuant to




                                               -6-
standard police procedures; and 3) the impoundment and subsequent search must not be a

pretextual surrogate for an improper investigatory motive.” Id. at 731, 594 S.E.2d at 309.

       Defendant’s truck was lawfully impounded. The Supreme Court of Virginia has

recognized that impoundment of a vehicle is reasonable where the driver is taken into custody

and had no immediate means to safeguard the vehicle or protect his property. 2 See Cabbler, 212

Va. at 522, 184 S.E.2d at 782.

       Defendant argues that it was unnecessary and unlawful to tow his truck because the

police did not verify that defendant did not have a right to be on the premises. We find that even

viewing the evidence in the light most favorable to defendant, the officers’ conclusion that

defendant did not have a right to be on the premises was reasonable. The officers were

responding to a trespassing complaint concerning defendant. Deputy Thorson noted that

defendant was not a resident of the apartment or trailer “according to his license [and] ID

return.” A resident of the premises asked the officers to remove defendant’s truck. In light of

this information, the officers’ conclusion that defendant did not have a right to be on the

premises was reasonable, and the officers were not required to take further action to confirm that

defendant had no right to be on the premises.

       Defendant also argues that it was unnecessary and unlawful to tow his truck because,

unlike other cases in which this Court has upheld inventory searches, his truck did not pose a



       2
          It is irrelevant to the analysis that defendant’s truck was towed by a private towing
company to a private lot or that Deputy Thorson testified that the truck was not being
impounded. The United States Supreme Court and the Supreme Court of Virginia have
recognized the propriety of inventory searches even when a vehicle is towed to a private lot. See
Cady, 413 U.S. at 436, 448 (upholding a warrantless inventory search conducted on a car “towed
to a privately owned garage”); Girardi v. Commonwealth, 221 Va. 459, 464, 270 S.E.2d 743,
746 (1980) (holding that “[w]here . . . the seized vehicle will be towed by a private operator to a
private impoundment lot there is good reason for the police to make an inventory search before
they relinquish even temporary control over the car”).


                                                -7-
traffic hazard and was towed only as a “favor” to George. We disagree. The officers’ decision

to impound the truck was lawful and reasonable, despite the fact that defendant’s truck was not

posing a traffic hazard.

       This Court’s decision in Servis v. Commonwealth, 6 Va. App. 507, 371 S.E.2d 156

(1988), is instructive in this regard. In Servis, this Court upheld the trial court’s denial of a

motion to suppress evidence found during an inventory search of the defendant’s car when the

car was towed from a motel parking lot. Id. at 523, 371 S.E.2d at 164. The defendant, a guest at

the motel, had been arrested, leaving his car parked in the motel parking lot. Id. at 512, 371

S.E.2d at 158. The police asked the motel clerk if the motel would take responsibility for the car.

Id. When she said that it would not, the police had the car towed and conducted an inventory

search. Id. at 513, 371 S.E.2d at 158. This Court found that the officer’s decision to impound

the car was reasonable because it was uncertain whether the defendant, who was under arrest,

would return to the motel before his check-out time to retrieve his car and “the motel clerk asked

that it be removed.” Id. at 523, 371 S.E.2d at 164.

       Similarly, in the instant case, a resident of the premises, George, requested that the police

tow the truck. As discussed above, the officers reasonably concluded that defendant did not have

permission to keep his truck on the premises. Therefore, as in Servis, the officers’ decision to

tow the truck was lawful and reasonable. As a result, we find that the vehicle was lawfully

impounded.

       The impoundment and search were also conducted pursuant to standard police

procedures. Defendant argues that the impoundment was not conducted pursuant to police

department policy because the Sheriff’s Department policy states that the Sheriff’s Department

has no authority over disputes arising from improperly parked vehicles on private property.




                                                 -8-
However, Deputy Thorson testified about two police policies: a policy regarding disputes arising

from vehicles parked on private property and a policy authorizing police to remove or tow a

vehicle when the driver is arrested and there is no one else to take custody of the vehicle.

Deputy Thorson testified that defendant’s truck was towed pursuant to the latter policy. Deputy

Thorson also testified about the Department policy for conducting inventory searches. The

evidence in the record shows that the impoundment and search were both conducted in

accordance with these policies. As a result, we find that the vehicle was impounded and

searched pursuant to standard police procedures.

       Finally, we hold that there was no improper investigatory motive for the impoundment

and search of the vehicle. Defendant does not argue that the impoundment and search were a

pretextual surrogate for an improper investigatory motive, and there is no evidence in the record

before us that the impoundment and search were pretextual.

       For these reasons, we find that the trial court erred in granting defendant’s motion to

suppress. The trial court erroneously held that the community caretaker exception applies only

in situations where public safety is at risk. When properly applied, the community caretaker

exception justified the inventory search of defendant’s truck. Thus, we reverse and remand for a

trial on the merits, if the Commonwealth be so inclined.

                                                                           Reversed and remanded.




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