                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Humphreys, Huff and AtLee
            Argued at Norfolk, Virginia
PUBLISHED




            ERIC CHERRON JONES
                                                                                OPINION BY
            v.     Record No. 0315-19-1                                  JUDGE RICHARD Y. ATLEE, JR.
                                                                             DECEMBER 27, 2019
            COMMONWEALTH OF VIRGINIA


                             FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                                         Christopher W. Hutton, Judge1

                           David W. Anderson, II, Assistant Public Defender, for appellant.

                           Virginia B. Theisen, Senior Assistant Attorney General (Mark R.
                           Herring, Attorney General, on brief), for appellee.


                   Eric Cherron Jones appeals his conviction of possession of cocaine in violation of Code

            § 18.2-250. On appeal, he argues that the trial court erred by denying his motion to suppress

            because the traffic stop leading to his arrest was “conducted without any reasonable suspicion of

            criminal activity or any violation of traffic laws.” We agree.

                                                     I. BACKGROUND

                   Officer Brown of the Hampton City Police Department observed Jones driving a car in

            Hampton. As Jones approached an intersection, he activated his turn signal and changed lanes,

            crossing over a single, solid white line immediately before the intersection. The officer turned

            on his lights and initiated a traffic stop. A camera in the police car recorded Jones’ lane change.




                   1
                    Judge Hutton presided over the sentencing hearing and sentenced Jones. Judge
            Designate Dean Sword, Jr. ruled on the motion to suppress at issue in this appeal.
        When the officer approached the car, he observed marijuana in plain view inside the car.

He then searched Jones and discovered cocaine in Jones’ pocket. Jones was indicted for

possession of cocaine.

        Before his trial, Jones moved to suppress the cocaine, arguing that crossing the single,

solid white line immediately before the intersection was not a violation of the law and thus the

initial traffic stop was not legal under the Fourth Amendment. Because the lane change did not

violate the law, Jones argued that the officer did not have reasonable suspicion to stop him, and

therefore, the traffic stop violated the Fourth Amendment and the evidence should be suppressed.

        The trial court held a hearing on the motion. The officer who pulled Jones over, Officer

Brown, was a twelve-year veteran of the police force. He testified that, because of his training,

he believed that crossing a single, solid white line immediately before an intersection was a

traffic violation. The Commonwealth acknowledged that it was not, but it argued that the

mistake was a reasonable mistake of law under Heien v. North Carolina, 574 U.S. 54 (2014), and

that suppression was not required.

        The trial court found that “it’s pretty clear that [crossing the solid white line] is not a

violation.” Nonetheless, the trial court determined that the issue was whether the exclusionary

rule applied. It concluded that, under the existing Supreme Court case law, it did not. Therefore,

the trial court denied the motion to suppress.

        The trial court held a second hearing after Jones filed a motion to reconsider. Jones

argued in his motion that under Heien v. North Carolina, the question is whether the mistake of

law was reasonable and submitted that the officer’s mistake here was not because there was no

statutory ambiguity that would justify such a mistake. The trial court ruled that it would not

change its mind or revisit its original ruling.




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       Jones then entered a conditional guilty plea, which allowed him to appeal the denial of

the motion to suppress. The trial court sentenced Jones to a term of five years with three years

suspended. Jones now appeals to this Court.

                                           II. ANALYSIS

       Jones argues that the trial court erred in denying his motion to suppress because the

traffic stop was not supported by reasonable suspicion. We agree.

                  A. Reasonable Mistake of Law under Heien v. North Carolina

       “On appeal of the denial of a motion to suppress, we view the evidence in the light most

favorable to the Commonwealth.” Carlson v. Commonwealth, 69 Va. App. 749, 757 (2019)

(quoting McCracken v. Commonwealth, 39 Va. App. 254, 258 (2002)). “We give deference to

the trial court’s factual findings and review de novo the application of law to those facts.” Id. at

758.

       The Fourth Amendment protects individuals against unreasonable searches and seizures.

U.S. Const. amend. IV. A traffic stop is a “‘seizure’ of the occupants of the vehicle and

therefore must be conducted in accordance with the Fourth Amendment.” Heien, 574 U.S. at 60.

To justify the traffic stop, an officer must have reasonable suspicion that the person stopped

committed a crime or traffic violation. McCain v. Commonwealth, 275 Va. 546, 553 (2008).

       “[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” Kentucky v.

King, 563 U.S. 452, 459 (2011) (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)).

“To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes

on the part of government officials, giving them ‘fair leeway for enforcing the law in the

community’s protection.’” Heien, 574 U.S. at 60-61 (quoting Brinegar v. United States, 338

U.S. 160, 176 (1949)).




                                                -3-
       The United States Supreme Court has determined that “reasonable suspicion can rest on a

mistaken understanding of the scope of a legal prohibition.” Id. at 60. But “[t]he Fourth

Amendment tolerates only reasonable mistakes, and those mistakes—whether of fact or of

law—must be objectively reasonable. We do not examine the subjective understanding of the

particular officer involved.” Id. at 66.

       The test, then, is whether the seizure is supported by a reasonable mistake of law. “A

court tasked with deciding whether an officer’s mistake of law can support a seizure thus faces a

straightforward question of statutory construction. If the statute is genuinely ambiguous, such

that overturning the officer’s judgment requires hard interpretive work, then the officer has made

a reasonable mistake.” Id. at 70 (Kagan, J., concurring).

       In Heien, a police officer pulled over a driver for having only one functioning brake light.

The North Carolina courts concluded that the relevant statutes required only one working brake

light. Id. at 59. The statute referred to “‘a stop lamp,’ suggesting the need for only a single

working brake light.” Id. at 67. But it also referred to “one or more other rear lamps,” and a

separate statute required that vehicles have “all originally equipped rear lamps or the equivalent

in good working order,” which suggested that if a vehicle had multiple “stop lamp[s],” they must

all be functional. Id. at 68. Because of the ambiguity, the Supreme Court held that it was

objectively reasonable for the officer to believe that a single faulty brake light was a violation of

the law, and thus the stop was justified. Id. at 68.

       By contrast, a mistake of law is not reasonable, and will not justify a stop, where the

relevant statutes are not ambiguous. See Commonwealth v. Donald, No. 0376-16-2

(Va. Ct. App. Aug. 23, 2016).2 In Donald, officers detained defendants for jaywalking when



       2
          “Although not binding precedent, unpublished opinions can be cited and considered for
their persuasive value.” Otey v. Commonwealth, 61 Va. App. 346, 350 n.3 (2012).
                                              -4-
they crossed the street where there was no intersection and no crosswalk. Id. at *2. The nearest

intersection was a tenth of a mile away and did not have a crosswalk. The statute was

unambiguous and the plain language provided only two ways to violate the statute: “By

carelessly or maliciously interfering with the orderly passage of vehicles when crossing a

highway, or by failing to cross at an intersection or marked crosswalk where it is possible to do

so.” Id. at *6. Consequently, “it was not reasonable for an officer” to make a stop simply

because the defendants did not cross at an intersection. Id. at *7-8.

       Here, there is no ambiguity or conflict in the statutes that would justify the officer’s

mistake of law. Code § 46.2-804, which deals with the laws governing highways laned for

traffic, does not contain any language that could be reasonably interpreted to prohibit crossing a

single, solid white line. Subsection (5) prohibits crossing “a solid line immediately adjacent to a

broken line,” without reference to the color of the line, if the vehicle is on the side of the solid

line. Subsection (6) prohibits crossing “double traffic lines consisting of two immediately

adjacent solid yellow lines.” Subsection (7) prohibits crossing “double traffic lines consisting of

two immediately adjacent solid white lines.”3 None of these provisions make any reference to a

single, solid white line. Nor do the sections refer to a single solid line without reference to color.

       The Commonwealth argues that the officer’s mistake was reasonable because the statute

refers to a “solid line immediately adjacent to a broken line.” We disagree. The provisions of

the statute are clear and unambiguous and do not mention a single, solid white line. Thus, we

hold that the officer’s mistake was not a reasonable mistake of law under Heien.




       3
        Both parties refer to a driver’s manual from the Virginia Department of Motor Vehicles.
But even that manual simply states that lane changes of the type made by Jones are
“discourage[d].” It does not state that crossing a single, solid white line is prohibited by law.
                                                -5-
                                      B. The Exclusionary Rule

       The trial court relied on Heien to determine that the exclusionary rule did not apply.

Under Heien, however, whether there was a reasonable mistake of law “relates to the antecedent

question of whether it was reasonable for an officer to suspect that the defendant’s conduct was

illegal. If so, there was no violation of the Fourth Amendment in the first place.” Heien, 574

U.S. at 66. In Heien, the Supreme Court did not address whether the exclusionary rule would

have applied because it determined there was no Fourth Amendment violation. Because we

conclude that the mistake of law was not reasonable, we must decide whether to apply the

exclusionary rule.

       The exclusionary rule is “a ‘judicially created remedy’ . . . whose ‘sole purpose is to deter

future Fourth Amendment violations,’” Collins v. Commonwealth, 297 Va. 207, 214 (2019)

(quoting Davis v. United States, 564 U.S. 229, 236-37 (2011)), by “prevent[ing] evidence

obtained in violation of the [F]ourth [A]mendment from being used against an accused,” Knight

v. Commonwealth, 61 Va. App. 297, 310 (2012) (second and third alteration in original)

(quoting Redmond v. Commonwealth, 57 Va. App. 254, 261 (2010)). Because of the great

social cost, however, “[e]xclusion of evidence is a last resort rather than the first impulse.”

Carlson, 69 Va. App. at 759.

       “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that

exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the

price paid by the justice system.” Collins, 297 Va. at 215 (quoting Herring v. United States, 555

U.S. 135, 144 (2009)). The exclusionary rule “seeks ‘to deter deliberate, reckless, or grossly

negligent conduct.’” Id. The test, then, is “‘whether a reasonably well trained officer would

have known that the search [or seizure] was illegal’ in light of ‘all of the circumstances.’” Id.

(quoting Herring, 555 U.S. at 145).

                                                -6-
       Here, the officer’s conduct was sufficient to trigger the exclusionary rule. His mistake of

law was not reasonable because the statute pertaining to the lane markings clearly and

unambiguously did not prohibit crossing a single, solid white line. The statute was not new or

recently amended. Thus, there is no explanation for the officer’s mistake other than inadequate

study of the laws. We conclude that “a reasonably well trained officer” would have known that

the seizure of Jones was illegal. “[A]n officer can gain no Fourth Amendment advantage

through a sloppy study of the laws he is duty-bound to enforce,” Heien, 574 U.S. at 67, and

failure to apply the exclusionary rule in this instance would reward just such a “sloppy study of

the law.” Consequently, we determine that trial court should have applied the exclusionary rule.

                                         III. CONCLUSION

       Because the officer’s mistake of law was not objectively reasonable and his conduct was

sufficiently culpable to justify application of the exclusionary rule, the evidence should have

been suppressed. Accordingly, we conclude that the trial court erred in denying the motion to

suppress, and we reverse its decision and vacate Jones’ conviction. Because this case involved a

conditional guilty plea under Code § 19.2-254, we remand to the trial court to permit Jones to

withdraw his conditional guilty plea and for further proceedings not inconsistent with this

opinion.

                                                                          Reversed and remanded.




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