Commonwealth v. Collins

COMMONWEALTH OF VIRGINIA v. CHARVELLE LOUIS COLLINS

Record No. 1160-15-2

COURT OF APPEALS OF VIRGINIA

DECEMBER 22, 2015

UNPUBLISHED

Present: Chief Judge Huff, Judges Petty and Alston

Argued by teleconference

MEMORANDUM OPINION^* BY JUDGE WILLIAM G. PETTY

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

W. Reilly Marchant, Judge

Craig W. Stallard, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellant.

Dorian Dalton, Senior Assistant Public Defender, for appellee.

Pursuant to Code § 19.2-398, the Commonwealth appeals the decision of the trial court granting Charvelle Louis Collins's motion to suppress evidence. On appeal, the Commonwealth argues that the trial court erred in finding that the officer lacked reasonable suspicion to conduct a traffic stop based on the objectively reasonable belief that the defendant was violating Richmond City Code § 38-40¹ prohibiting excessive noise from vehicles. For the following reasons, we reverse the trial court's decision and remand for proceedings consistent with this opinion.

I.

Because the parties are fully conversant with the record in this case and this memorandum opinion carries no precedential value, we recite only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal.

"In reviewing a trial court's ruling on a suppression motion, we consider the evidence in the light most favorable to the prevailing party below," the defendant in this instance, "granting to it all reasonable inferences fairly deducible therefrom." Askew v. Commonwealth, 38 Va. App. 718, 722, 568 S.E.2d 403, 405 (2002).

II.

The Commonwealth contends that the trial court erred in granting Collins's motion to suppress evidence discovered pursuant to a stop of his vehicle. On appeal from such an order, the Commonwealth has the burden to show that the ruling constituted reversible error. See Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002). "[D]eterminations of reasonable suspicion and probable cause should be reviewed de novo on appeal." Ornelas v. United States, 517 U.S. 690, 699 (1996). "In performing such analysis, 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 v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc).

"[W]hen 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 brief." Logan v. Commonwealth, 19 Va. App. 437, 441, 452 S.E.2d 364, 367 (1994) (en banc) (quoting Zimmerman v. Commonwealth, 234 Va. 609, 611, 363 S.E.2d 708, 709 (1988)). Therefore, "[i]n order to justify an investigatory stop of a vehicle, [an] officer musthave some reasonable, articulable suspicion that the vehicle or its occupants are involved in, or have recently been involved in, some form of criminal activity." Id.

Here, Officer Kiniry testified at the suppression hearing that he stopped Collins based on a suspicion that Collins was violating the Richmond noise ordinance, Richmond City Code § 38-40. In relevant part, the code section provides:

It shall be unlawful for any person to play . . . any electronic device or horn used for the amplification of sound, which is located within a motor vehicle being operated or parked on a public or private street or alley, in such a manner as to be plainly audible to the human ear at a distance of at least 50 feet from the vehicle in which it is located.

Richmond City Code § 38-40(b).

Officer Kiniry testified that he was sitting in his car at an intersection when he heard loud music coming from Collins's car as it was traveling past. Officer Kiniry had his window slightly rolled down, and there was no other traffic or noise around at the time. When Collins's car was two-and-a-half to three car lengths away from him, Officer Kiniry could hear the music very loudly and could hear the car's trunk rattling from the music's volume. The trial court found that the distance of two-and-a-half to three car lengths was somewhere between forty-two and fifty feet. Officer Kiniry testified that he proceeded to follow Collins's car and could still faintly hear the music from a distance of approximately one hundred feet away. Officer Kiniry testified that from one hundred feet away he could not identify the song being played. He then initiated a traffic stop. After the car was stopped, Collins consented to a search of his car, where a firearm was found. Collins was charged with possession of a firearm by a convicted felon, and at trial he moved to suppress the firearm.

After hearing Officer Kiniry's testimony, the trial court made a series of remarks about § 38-40 of the Richmond City Code, observing that it was "almost unenforceable . . . because of the problems with the evidence. And . . . the same problems with finding reasonable suspicion. . . it's so hard to know how it's violated, how could you have reasonable suspicion." The trial court noted that "the crime in this case is so vague that it impacts the reasonable suspicion, because it's reasonable suspicion of what, and it's got to be a crime . . . . And this crime is so vaguely worded." The trial court then granted Collins's motion to suppress

RELIANCE ON A VALIDLY ENACTED STATUTE

On appeal, the Commonwealth argues that the trial court's comments suggesting that the noise ordinance is unconstitutionally vague do not change the reasonable suspicion analysis, because the officer acted in reliance on a validly enacted law.² We agree.

At the outset, we reiterate the well-established principle that "duly enacted laws are presumed constitutional." Freeman v. Commonwealth, 65 Va. App. 407, ___, 778 S.E.2d 519, ___ (2015) (quoting Chianelli v. Commonwealth, 64 Va. App. 632, 642, 770 S.E.2d 778, 783 (2015)); Bowman v. Va. State Entomologist, 128 Va. 351, 375, 105 S.E. 141, 149 (1920) ("Every statute is presumed to have been enacted in accordance with the constitutional requirements until the contrary is made to appear."). Moreover, "a law is 'presumptively valid and remains[s] valid until declared otherwise.'" Freeman, 65 Va. App. at ___, 778 S.E.2d at ___ (quoting Jones v. Commonwealth, 230 Va. 14, 22, 334 S.E.2d 536, 542 (1985)). There is no controlling precedent that § 38-40 is unconstitutional, and therefore it is a valid city ordinance.

Furthermore, as the Commonwealth points out, the trial court's opinion on § 38-40's constitutionality does not impact the outcome of the reasonable suspicion analysis. In Michigan v. DeFillippo, 443 U.S. 31, 40 (1979), the United States Supreme Court held that an arrest madein reliance on a validly enacted law, which has not been declared unconstitutional, was a lawful arrest. The Court held that the exclusionary rule does not apply to suppress evidence obtained from lawful police conduct "because the purpose of the exclusionary rule is to deter unlawful police action. No conceivable purpose of deterrence would be served by suppressing evidence which, at the time it was found on the person of the respondent, was the product of a lawful arrest and a lawful search." DeFillippo, 443 U.S. at 38 n.3; see also Freeman, 65 Va. App. at ___, 778 S.E.2d at ___ (holding recently that evidence from a lawful traffic stop based on a validly enacted statute should not be suppressed). Moreover, "police are charged to enforce laws until and unless they are declared unconstitutional," and "[s]ociety would be ill-served if its police officers took it upon themselves to determine which laws are and which are not constitutionally entitled to enforcement." Freeman, 65 Va. App. at ___, 778 S.E.2d at ___ (alteration in original) (quoting DeFillippo, 443 U.S. at 38).

Here, Officer Kiniry relied on Richmond City Code § 38-40 — a validly enacted and presumptively constitutional ordinance. A violation of § 38-40 is a form of "criminal activity," and the reasonable suspicion of such a violation "justif[ies] an investigatory stop." Logan, 19 Va. App. at 441, 452 S.E.2d at 367. Accordingly, Officer Kiniry was constitutionally entitled to stop Collins if he had reasonable suspicion that Collins was violating § 38-40.

REASONABLE MISTAKE OF LAW

Collins's primary argument is that Officer Kiniry could not have reasonably suspected a violation of § 38-40 because a "faint" sound is not equivalent to the "plainly audible" sound prohibited by the ordinance. This argument focuses solely on Officer Kiniry's testimony that the music was "faint" from a distance of one hundred feet.³ Assuming without deciding that "plainlyaudible" means something louder than "faint," there was still no Fourth Amendment violation here.

In Heien v. North Carolina, 135 S. Ct. 530, 540 (2014), the United States Supreme Court held that an investigatory traffic stop based on a "reasonable mistake of law" does not constitute a Fourth Amendment violation. The Supreme Court had previously held that searches and seizures based on reasonable mistakes of fact can be valid. See Illinois v. Rodriguez, 487 U.S. 177, 183-86 (1990). Extending this principle to reasonable mistakes of law, the Court held:

Reasonable suspicion arises from the combination of an officer's understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law.

Heien, 135 S. Ct. at 536.

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