Commonwealth v. Shafer

Re: Commonwealth of Virginia v. Scott Shafer

Case No. MI-2015-792

NINETEENTH JUDICIAL CIRCUIT OF VIRGINIA COUNTY OF FAIRFAX CITY OF FAIRFAX

September 28, 2015

OPINION LETTER

BRUCE D. WHITE, CHIEF JUDGE JANE MARUM ROUSH RANDY I. BELLOWS ROBERT J. SMITH DAVID S. SCHELL JAN L. BRODIE LORRAINE NORDLUND BRETT A. KASSABIAN MICHAEL F. DEVINE JOHN M. TRAN GRACE BURKE CARROLL DANIEL E. ORTIZ PENNEY S. AZCARATE STEPHEN C. SHANNON JUDGES

BARNARD F. JENNINGS THOMAS A. FORTKORT RICHARD J. JAMBORSKY JACK B. STEVENS J. HOWE BROWN F. BRUCE BACH M. LANGHORNE KEITH ARTHUR B. VIEREGG KATHLEEN H. MACKAY ROBERT W. WOOLDRIDGE, JR. MICHAEL P. McWEENY GAYLORD L. FINCH, JR. STANLEY P. KLEIN LESLIE M. ALDEN MARCUS D. WILLIAMS JONATHAN C. THACHER CHARLES J. MAXFIELD DENNIS J. SMITH RETIRED JUDGES

Heidi Meinzer, Esq.

The Law Office of Heidi Meinzer, PLLC

114 North Alfred Street

Alexandria, Virginia 22314

Counsel for Defendant

Lauren E. Hahn, Esq.

Office of the Commonwealth's Attorney

4110 Chain Bridge Road

Fairfax, VA 22030

Counsel for the Commonwealth

Dear Counsel:

This Court heard argument on Defendant's Motion to Suppress on September 18, 2015. This matter comes before the Court involving Va. Code § 3.2-6540, titled "Control of Dangerous Dog; penalties." Two preliminary questions were presented during the hearing on Defendant's Motion prior to the Court addressing the merits of the claim. First, whether the exclusionary rule applies to matters involving Va. Code § 3.2-6540(B), and second, whether an out-of-court identification of a dog should be suppressed. For the reasons set forth below and based on these preliminary questions, Defendant's Motion to Suppress is DENIED without reaching the merits of the case.

I. Factual Background

This matter arises out of a dog bite incident that occurred on or about December 29, 2014, in the County of Fairfax. The Commonwealth alleges the facts as follows. Two boxers ran out the front door of Defendant's residence, 4111 Meadow Hill Lane, Fairfax, Virginia. The door was opened by Defendant's father. The canines ran down the street and knocked over the victim, Mohammad Shah. The canines proceeded to attack and bite the victim on his face, hand, and leg. The victim was then transported to the hospital by ambulance and received 18 stitches, as well as treatment for 3 fractured ribs. The victim stated that both animals bit him while he was on the ground, but it was a black boxer, named "Guinness," that knocked down the victim and bit him on his face and hand. Defendant Scott Shafer is the owner of Guinness. After the incident, two Animal Control officers, Officer Parker and Sgt. Pitts, arrived on the scene to question the witnesses, including Defendant's father, and seized the canines. Based on these aforementioned events, this dangerous dog proceeding determining the status of the dog Guinness now comes before the Court under Va. Code § 3.2-6540(B). This Motion concerns Defendant's request to suppress evidence that may be heard at that proceeding.

II. Argument

Pursuant to the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, Article I, Section 10 of the Virginia Constitution, and Va. Code §§ 19.2-266.2 and 19.2-59, the Defendant seeks to suppress evidence obtained through a warrantless and unlawful entry into Defendant's home, an unlawful seizure of Defendant, an unlawful custodial interrogation of Defendant, and an unreliable and unlawful identification of the canine. Prior to addressing the merits of those claims, the Defendant recognized two preliminary matters at the hearing held on September 18, 2015. The first threshold matter concerned whether or not the exclusionary rule should even apply in the case at bar. The Defendant asserted that the rule was indeed applicable.

Although Defendant eventually conceded that a proceeding brought under Va. Code § 3.2-6540(B) is a civil proceeding, which generally bars application of a the exclusionary rule that is usually found in a criminal context, Defendant drew a parallel to a 1965 decision, One 1958 Plymouth Sedan v. Pennsylvania, involving a civil forfeiture proceeding of a car where the exclusionary rule was applied. 380 U.S. 693, 702 (1965). Using Plymouth as a basis, Defendant claimed he is in jeopardy of losing property rights when subject to a proceeding under Va. Code § 3.2-6540(B) because the proceeding can lead to limitations on ownership of the canine. For this reason, the Defendant argued dangerous dog proceedings are equivalent to that of the civil forfeiture in Plymouth and deserving of the protections afforded by the exclusionary rule because penalties, in the form of restriction of ownership, are present. Defendant also pointed to the title of the statute in question, which includes the word "penalties." VA. CODE ANN. § 3.2-6540.

The second matter preliminarily broached by the Defendant involved an out-of-court identification of the canine at issue. Unlike the identification of inanimate objects, the Defendant argued the identification of a canine is that of an animate object subject to identification like a human. Defendant claimed, unlike a car or weapon, dogs are identified by their breed, color, and other characteristics. Because the dog is the main object of this case, Defendant argued that a single photo is presumptively unreliable and unduly suggestive for out-of-court identification purposes. Defendant suggested that the use of a single photo was per se unduly suggestive because the Virginia Court of Appeals has "found the use of a single photo display to be one of the most suggestive methods of identification." Curtis v. Commonwealth, 11 Va. App. 28, 31 (1990). Furthermore, because of the victim's alleged inability to view the dogs, Defendant contended there was a substantial likelihood of misidentification of the dog.

In response, the Commonwealth disagreed with Defendant's assertions except for the concession that the dangerous dog proceeding is civil in nature and thus not subject to application of the exclusionary rule. The Commonwealth noted three cases where the exclusionary rule was found inapplicable. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1042 (1984), United States v. Janis, 428 U.S. 433, 460 (1976), and County of Henrico v. Ehlers, 237 Va. 594, 604 (1989). Pointing to the primary purpose of the exclusionary rule, to deter unlawful police conduct and serve as a societal safeguard against Fourth Amendment violations, the Commonwealth noted a balancing test outlined in Janis. See Janis, 428 U.S. at 447-54. This test weighted the likelihood of deterrence resulting from the exclusion of evidence against the likelihood of the social costs imposed by exclusion. Id. Applying this test, the Court in Janis found that the exclusionary rule should not apply in a federal civil tax assessment proceeding. Id. at 454. Similarly, in Lopez-Mendoza, the Court found that the exclusionary rule should not be applied in federal civil deportation proceedings. Lopez-Mendoza 468 at 1042. Virginia law echoes these principals outlined by the Supreme Court of the United States, and the Commonwealth noted that the Virginia Supreme Court declined to extend the exclusionary rule in a civil case involving an interpleader action. See Ehlers, 237 Va. at 603-604.

Applying the aforementioned case law, the Commonwealth argued that the exclusionary rule does not apply to the civil dangerous dog proceeding before the Court because the statute simply imposes a requirement of conditions of ownership and does not provide any possibility of criminal penalties. See VA. CODE ANN. § 3.2-6540. The Commonwealth asserted that this characteristic of the statute—no threat of criminal penalties—distinguishes the proceeding from that of civil forfeiture proceedings where the exclusionary rule may apply. See One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965).

Concerning the out-of-court identification, the Commonwealth argued that the constitutional protections applicable to a criminal defendant in a criminal prosecution, namely, due process, should not apply to the animal in a dangerous dog proceeding. The Commonwealth contended that there is a lack of case law on out-of-court identification of an animal because an animal is a piece of property that is not entitled to constitutional protections. Thus, the Commonwealth claimed there is no controlling authority which holds that the out-of-court identification of a piece of property, in this case a canine, must be suppressed if the identification was unduly suggestive. Because the dog is categorized as a piece of property, the Commonwealth proffered that this is an issue that is more appropriate for trial and that the Court deny both the Defendant's Motions before reaching the merits.

III. Analysis

A. The Civil Nature of the Proceeding and Application of the Exclusionary Rule to Dangerous Dog Proceedings

In addressing whether or not the exclusionary rule applies to dangerous dog proceedings, the Court must first address a key threshold issue about the nature of the proceeding. The underlying question is whether or not a hearing identifying a canine as a dangerous dog, held pursuant to Va. Code § 3.2-6540(B), is civil in nature and not criminal.

Initially, based solely on the pleadings filed, it was unclear what position the Defendant took concerning this question. It was not until the day of the hearing, when the Defendant conceded that the proceedings were civil, that Defendant's position became apparent. Notably, this civil characterization of the proceeding was also asserted by the Commonwealth. This position is correct. However, due to the dearth of case law on the nature of dangerous dog proceedings, it is necessary to confirm this concession made by both parties to provide clarity and an explicative basis for determining the applicability of the exclusionary rule. The categorical determination between civil or criminal truly underpins the Defendant's first preliminary question about whether...