COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, J udge Annunziata and Senior Judge Willis Argued at Alexandria, Virginia

JAMES HENRY FISHER OPINION BY v. Record Nos. 3309-02-4 and CHI EF JUDGE JOHANNA L. FITZPATRICK 0553-03-4 FEBRUARY 10, 2004
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Benjamin N.A. Kendrick, Judge Paul F. Sheridan, Judge Michael C. Sprano (Lopez, Meleen & Sprano, P.L.C., on brief), for appellant. Michael T. Judge, Assistant Attorn ey General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
James Henry Fisher (appellant) appeals his convictions for posse ssing a firearm while possessing cocaine in violation of Code § 18.2-308.4, and possessing a fire arm while a convicted felon in violation of Code § 18.2-308.2. 1 Appellant contends that the trial court erred in: (1) denying his motion to suppress, because the evidence was seized following an improper impoundment and inventory search of his automobile in violation of the Fourth Amendment, and (2) admitting evidence that appellant and his vehi cle matched an earlier police description of a person who brandished an d placed a shot gun in the trunk of the car. We hold that the impoundment was lawful and the subsequent inventory search was proper and that the trial court did not abuse its

1 Appellant does not appeal hi s conviction for possession of cocaine in violation of Code § 18.2-250, to which he pled guilty.- 2 - discretion in allowing evid ence that appellant was seen putting a shotgun in the tr unk of his car one week earlier. Accordingly, we affi rm the judgment of the trial court.
I. BACKGROUND Under familiar principles of ap pellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. See Juares v. Commonwealth , 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997). So viewed, the evidence establishes that on July 12, 2001 at approximately midnight, Corporal David Avery (Avery) of the Arlington County Poli ce Department saw appellant driving south on South 19th Street. His car matched the descripti on of a car that was the subject of a police “be on the lookout” (BOL) broadcast Avery received a week earlier. The broadcast described a black male with an older model Cadillac who ha d been involved in an altercation two blocks away from appellant’s current location, and who car ried a shotgun in the tr unk of his car. Avery confirmed that appellant’s tags matched those of the car described in the BOL, and saw that appellant had no inspection or rejection sticker on his car. After appellant made an illegal right-hand turn into the park ing lot of Concord Village Apartments, Avery pulled him over. Avery knew that appellant did not live in the apartment complex, which was located on private property and required a parking decal. Avery asked appellant why his car had no inspection or rejection sticker on the windshield. In response, appellant, who appe ared nervous, admitted that his car had been rejected and that he had removed the sticker after he received severa l citations. Appellant reached into the glove box that appeared to be unlocked, and handed Avery four or five summonses he had been issued for the rejection sticker. When a ppellant leaned into the car and returned the summonses to the glove box, he obscured Avery’s view for 20 to 30 seconds.- 3 - Avery told appellant that he could not drive the car because of the reject ion sticker and that he needed to tow the vehicle in accord with Ar lington County Police Department policies. Avery explained that he could not determine the r eason the car was rejected because there was no rejection sticker displayed and he could not visually make that determination: Say it was rejected for a light out or something, I may leave the car or let him park it, but not knowi ng why it was defective, when it could be brakes or whatever, and plus the fact he was still driving it. Even though it had been reject ed, he had taken the rejection sticker off, gotten the ticket[s], continued to drive it; the department’s policy is to to w it, and that’s what I did. When Avery asked appellant for the keys, appe llant gave him the ignition key only. The glove box appeared to be locked at that time. Avery knew from experience that appellant’s automobile model required a second key to open the trunk and glove box. Appellant told Avery that the second key was lost, and Avery became susp icious. He began an inventory search of the vehicle before towing it and found a pill bottle on the dr iver’s side floorboard. When he walked around to the glove box and again asked appellant for the key, appellant re peated that the key was lost. After a second officer indicated that the trunk would be easy to search because it was already open, appellant “looked very nervous,” an d quickly went to the rear of the car and slammed the trunk lid down three times. While wa iting for the tow truck, the officers tested the pill bottle and it returned positive for cocaine. Avery obtained a search warrant because of the cocaine found in the pill bottle and because he could not complete the inventory search since appellant would not provide a key to the trunk or glove box. When he searched the vehicle at the impound lot, Avery found a clear plastic bag contai ning approximately ten rocks of cocaine and a wallet belonging to Fisher in the glove box, and a 12-gauge shotgun in the trunk. The trial court denied appellant’s motion to suppress. It f ound the police action to impound the vehicle was reasonable based on appell ant’s behavior, Avery’s determination that- 4 - the vehicle was potentially unsafe and should not be driven, and its locati on in a private parking lot.
II. MOTION TO SUPPRESS “The burden to establish that the denial of the motion to suppress constituted reversible error rests with the defendant.” King v. Commonwealth, 39 Va. App. 306, 308, 572 S.E.2d 518, 519 (2002) (citations omitted). “We are bound by th e 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 residentjudges and local law enforcement officers.” McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) ( en banc ) (citing Ornelas v. United States, 517 U.S. 690, 699 (1996)). However, we review de novo the trial court’s application of legal st andards such as probable cause and reasonable suspicion to the particular facts of the case. See Shears v. Commonwealth , 23 Va. App. 394, 398, 477 S.E.2d 309, 311 (1996); Ornelas, 517 U.S. at 699; Hayes v. Commonwealth , 29 Va. App. 647, 652, 514 S.E.2d 357, 359 (1999). On appeal, appellant contends that his automobile could not be lawfully impounded and searched unless Avery first determined the basi s for the vehicle’s rejection, and asked appellant if he wished to make alternative towing arrangements. We disagree. “The general rule is . . . that warr antless searches without consent are per se unreasonable and thus invalid under the Fourth Amendmen t, subject to a few well-defined exceptions.” Girardi v. Commonwealth, 221 Va. 459, 463, 270 S.E.2d 743, 745 (1980) (citing Cady v. Dombroski, 413 U.S. 433, 439 (1973)). “[O]ne of the recognized exceptions to the warrant requirement is the inventory search, as approved in South Dakota v. Opperman, 428 U.S. 364 (1976).” Id. at 463, 270 S.E.2d at 746. This Court adopted the three-pronged Oppermantest in- 5 - Servis v. Commonwealth, 6 Va. App. 507, 371 S.E.2d 156 (1988), holding that “a routine inventory search of a lawfully impounded vehicle conducted pursuan t to standard police procedure is reasonable under the fourth amen dment unless it is a ‘pretext concealing an investigatory motive.’” Id. at 521, 371 S.E.2d at 163 (quoting Opperman , 428 U.S. at 376). See also King , 39 Va. App. at 310, 572 S.E.2d at 520. 2 Arlington County Police Department procedures 3 concerning “Towing, Seizing, Impounding, Searching and Releasing Vehicles” provide, inter alia : When a vehicle is impounded for defective equipment the officer must take possession of the license plates, the registration card and decals prior to towing it. The officer will retain the same in his possession for a period of fifteen days unless the owner of the vehicle corrects the defect(s) in which case the license plates, registration card, and decals will be returned to the owner. If the owner has not corrected the defici encies after fifteen days and notified the officer the license pl ates, registration card and decals will be forwarded to the DMV. 4 Arlington County Police Department Procedures #514.01 (1981) (amended 1999). The procedures also provide for impoundment wh en a vehicle or its contents are considered evidence: When fingerprint processing and searching for evidence and other processing is not completed at the scene of impoundment, the

2 Rule 5A:18 requires that a ruling may not be appealed unless an objection and its grounds were stated together atthe time of the ruling, except for good cause or to enable the Court of Appeals to attain the e nds of justice. Because appellantdid not preserve the question of whether the search was a pretext concealing an investigatory motive, we need only determine whether the impoundment was reasonable and in accord with standard police procedures.

3 Appellant does not contest the validity of the procedures.

4 The Arlington County Police Department Proce dures also cite the requirements of Code § 46.2-1000, which provide for suspension of the re gistration of any motor vehicle that has certain enumerated defects, or is “otherwise unsafe to be operated.”- 6 - vehicle should be towed directly to the police impound lot or other designated location for further processing. Id. Although we have not specifically addressed whether the lack of an inspection sticker constitutes lawful grounds for impoundment, our recent analysis in Reel v. Commonwealth, 31 Va. App. 262, 522 S.E.2d 881 (2000), is compelling. InReel, we held that the “operation of a vehicle displaying a pink rejecti on sticker provided reasonable su spicion that [the driver] was committing a traffic infraction” and that the presence of a rejection sticker indicates defective equipment: Virginia law requires that all cars registered and operated in Virginia undergo an annual safety inspection, regardless of the city or county in which the owner re sides. A vehicle bearing a rejection sticker has e xpressly been found to have mechanical defect of such magnitude that the legislature has declared the vehicle unsafe to operate un til the defect is repaired

. Id. at 269, 522 S.E.2d at 884 (emphasis added). In Reel we noted that Code § 46.2-1157 requires that: “No owner or operator shall fail to submit a motor vehicle, trailer, or semitrailer operated on the hi ghways in this Commonwealth to such inspection or fail or refuse to correct or have corrected in accordance with the requirements of this title any mechanical defects found by such inspection to exist.” 5 Id. at 266, 522 S.E.2d at 883 (footnote added). Appellant’s continued use of a defective vehicle provided a reasonable basis for Avery to impound and tow the car pursuant to the valid Ar lington County Police Department procedures. Appellant admitted that he removed the car’s reject ion sticker and that he continued to drive the

5 Code § 46.2-1163 provides that vehicles operated on the highways of the Commonwealth must display a valid inspection stic ker. A first violation of this provision constitutes a Class 3 misdemeanor. A subseque nt conviction, unless otherwise provided in the articles, constitutes a Class 1 misdemeanor.- 7 - car after receiving numerous vi olations for having no valid in spection. Avery was unable to ascertain why the vehicle had fa iled inspection, and reasonably co ncluded that the vehicle might pose a danger to other drivers. Appellant did not give him a specific reason for the rejection, but even if he had, Avery was not requ ired to accept it. Additionally, appellant’s car was in a private parking lot which required a decal to lawfully park, and it had no such decal. Avery knew from experience that if the vehicle was left there it could be towed and potentially subject the Arlington Police Department to civil liability. Appellant also contends that his car wa s not lawfully impounded because Avery did not respect “the wishes of the driver who can make arrangements for the vehicle other than having it towed to the impound lot.” This contention is without merit and unsupported by the record. While the Arlington County procedures allow an owner to request a sp ecific disposition, the officer has the discretion to deny the request. 6 No evidence shows that appellant requested that Avery make other arrangements for the vehicle to be removed. Appellant’s attempts to distinguish Butler v. Commonwealth, 31 Va. App. 614, 525 S.E.2d 58 (2000), from the instant case are mispl aced. The appellant in Butler pulled his car into an apartment complex parking garage before being stopped by an officer for speeding and driving with an expired license. Id. at 617, 525 S. E.2d at 59. After the firs t officer arrested the appellant, a second officer who lived in the apartment complex told him that the appellant’s car

6 If the registered owner of the vehicle is at the scene and has a specific request for the towing . . . of the vehicle, an attempt to honor that request should be made. Factors to consider in honoring the request are traffic conditions . . . . If the owner does not have a specific request or the request cannot be honored . . . the vehicle will be impounded. Arlington County Police Department Procedures #514.01 (1981) (amended 1999).- 8 - had to be moved because it did not have a decal authorizing it to be parked in the garage. Id. at 618, 525 S.E.2d at 60. We held that the vehicle was impounded lawfully and in accord with proper police department procedures. Id. at 619, 525 S.E.2d at 60. Appellant contends that Butler is distinguishable because the decision to impound the vehicle in that case was partly based on the second officer’s knowledge. This is a distinction without a difference. Instead, Butler supports our holding in this case that it was reasonable for Avery to impound the vehicle given his firsthand knowledge of the locat ion and the other circumstances surrounding appellant’s continued use of the vehicle. Under the facts of this case, the police could not allow appellant’s car which he had driven for at least five weeks with defective equipment to either be driven further or remain on private property. Accordingly, we find that appellant’s automobile was lawfully impounded and that the inventory search was proper.
III. MOTION IN LIMINE “The admissibility of evidence is within th e broad discretion of the trial court, and a ruling will not be disturbed on appeal in the ab sence of an abuse of discretion.” Crest v. Commonwealth, 40 Va. App. 165, 170, 578 S.E.2d 88, 90 (2003). Appellant next contends that the tr ial court erred in denying his motion in limine to exclude evidence of the BOL which advised Aver y that appellant had brandished a shotgun and put it in the trunk of his car the week before the stop. Appellant argues that the evidence was irrelevant and inadmissible hearsay and that evenif it was relevant, its relevance was outweighed by its prejudicial effect. We hold that the trial court did not abuse its discretion in admitting the evidence. “[T]he hearsay rule does not operate to exclude evidence of a statement, request, or message offered for the mere purpose of explaining . . . the conduct of the person to whom it was- 9 - made.” Fuller v. Commonwealth, 201 Va. 724, 729, 113 S.E.2d 667, 670 (1960). This was clearly the limited purpose for its admissibility in the instant case. In Fuller, an assault victim we nt to a police station and told officers that he had been hit on the head with an object at a certain address and that a woman there might be dead. Id. at 725, 113 S.E.2d at 668. The Court upheld the admissibi lity of the evidence since it was “admitted not for the purpose of showing the guilt or inno cence of the defendant; but for the purpose of showing the reason for the poli ce officers’ action in arresti ng him.” Id. at 729, 113 S.E.2d at 670. See also Upchurch v. Commonwealth , 220 Va. 408, 258 S.E.2d 506 (1979) (allowing a report of a burglary in progre ss as evidence of what prompted an officer to respond to the burglary); Garrison v. Commonwealth, 36 Va . App. 298, 549 S.E.2d 634 (2002) (allowing a statement from appellant’s co-worker concer ning his whereabouts as evidence of why officer issued a BOL for him); Weeks v. Commonwealth, 248 Va. 460, 450 S.E.2d 379 (1994) (allowing testimony that one police officer told another that appellant shot a stat e trooper to explain the officer’s decision to arrest appellant). In the instant case, the trial court admitted evidence of the BOL for the limited purpose of showing “what this police officer did upon receiving information; not whether or not it was true one week earlier.” He gave a de tailed limiting instruction that enco mpassed the dictates of Fuller and Upchurch: Ladies and gentlemen, whether or not this incident was reported or is true or not is not the issue; it ’s only being offered to you for your consideration to show what this police officer did upon receiving that information; not whether or not it was true on e week earlier. The trial court did not abuse its discretion in admitting the evidence. Accordingly, we affirm the judgment of the trial court. Affirmed.