COURT OF APPEALS OF VIRGINIA 

Present: Judges Humphreys, Chafin and AtLee 

Argued at Lexington, Virginia 

JOHN TAYLOR 

 OPINION BY 

v. Record No. 1593-18-3 JUDGE ROBERT J. HUMPHREYS 

 APRIL 30, 2019 

VIRGINIA ALCOHOLIC BEVERAGE 

 CONTROL AUTHORITY 

FROM THE CIRCUIT COURT OF THE CITY OF STAUNTON 

Charles L. Ricketts, III, Judge 

 Mark Bong for appellant. 

 Samuel T. Towell, Deputy Attorney General (Mark R. Herring, 

Attorney General; Tara Lynn R. Zurawski, Senior Assistant 

Attorney General; Gregory C. Fleming, Senior Assistant Attorney

General; Sarah Flynn Robb, Assistant Attorney General, on brief), 

for appellee. 

 On July 24, 2017, the Virginia Alcoholic Beverage Control Authority1

 (“ABC” or 

“agency”) terminated appellant John Taylor’s (“Taylor”) employment. Prior to his termination, 

Taylor served as ABC’s “Region 3 Special Agent in Charge.” On July 24, 2017, however, the 

Agency issued Taylor a “Group III” written notice of disciplinary action with removal, i.e., 

termination.2

 The Group III written notice alleged that Taylor violated an ABC licensee’s 

 1

 The Virginia Alcoholic Beverage Control Authority is the “successor in interest to the 

Department of Alcoholic Beverage Control and the Alcoholic Beverage Control Board.” Code 

§ 4.1-101(B). 

2

 The Virginia Department of Human Resource Management Policies and Procedures 

Manual, in Policy 1.60, sets forth certain “standards of conduct” and describes levels of offenses 

ranging from the lowest level, “Group I,” to the highest level, “Group III.” According to the 

policy, Group III offenses include “acts of misconduct of such a severe nature that a first 

occurrence normally should warrant termination.” This includes acts that “endanger others in the 

PUBLISHED 
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constitutional rights by ordering the seizure of money and other evidence without a search 

warrant or written consent. On July 31, 2017, Taylor filed a grievance challenging his 

termination and, pursuant to Code § 2.2-3000 et seq., requested a hearing before a hearing officer 

appointed by the Virginia Department of Human Resources Management (“DHRM”). 

 The hearing officer upheld Taylor’s termination. Taylor subsequently requested that the 

Office of Equal Employment and Dispute Resolution (“EEDR”) at DHRM conduct an 

administrative review of the hearing officer’s decision. Taylor also sought to present newly 

discovered evidence. EEDR, however, declined to disturb the hearing officer’s decision. Taylor 

then appealed the hearing officer’s decision to the Circuit Court for the City of Staunton (the 

“circuit court”), which denied Taylor’s appeal. In doing so, the circuit court held that the hearing 

officer’s decision was not contrary to law. 

 On appeal to this Court, Taylor asserts eleven assignments of error. In his first 

assignment of error, Taylor argues that the circuit court erred in affirming the hearing officer’s 

decision because his termination was based, at least in part, on violations of ABC policies that 

permitted ABC to impermissibly “interpret and define the limits of the Fourth Amendment[.]” 

In his second and third assignments of error, Taylor argues that the circuit court erred because 

neither ABC nor the licensee’s “employees” or “corporate officers” had standing to assert a 

Fourth Amendment violation against Taylor, on behalf of the licensee. In his next seven 

assignments of error, Taylor argues that the circuit court erred because he did not violate a 

licensee’s Fourth Amendment rights. More specifically, Taylor argues that numerous exceptions 

to the Fourth Amendment’s warrant requirement as a prerequisite to a search or seizure applied, 

 

workplace[;] constitute illegal or unethical conduct; neglect of duty; disruption in the workplace; 

or other serious violations of policies, procedures, or laws.” Virginia Department of Human 

Resource Management Policies and Procedures, Standards of Conduct: Policy 1.60 (Apr. 16, 

2008) (emphasis added). 
- 3 - 

including the highly regulated industry exception, plain view, exigent circumstances, and 

consent. In his final assignment of error, Taylor makes what we assume is essentially a due 

process argument. Taylor therein argues that the circuit court erred in upholding his termination 

because ABC “failed to follow its own internal policies” and “departed from fair and 

unprejudiced discipline.” 

I. BACKGROUND 

This Court is bound by the hearing officer’s factual findings. In an appeal of this nature, 

this Court’s sole role is to consider whether the hearing officer’s decision, based upon those 

factual findings, was “consistent with law and policy.” See Osburn v. Va. Dep’t of Alcoholic 

Beverage Control, 295 Va. 10, 17 (2018); see also Code § 2.2-3005.1(C). 

On October 23, 2017, a hearing regarding Taylor’s termination took place. In a 

subsequent decision dated February 12, 2018, the hearing officer upheld Taylor’s Group III 

written notice of disciplinary action. In his decision, the hearing officer noted that ABC 

employed Taylor as a regional “Special Agent in Charge.” In that capacity, Taylor was assigned 

to the ABC Bureau of Law Enforcement Operations, and his responsibilities included the 

supervision and oversight of all criminal and administrative investigations conducted by the 

special agents assigned to the Region 3 enforcement office. Taylor also served as a liaison with 

federal, state, and local officials, as well as command level personnel with other law enforcement 

agencies throughout the Commonwealth. 

Taylor’s position as a Special Agent in Charge required him to supervise subordinate 

supervisors, including the Assistant Special Agent in Charge, Daniel Blye (“ASAC Blye”). 

ASAC Blye, in turn, supervised the special agents and all investigations conducted by the region. 

During the time period relevant to this case, Special Agents Kevin Weatherholtz and Kevin 
- 4 - 

Bilwin (“Special Agent Weatherholtz” and “Special Agent Bilwin”) were special agents 

reporting through ASAC Blye to Taylor. 

Code § 4.1-105 vests ABC special agents with police powers. On March 24, 2015, the 

Governor of Virginia issued Executive Order 40 to improve the law enforcement training of 

ABC’s special agents. Executive Order 40 provides, in part, that “[t]he ABC Board shall require 

the immediate retraining of all ABC special agents in the areas of use of force, cultural diversity, 

effective interaction with youth, and community policing, to be completed no later than 

September 1, 2015.” 

On June 1, 2015 and June 2, 2015, Taylor participated in training in accordance with 

Executive Order 40. Taylor’s training addressed several work-related topics, including 

“Upholding Constitutional Rights of Citizens.” In part, the training defined “search” and 

“seizure” as each term pertains to government actions regulated by the Fourth Amendment. The 

training also defined and properly conceptualized “probable cause” and “reasonable suspicion” 

pursuant to the Fourth Amendment. 

On January 24, 2017, Taylor spoke with ASAC Blye and Special Agent Weatherholtz 

regarding a possible illegal gambling case at the Stephens City Moose Lodge (“Lodge”), a 

private, members-only establishment and ABC licensee. Special Agent Bilwin, a member of the 

Lodge, had an identification card that allowed him to enter the establishment. The identification 

card did not show Special Agent Bilwin’s picture. Taylor subsequently approved a plan to have 

Special Agent Weatherholtz enter the Lodge using Special Agent Bilwin’s identification card. 

On January 27, 2017, Special Agent Weatherholtz and another ABC agent made an 

“internal observation” of the Lodge. Both agents were admitted to the Lodge using Special 

Agent Bilwin’s identification card. Special Agent Weatherholtz, posing as Special Agent 

Bilwin, signed in the other agent as his guest. Special Agent Weatherholtz and the other agent 
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proceeded to drink beer and solicit information from a bartender about the Lodge’s upcoming 

Super Bowl party. The agents learned that for $30, they could attend the Super Bowl party, eat, 

drink, and participate in a “Super Bowl” board game that would pay out money from a “pool” to 

multiple winners. Special Agent Weatherholtz, again using Special Agent Bilwin’s name, paid 

the $30 entry fee and received a numbered chip that corresponded to a square on the Super Bowl 

board. The bartender and a flyer at the Lodge both claimed that the Super Bowl board game was 

legal. 

Later that same day, Special Agent Weatherholtz met with Special Agent Bilwin. 

Subsequently, on January 31, 2017, Special Agent Bilwin met with Taylor and ASAC Blye to 

discuss the Super Bowl board game. Taylor and ASAC Blye concluded that the game was 

illegal. Taylor then instructed Special Agent Bilwin to seize the money involved with the game 

as evidence. Taylor did not obtain a search warrant or instruct Special Agent Bilwin to do so. 

Further, Taylor did not speak with ABC’s internal legal counsel or instruct Special Agent Bilwin 

to use ABC’s consent to search form. 

On February 1, 2017, Special Agent Bilwin went to the Lodge to discuss the Super Bowl 

board game and pool being conducted inside the premises. There, Special Agent Bilwin met 

with Larry Dillow (“Dillow”), the Lodge’s ABC manager and bartender. Special Agent Bilwin 

explained the reason for his visit and asked to see the Super Bowl board game. Dillow agreed 

and showed Special Agent Bilwin the Super Bowl board with squares, “located in plain view 

behind the bar.” Special Agent Bilwin then asked about the location of the numbered chips for 

purchase, which Dillow retrieved from a back room. 

Special Agent Bilwin called Taylor to provide an update. During the phone call, Special 

Agent Bilwin told Taylor that he was unsure whether the game was illegal. Taylor then 
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informed Special Agent Bilwin that he would “get the name” of someone “at gaming” to call 

Special Agent Bilwin. 

Approximately twenty minutes later, James Habel (“Habel”), the Lodge’s administrator, 

arrived at the Lodge with Gail Teft (“Teft”), the Lodge’s acting secretary. Special Agent Bilwin 

showed his credentials to Habel and Teft and explained his reason for the visit. Teft, being 

familiar with the Super Bowl board game, provided Special Agent Bilwin with two copies of 

invoices for the purchase of the boards, which were purchased from a distributor in another state. 

Taylor called Special Agent Bilwin and provided him with the name of Michael Menefee 

(“Menefee”), a compliance manager with the Virginia Department of Agriculture and Consumer 

Services. Taylor told Special Agent Bilwin that Menefee would call him in thirty minutes. 

Taylor also reminded Special Agent Bilwin to seize the money collected by the Lodge if 

Menefee concluded that the Super Bowl board game was illegal. 

After waiting approximately forty-five minutes, Special Agent Bilwin called Menefee. 

During their conversation, Menefee asked Special Agent Bilwin to send him pictures of the 

Super Bowl board and numbered chips. Menefee subsequently concluded that the game was 

illegal. Special Agent Bilwin explained the Super Bowl board game’s illegality to Habel and 

Teft. He then informed Habel and Teft that he “would like to seize the game and proceeds as 

evidence.” Habel and Teft complied with Special Agent Bilwin’s request and “volunteered the 

money acquired from the game[,]” as well as the Super Bowl board, the remaining numbered 

chips, and three unopened Super Bowl boards. Retrieving some of those items, including a 

portion of the money collected, required Habel and Teft to open a safe in the Lodge’s social 

quarters, as well as a second safe in an upstairs office. Teft organized and counted the money 

acquired from the game, which totaled $1,636. 
- 7 - 

ABC conducted an internal investigation and, on July 24, 2017, issued Taylor a Group III 

written notice with removal. As part of the investigation, an ABC investigator spoke with Habel. 

Habel informed the investigator that it was his understanding that Special Agent Bilwin was 

asked to confiscate the Super Bowl board, “as well as all cash that was made from the board.” 

Habel also stated that he informed Special Agent Bilwin that he would “give him anything and 

everything that he needed.” Habel “wanted to cooperate in any way that [he] could.” The ABC 

investigator also spoke with Teft, who added that Special Agent Bilwin informed her that “he 

was going to have to confiscate the board and the items that went with it and the cash that went 

with it.” Teft added that “[t]he way [Special Agent Bilwin] put it basically he didn’t have a 

choice . . . this was what he needed to do was to confiscate it all[.]” 

Based upon these facts, the hearing officer found that ABC presented sufficient evidence 

to show that Taylor failed to follow agency policy, which constituted a “Group II” offense. 

Notably, the hearing officer found that multiple “General Orders” defined the parameters of an 

investigation of an ABC licensee. General Order 301, for example, governs search warrants and 

provides that ABC special agents “shall observe constitutional guidelines when conducting 

searches and always remain mindful of their lawful purpose.” Further, General Order 501 

governs licensee inspections and provides that ABC special agents “shall not” conduct 

inspections when an agent possesses “advanced knowledge/probable cause that the evidence of a 

criminal violation is located upon the licensed premises. In this instance, the agent will obtain 

and execute a search warrant in accordance with General Order 301, Search Warrants.” Finally, 

the hearing officer cited General Order 106, which addresses the issuance of lawful orders. That 

order provides that “Bureau supervisors will not knowingly or willfully issue any order in 

violation of a law, ordinance, rule or order of the United States, Commonwealth of Virginia, or 

the Bureau of Law Enforcement.” 
- 8 - 

Mindful of these General Orders, the hearing officer found that Taylor had “advance 

knowledge” of a criminal violation occurring on the Lodge’s premises. The hearing officer 

subsequently found that, pursuant to General Order 301, Taylor “was obligated . . . to ‘observe 

constitutional guidelines when conducting searches.’” Pursuant to General Order 501, Taylor 

was also obligated “to refrain from conducting an inspection of the Lodge” and required 

to “obtain a search warrant and then execute the search warrant in accordance with General 

Order 301.” Thereafter, the hearing officer found that Taylor failed to obtain a required search 

warrant before authorizing a search of the Lodge. The hearing officer also found that Taylor 

ordered Special Agent Bilwin to seize the money collected by the Lodge for the illegal Super 

Bowl board game without obtaining a search warrant first. Therefore, the hearing officer 

concluded that Taylor’s order violated the law and ABC policy, which justified the issuance of a 

Group II written notice. 

The hearing officer subsequently found that, given the circumstances of the case, 

Taylor’s misconduct justified ABC’s decision to elevate Taylor’s Group II written notice to a 

Group III written notice. The hearing officer explained that, in certain extreme circumstances, a 

Group II offense may be elevated to a more severe Group III offense. As stated by the hearing 

officer, “[f]ailure to comply with search policies and laws created a unique impact on the Agency 

that would justify elevation of a Group II Written Notice to a Group III Written Notice.” Taylor 

did not comply with agency policy because he did not obtain or instruct Special Agent Bilwin to 

obtain a search warrant before entering the Lodge or seizing its property. Consequently, the 

hearing officer found that Special Agent Bilwin’s seizure of the Lodge’s property without a 

search warrant describing the items to be seized “was contrary to the Fourth Amendment.”3

 3

 Taylor did not dispute at oral argument that, according to the hearing officer’s opinion, 

his violation of ABC policy warranted a Group II offense. 
- 9 - 

The hearing officer also found that no exception to the Fourth Amendment’s prohibition 

on warrantless searches and seizures justified Special Agent Bilwin’s seizure of the Lodge’s 

property. For example, the hearing officer found that not all the items seized were in plain view, 

particularly some of the items retrieved from the Lodge’s safes. Finally, the hearing officer 

concluded that Habel and Teft did not consent to the search or seizure. Mindful of these 

circumstances and Taylor’s failure to comply with search and seizure policies and laws, the 

hearing officer upheld Taylor’s Group III written notice. 

Taylor subsequently requested that EEDR administratively review the hearing officer’s 

decision. Taylor also sought to present newly discovered evidence in the form of witness 

testimony from Special Agent Bilwin, who declined to testify during Taylor’s hearing on the 

advice of his legal counsel. On March 12, 2018, EEDR issued a ruling upholding Taylor’s 

termination and refusing to disturb the hearing officer’s decision. 

After exhausting his administrative appeals, Taylor appealed to the circuit court. In an 

opinion dated August 8, 2018, the circuit court found “that the decision of the hearing officer 

was not contrary to law, and there was no constitutional provision, statu[t]e, regulation or 

judicial decision which the hearing officer’s decision contradicted.” Accordingly, the circuit 

court denied Taylor’s appeal.4 This appeal follows. 

II. ANALYSIS 

A. Standard of Review 

“[I]n conjunction with the Virginia Personnel Act, Code § 2.2-2900 et seq[.], the General 

Assembly established a system for handling state employee complaints arising in the workplace 

by enacting the State Grievance Procedure[.]” Murphy v. Va. Dep’t of State Police, 68 Va. App. 

716, 719 (2018) (quoting Pound v. Dep’t of Game & Inland Fisheries, 40 Va. App. 59, 63-64 

 4

 Taylor also filed a motion for reconsideration, which the circuit court denied. 
- 10 - 

(2003)); see also Code § 2.2-3000 et seq. Accordingly, we observe that Virginia’s employee 

grievance procedure creates a “tripartite review procedure” with the following roles: “(1) the 

hearing officer is the finder of fact and final authority on factfinding; (2) DHRM and [E]EDR 

determine whether the hearing officer’s ruling is in compliance with personnel policy and 

grievance procedure respectively; and (3) the courts determine whether the grievance 

determination is ‘contradictory to law.’” Passaro v. Va. Dep’t of State Police, 67 Va. App. 357, 

367 (2017) (citing Va. Dep’t of State Police v. Barton, 39 Va. App. 439, 445 (2002)). “Pursuant 

to that review procedure, the hearing officer’s findings of fact and the administrative 

determinations of compliance with grievance procedure by [E]EDR and personnel policy by 

DHRM are not subject to judicial review.” Id. (citing Barton, 39 Va. App. at 445). 

“In determining whether a grievance decision was ‘contradictory to law,’ [t]he courts are 

limited to ascertaining compliance with constitutional provisions, statutes, regulations, and 

judicial decisions.” Murphy, 68 Va. App. at 720 (some internal quotation marks and citations 

omitted). Further, it is the appealing party’s burden to “identify [a] constitutional provision, 

statute, regulation or judicial decision which the [hearing officer’s] decision contradicted.’” 

Osburn, 295 Va. at 17 (quoting Va. Polytechnic Inst. & State Univ. v. Quesenberry, 277 Va. 420, 

429 (2009)). “Questions regarding whether a decision is contradictory to law, including the 

meaning of any underlying statutes, are reviewed de novo.” Id. (citing Quesenberry, 277 Va. at 

429; REVI, LLC v. Chicago Title Ins. Co., 290 Va. 203, 208 (2015)). 

B. Taylor’s ABC Policy Violations 

As a preliminary matter, this Court must address ABC’s contention that this Court need 

not analyze the alleged Fourth Amendment issues because ABC terminated Taylor for both a 

violation of the Fourth Amendment as well as multiple violations of ABC policy. ABC argues 

that Taylor’s failure to follow ABC policy, standing alone, constituted misconduct justifying 
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Taylor’s removal. ABC also notes that these policies—General Orders 301, 501, and 106—

impose stricter requirements upon ABC special agents than the Fourth Amendment. Therefore, 

ABC seems to argue that this Court should affirm the circuit court’s judgment based upon 

Taylor’s violation of ABC policy alone, because this Court is prohibited from reviewing matters 

of agency policy. 

ABC’s argument on this matter fails for two reasons. First, the hearing officer initially 

determined that Taylor’s failure to follow ABC policy warranted a Group II offense. More 

specifically, the hearing officer found that given the circumstances of this case, General Orders 

501, 301, and 106 obligated Taylor to obtain a search warrant before ordering a search of the 

Lodge and the seizure of its property. Agency policy also mandated that Taylor avoid knowingly 

or willfully issuing any order in violation of a law, ordinance, rule or order of the United States, 

the Commonwealth, or the Bureau of Law Enforcement. The hearing officer subsequently found 

that Taylor’s actions violated ABC policy, which justified the issuance of a Group II written 

notice. Only after concluding that Taylor violated ABC policy did the hearing officer address 

the elevation of Taylor’s Group II offense to a Group III offense. Given that only Group III 

offenses warrant termination pursuant to DHRM’s Procedures Manual, it is clear that Taylor’s 

failure to follow ABC policy alone was not sufficient misconduct to justify Taylor’s removal as 

ABC claims, and the hearing officer did not treat Taylor’s failure as such. 

Second, while ABC correctly notes that agency policy is not subject to judicial review, 

ABC’s preliminary argument fails to recognize that the policies referenced in Taylor’s notice of 

termination are directly related to, and dependent upon, the Fourth Amendment rights of ABC 

applicants and licensees. This is evident in the hearing officer’s opinion where the hearing 

officer aptly summarized the interplay between the Fourth Amendment and General Orders 501, 

301, and 106 to address the elevation of Taylor’s Group II offense to a Group III offense. Thus, 
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to allow the termination of Taylor’s employment to depend upon ABC policy alone would 

amount to allowing an agency official to interpret and define the limits of the Fourth 

Amendment. Therefore, we must review Taylor’s assignments of error regarding ABC’s policies 

and the jurisprudence interpreting the Fourth Amendment.5

C. Taylor’s Standing Arguments 

As a second preliminary matter, Taylor oddly argues that the circuit court erred in 

upholding his termination because ABC lacked standing to assert a Fourth Amendment violation 

on behalf of the Lodge. In support of this argument, Taylor cites a laundry list of criminal cases 

to assert that Fourth Amendment rights are personal rights that may not be vicariously asserted. 

Taylor also posits that neither the Lodge’s “employees” nor its “corporate officers” had standing 

to assert a Fourth Amendment violation against Taylor, on behalf of the Lodge. These 

arguments lack merit of any kind. 

The issue of standing to seek a constitutional remedy is entirely immaterial to whether 

Taylor violated the Lodge’s Fourth Amendment rights in the abstract. Taylor’s argument mixes 

apples and oranges. ABC was not attempting to vicariously seek redress for a violation of the 

constitutional rights of a third party. This appeal does not concern a criminal case in which a 

defendant sought to suppress evidence seized in violation of the Fourth Amendment. Rather, this 

case is a civil employment grievance appeal where ABC and the hearing officer determined that 

Taylor violated ABC policies, which incorporate by reference ABC licensees’ constitutional 

 5

 In his first assignment of error, Taylor employs this same analysis to argue that the 

circuit court erred in upholding Taylor’s termination because ABC incorporated Fourth 

Amendment principles in its policies. Such an action, clearly, is not automatically an error of 

law as Taylor seems to assert. Rather, this Court must review ABC’s incorporation of the Fourth 

Amendment in its policies to ensure that the agency policies comply with established 

constitutional guidelines. See Passaro, 67 Va. App. at 367 (emphasizing that, pursuant to 

Virginia’s employee grievance procedure, the courts only review issues of law). 
- 13 - 

protections provided by the Fourth Amendment. Therefore, Taylor’s standing argument is 

inapplicable to the issues before us. 

D. Taylor’s Fourth Amendment Arguments 

Taylor argues that the circuit court erred in upholding his termination because he did not 

violate the Lodge’s Fourth Amendment rights. Taylor supports that argument and attempts to 

justify his actions by relying upon numerous exceptions to the Fourth Amendment’s prohibition 

on warrantless searches and seizures. These exceptions, as argued by Taylor, include the highly 

regulated industry exception, plain view, exigent circumstances, and consent.6

1. The Highly Regulated Industry Exception 

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. It also provides that “no Warrants shall issue, but upon probable cause[.]” Id. Based on this 

constitutional text, the United States Supreme Court “has repeatedly held that ‘searches 

conducted outside the judicial process, without prior approval by [a] judge or [a] magistrate 

[judge], are per se unreasonable . . . subject only to a few specifically established and 

well-delineated exceptions.’” City of L.A. v. Patel, 135 S. Ct. 2443, 2452 (2015) (citations 

omitted). 

“‘[T]he Fourth Amendment’s prohibition on unreasonable searches and seizures is 

applicable to commercial premises, as well as to private homes.’” Osburn, 295 Va. at 17 

(quoting New York v. Burger, 482 U.S. 691, 699 (1987)). “Warrantless searches, in either 

 6

 Taylor also makes a brief “reasonableness” argument on appeal. We recognize that the 

United States Supreme Court has long held that the “[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)). We also recognize that an action is 

“reasonable” under the Fourth Amendment, regardless of the individual police officer’s state of 

mind, “‘as long as the circumstances, viewed objectively, justify [the] action.’” Stuart, 547 U.S. 

at 403 (quoting Scott v. United States, 436 U.S. 128, 138 (1978) (emphasis in original)). 
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context, are presumptively unreasonable.” Id. (citing Patel, 135 S. Ct. at 2452). “There is an 

exception, however, for warrantless inspections of businesses engaged in highly regulated 

industries.” Id. (citing Patel, 135 S. Ct. at 2454-56; Burger, 482 U.S. at 702). The liquor 

industry falls within the highly regulated industry exception to the warrant requirement. See 

Colonnade Catering Corp. v. United States, 397 U.S. 72, 76 (1970). 

“The highly regulated industry exception is premised upon the concept that ‘[c]ertain 

industries have such a history of government oversight that no reasonable expectation of privacy 

could exist for a proprietor over the stock of such an enterprise.’” Osburn, 295 Va. at 17-18 

(quoting Marshall v. Barlow’s, Inc., 436 U.S. 307, 313 (1978)). To be “reasonable,” however, a 

warrantless search or seizure of a highly regulated business must be specifically authorized by 

statute, and the parameters of any exception to the search warrant requirement must be found in 

the statute. See id. at 18 (citing United States v. Biswell, 406 U.S. 311, 315 (1972)). 

In the Commonwealth, Code § 4.1-204(F) grants ABC and its special agents the authority 

to search the premises of licensees. That statute states, in pertinent part, that 

[ABC] and its special agents shall be allowed free access during 

reasonable hours to every place in the Commonwealth and to the 

premises of both (i) every wine shipper licensee and beer shipper 

licensee and (ii) every delivery permittee wherever located where 

alcoholic beverages are manufactured, bottled, stored, offered for 

sale or sold, for the purpose of examining and inspecting such 

place and all records, invoices and accounts therein. 

Code § 4.1-204(F). General Order 501, in turn, interprets and defines the scope of authority 

granted by Code § 4.1-204(F). Section IV(A) of that general order defines the scope of such 

inspections to include the following: 

4. Evidence of violation of state and federal criminal laws which 

could constitute grounds for suspension or revocation of a license 

pursuant to Virginia Code Section 4.1-225. These will include, but 

not be limited to, the following: 

 . . . . 
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c. Gambling violations; 

 . . . . 

5. Agents can inspect the premises where the items outlined above 

could reasonably be located. While conducting inspections agents 

may seize items of evidence, under the plain view doctrine, of 

criminal violations if they have probable cause to believe such

items constitute evidence of a crime. Upon seizing any such item 

however, the inspection should cease with the scene secured, and 

either a search warrant or consent to search from a person 

authorized to provide consent should be obtained. 

In short, Code § 4.1-204(F), when read in conjunction with ABC policies, permits 

warrantless inspections or searches of any licensee’s premises for the purpose of inspecting 

records and accounts. It also permits the seizure of any contraband or evidence of criminal 

activity in “plain view,” but no other seizures without a search warrant or consent are authorized 

by ABC policies implementing the statute. 

Here, Taylor argues that the circuit court erred in upholding his termination because 

Special Agent Bilwin’s “entry,” as characterized by Taylor, fell under the highly regulated 

industry exception to the Fourth Amendment. Taylor, however, offers only a recitation of the 

parameters of the highly regulated industry exception, but no analysis on the matter. Taylor then 

proceeds to argue that Special Agent Bilwin’s search and subsequent seizure of the Lodge’s 

property was “reasonable” under the circumstances. 

Reviewing the ABC policies at issue in conjunction with applicable Fourth Amendment 

jurisprudence, we find Taylor’s highly regulated industry exception argument unpersuasive. As 

recognized by the hearing officer, “[ABC] did not discipline [Taylor] for an unlawful search.” 

(Emphasis added). Rather, Taylor was disciplined for ordering the unlawful seizure of money 

and other property belonging to the Lodge. Further, as previously mentioned, this case is not 

dependent upon whether Taylor violated an ABC licensee’s constitutional rights in the abstract. 

It is instead dependent upon whether Taylor’s actions violated ABC policy, which incorporates 
- 16 - 

guidelines pertaining to unlawful searches and seizures that are, in some respects, more 

restrictive than constitutional jurisprudence would otherwise permit. See Virginia v. Moore, 553 

U.S. 164, 174 (2008) (“A State is free to prefer one search-and-seizure policy among the range 

of constitutionally permissible options, but its choice of a more restrictive option does not render 

the less restrictive ones unreasonable, and hence unconstitutional.”). Consequently, we cannot 

say that either the hearing officer or circuit court’s judgment on the issue was contradictory to 

law. 

2. The Plain View Exception 

Taylor next argues that he did not violate the Lodge’s Fourth Amendment rights when he 

ordered Special Agent Bilwin to seize money and other property belonging to the Lodge because 

the seized items were in plain view. According to Taylor, Special Agent Bilwin viewed the 

Super Bowl board game and associated numbered chips in plain view, “the incriminating 

character of the evidence was plainly apparent, and [Special] Agent Bilwin had a lawful right of 

access to the objects themselves.” Taylor also argues that probable cause supported the 

warrantless seizure. 

“The theory of the plain view doctrine is that an individual has no reasonable expectation 

of privacy in items that are in plain view.” Daniels v. Commonwealth, 69 Va. App. 422, 435 

(2018) (quoting Commonwealth v. Thornton, 24 Va. App. 478, 483 (1997)). The United States 

Supreme Court has identified the following three requirements that must be met before the plain 

view doctrine applies: “1) that the officer did not violate the Fourth Amendment in arriving at 

the place from which the evidence could be plainly viewed, 2) that the incriminating character of 

the evidence must be immediately apparent, and 3) that the officer have a lawful right of access 

to the object itself.” Id. (quoting Cauls v. Commonwealth, 55 Va. App. 90, 99 (2009)). Only 

when these requirements are met can the plain view doctrine justify a warrantless seizure. 
- 17 - 

Here, this Court need not individually analyze each requirement of the plain view 

doctrine because the hearing officer found as a matter of fact that only some, but not all, of the 

items seized by Special Agent Bilwin were in plain view. “The [Super Bowl boards] and chips 

were on display for anyone in the Lodge to see.” Importantly, however, the hearing officer 

found that “[n]ot all of the money . . . was in plain view. Some of the money was in a cash bag 

in a safe in the social quarters and some of the money was in a safe in the office.” With the 

record clearly supporting these findings of fact, the hearing officer correctly concluded that 

“[b]ecause some of the money was not in plain view, not all of the money could be seized 

without a warrant.” Consequently, we cannot say that either the hearing officer or circuit court’s 

judgment on the issue was contradictory to law. 

3. The Exigent Circumstances Exception 

Taylor also argues that “exigent circumstances inside the Lodge” justified Special Agent 

Bilwin’s seizure of the money associated with the Super Bowl boards. Similar to his highly 

regulated industry exception argument, however, Taylor offers only a brief recitation of the law 

of exigent circumstances, but little to no analysis. 

“The exigent circumstances exception to the warrant requirement applies when the 

exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless 

search [or seizure] is objectively reasonable under the Fourth Amendment.” Commonwealth v. 

Campbell, 294 Va. 486, 493 (2017) (quoting Kentucky v. King, 563 U.S. 452, 459 (2011) (some 

internal quotation marks omitted)), cert. denied sub nom. Campbell v. Virginia, 139 S. Ct. 421 

(2018). According to our Supreme Court, the factors relevant to an exigent circumstances 

analysis include, but are not limited to, the following: 

(1) the degree of urgency involved and the time required to get a 

warrant; (2) the officers’ reasonable belief that contraband is about 

to be removed or destroyed; (3) the possibility of danger to others, 

including police officers left to guard the site; (4) information that 
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the possessors of the contraband are aware that the police may be 

on their trail; (5) whether the offense is serious, or involves

violence; (6) whether officers reasonably believe the suspects are 

armed; (7) whether there is, at the time of entry, a clear showing of 

probable cause; (8) whether the officers have strong reason to 

believe the suspects are actually present in the premises; (9) the 

likelihood of escape if the suspects are not swiftly apprehended; 

and (10) the suspects’ recent entry into the premises after hot

pursuit. 

Id. at 495 (quoting Verez v. Commonwealth, 230 Va. 405, 410-11 (1985)). 

The hearing officer and the circuit court found Taylor’s exigent circumstances argument 

unpersuasive as do we. In his decision, the hearing officer explained that “[a]lthough money is 

inherently mobile and easily concealed,” no exigency existed independent of Taylor’s instruction 

to Special Agent Bilwin to seize the money. The hearing officer added that Taylor “could have 

obtained a search warrant to avoid the exigency or “‘frozen the scene’ until he was able to obtain 

a search warrant.” We agree. 

Nothing in the record supports the existence of any exigency requiring Special Agent 

Bilwin’s warrantless seizure of the Lodge’s property. The record reflects that Taylor knew of the 

Super Bowl board game’s illegality several days before Special Agent Bilwin’s visit to the 

Lodge on February 1, 2017. Taylor also ordered the warrantless seizure of the gambling 

proceeds on January 31, 2017, the day before the seizures occurred. Additionally, the record 

does not reflect that the evidence related to the Super Bowl board game was in jeopardy of being 

lost, destroyed, or removed from the Lodge when Taylor ordered the warrantless seizures. Both 

Teft and Habel cooperated with Special Agent Bilwin’s investigation and informed him of their 

intent to comply. Finally, this Court cannot conclude that any of the other “Verez” factors, 

which generally apply to more serious criminal offenses, apply here. Therefore, we cannot say 

that the hearing officer’s conclusion that the exigent circumstances exception did not apply was 

contradictory to law. 
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4. The Consent Exception 

In his final Fourth Amendment argument, Taylor argues that the circuit court erred in 

upholding his termination because Special Agent Bilwin obtained consent from Teft and Habel 

to seize the money associated with the Super Bowl board game. 

“Where consent is freely and voluntarily given, probable cause and a search warrant are 

not required.” Limonja v. Commonwealth, 8 Va. App. 532, 540 (1989). “Whether a person has 

consented to a warrantless search ‘is a factual question best answered by the . . . factfinder.’” 

Osburn, 295 Va. at 20 (quoting Evans v. Commonwealth, 290 Va. 277, 283 n.4 (2015)). 

“Pursuant to Virginia’s statutory grievance procedure, findings of fact are to be made by the 

hearing officer.” Id.; see also Code § 2.2-3005.1(C). 

Here, the hearing officer found that Habel and Teft did not consent to Special Agent 

Bilwin’s seizure of the money at issue. That factual finding is supported by the record. There is 

no evidence in the record of an affirmative consent to seize the items taken. The hearing officer 

explained that Habel and Teft’s expressed desire to cooperate with Special Agent Bilwin did not 

mean that they consented to the seizure of the money. The hearing officer also noted that Special 

Agent Bilwin did not inform Habel and Teft that they could refuse to turn over the money. 

Finally, while ABC created a consent to search form to resolve questions of whether a licensee 

consented to a search or seizure, Special Agent Bilwin never presented Habel or Teft with such a 

form. It follows that we cannot say that either the hearing officer or circuit court’s judgment on 

the issue was contradictory to law. 

E. Taylor’s Due Process Argument 

In his final assignment of error, Taylor argues that the circuit court erred in upholding his 

termination because ABC “failed to follow its own internal policies” and “departed from fair and 

unprejudiced discipline.” Taylor also accuses ABC of terminating him in a “retaliatory and 
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unlawful” manner, which violated his due process rights. Taylor attempts to absolve himself of 

responsibility by asserting that, at the time of the investigation into the Lodge’s activities, he was 

not Special Agent Bilwin’s “line supervisor.” Taylor also claims that he was “unaware of many 

details of [Special] Agent Bilwin’s investigation at the time [he] was questioned regarding 

[Special] Agent Bilwin’s handling of the gambling investigation.” While Taylor maintains that 

ABC failed to take these factors into consideration before issuing him a Group III written notice, 

he fails to explain why ABC’s decision to terminate his employment was retaliatory and 

unlawful. 

We find that Taylor’s final assignment of error is without merit. “Under settled 

principles, a state employee with a property interest in his employment is entitled to 

pre-termination ‘oral or written notice of the charges, an explanation of the employer’s evidence, 

and an opportunity for the employee to tell his side of the story.’” Va. Dep’t of Alcoholic 

Beverage Control v. Tyson, 63 Va. App. 417, 423-24 (2014) (quoting Gilbert v. Homar, 520 U.S. 

924, 929 (1997)). This Court has concluded, however, that “[t]he ‘elaborate statutory grievance 

procedures’ required by the State Grievance Procedure ‘more than satisfy the minimal 

requirements of due process.’” Id. (quoting Va. Dep’t of Transp. v. Stevens, 53 Va. App. 654, 

664 (2009)). 

In this case, ABC followed the grievance statutes at all stages of the process. It 

ultimately ended with an evidentiary hearing before a hearing officer in which Taylor was 

represented by counsel. During the hearing, Taylor had the opportunity to present evidence, call 

and examine witnesses, and contest all aspects of the agency’s decision. Taylor then had the 

opportunity to request that EEDR conduct an administrative review of the hearing officer’s 

decision. Taylor also filed an appeal with the circuit court. The circuit court ultimately found, 

however, that the hearing officer’s decision “was not contradictory to law.” It is difficult to 
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conceive how this comprehensive process violated Taylor’s due process rights, and Taylor offers 

none beyond asserting the severity of the sanction as subjectively prejudicial and unfair. 

Therefore, we conclude that the State Grievance Procedure more than satisfied Taylor’s due 

process rights. 

III. CONCLUSION 

 For the foregoing reasons, we affirm the circuit court’s judgment that the hearing 

officer’s decision was not contradictory to law. 

Affirmed.