COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Fitzpatrick and Annunziata 

Argued at Roanoke, Virginia 

COMMONWEALTH OF VIRGINIA 

v. Record No. 1866-95-3 OPINION BY 

 JUDGE JOHANNA L. FITZPATRICK 

BILLY WAYNE RODGERS MARCH 4, 1996 

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY 

William N. Alexander, II, Judge 

 Margaret Ann B. Walker, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellant. 

 Charles J. Strauss, for appellee. 

 Billy Wayne Rodgers (appellee) was indicted for bribery of a 

law enforcement officer in violation of Code § 18.2-438. 

Appellee filed a motion to suppress the evidence used in a prior 

bribery trial based on the doctrine of collateral estoppel. The 

trial court granted the suppression motion, and the Commonwealth 

appeals that ruling pursuant to Code § 19.2-398(2). Because we 

conclude that this appeal is not authorized by Code 

§ 19.2-398(2), we do not reach the merits of the Commonwealth's 

collateral estoppel argument. 

 Appellee was indicted for bribing a law enforcement officer 

on September 14, 1994. In a trial held May 9, 1995, he was tried 

and acquitted of the September 14 charge. Appellee was also 

indicted for bribery of a law enforcement officer on September 

22, 1994. Before his trial on the September 22 charge, appellee 

filed a motion in limine, asserting that the doctrine of 
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collateral estoppel barred the use of evidence from his first 

trial. He argued that "any trial . . . on the same charge using 

the same evidence [presented at the first bribery trial] would 

constitute double jeopardy" and that the Commonwealth should not 

be allowed to use any evidence "presented in the former 

proceeding to establish the alleged bribery of September 22, 

1994." At the motion hearing held August 9, 1995, the trial 

court granted appellee's motion and excluded any evidence of the 

events occurring on September 14, 1994, basing its decision on 

the doctrine of collateral estoppel. The Commonwealth appealed 

that ruling pursuant to Code § 19.2-398(2). 

 In general, "[n]o appeal shall be allowed to the 

Commonwealth in a case involving the life or liberty of a 

person." Va. Const. art. VI, § 1. However, in derogation of 

that general prohibition, the Commonwealth is allowed a limited 

right of appeal in criminal cases. Code § 19.2-398 provides, in 

pertinent part: 

 A petition for appeal from a circuit 

court may be taken by the Commonwealth only 

in felony cases, before a jury is impaneled 

and sworn in a jury trial, or before the 

court begins to hear or receive evidence or 

the first witness is sworn, whichever occurs 

first, in a nonjury trial. The appeal may be 

taken from: 

* * * * * * * 

 (2) An order of a circuit court prohibiting 

the use of certain evidence at trial on the 

grounds such evidence was obtained in 

violation of the provisions of the Fourth, 

Fifth or Sixth Amendments to the Constitution 

of the United States or Article I, Sections 
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8, 10 or 11 of the Constitution of Virginia 

prohibiting illegal searches and seizures and 

protecting rights against self-incrimination, 

provided the Commonwealth certifies the 

evidence is essential to the prosecution. 

(Emphasis added.) Under Code § 19.2-398(2), "[t]he 

Commonwealth's right to appeal is limited to suppression orders 

granted on the basis of violation of specific provisions of the 

United States Constitution and the Virginia Constitution." 

Commonwealth v. Brown, 8 Va. App. 41, 43, 378 S.E.2d 623, 624 

(1989). "The constitutional and statutory authority for 

Commonwealth appeals is narrowly circumscribed. It was not 

enacted to allow Commonwealth appeals from all allegedly 

erroneous pre-trial rulings by the trial court." Id. 

 In interpreting the scope of Code § 19.2-398(2), we have 

held that the Commonwealth may not appeal the suppression of 

evidence based on the violation of a statute or based on the 

violation of a defendant's constitutional due process rights. 

See, e.g., Brown, 8 Va. App. at 42-43, 378 S.E.2d at 623-24 

(violation of Code § 19.2-83, which limits police authority to 

stop, question, and search a suspicious person); Commonwealth v. 

Hawkins, 10 Va. App. 41, 42-43, 390 S.E.2d 3, 4 (1990) (violation 

of constitutional due process in identification procedure). In 

Hawkins, we stated: 

 Reduced to its basic provisions, Code 

 § 19.2-398(2) provides that an appeal may 

be taken from: "[a]n order . . . prohibiting 

the use of certain evidence . . . obtained in 

violation of the provisions of [the federal 

constitutional provisions] or [the state 

constitutional provisions] prohibiting 
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illegal searches and seizures and protecting 

rights against self-incrimination . . . ." 

(emphasis added). The issue to be appealed 

must be of constitutional dimension, relating 

to the specific constitutional provisions, 

but its subject matter is defined by the 

emphasized language. 

Id. at 44, 390 S.E.2d at 5 (second emphasis added). 

 In the instant case, the trial court suppressed the evidence 

presented at the first bribery trial on the basis of collateral 

estoppel. As in Hawkins, "[t]here was no finding that the 

evidence suppressed resulted from an illegal search or seizure or 

from an infringement of the defendant's right against selfincrimination." Id. at 43, 390 S.E.2d at 4. Thus, although the 

Commonwealth's use of the evidence at the second trial may have 

had double jeopardy implications, this constitutional issue does 

not fall within the scope of Code § 19.2-398(2) because it does 

not involve "prohibiting illegal searches and seizures [or] 

protecting rights against self-incrimination." Additionally, the 

evidence suppressed by the trial court was not obtained in 

violation of any of the listed constitutional provisions. 

 Because we conclude that this appeal is outside the scope of 

Code § 19.2-398(2), we do not reach the merits of this case. 

Accordingly, this appeal is dismissed. 

 Dismissed.