COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Annunziata and Agee 

Argued at Alexandria, Virginia 

ANTONIO FREDERICK KING 

 OPINION BY 

v. Record No. 2815-01-4 JUDGE ROSEMARIE ANNUNZIATA 

 DECEMBER 3, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Kathleen H. MacKay, Judge 

 Martin W. Lester, Public Defender, for 

appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 On February 21, 2001, Arlington County Sheriff's Deputy 

Randy Hill stopped Antonio Frederick King, the appellant, for a 

traffic violation. After determining that King was driving on a 

suspended Virginia license, Hill impounded his vehicle and 

conducted an inventory search. The trial court denied King's 

motion to suppress evidence found as a result of that search. It 

is from this ruling that King appeals. For the reasons that 

follow, we reverse. 

Background

 In reviewing the trial court's denial of the motion to 

suppress, we view the evidence in the light most favorable to the 

Commonwealth, the party prevailing below, and grant to it all 

reasonable inferences fairly deducible therefrom. See Dickerson 

v. Commonwealth, 35 Va. App. 172, 177, 543 S.E.2d 623, 626 (2001) 
(citing Greene v. Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 

138, 139 (1994)). So viewed, the evidence establishes that Hill 

stopped King for speeding and verified that he was driving on a 

valid Maryland license, but determined his Virginia license had 

been suspended for failure to pay fines. Hill issued King a 

summons for reckless driving and driving on a suspended license. 

 After King acknowledged he had received notice of his 

Virginia license's suspension, Hill impounded King's vehicle for 

"safekeeping," pursuant to the sheriff's department policies. 

Departmental policy describes the decision to impound a vehicle 

as a "judgment call" to be made by the deputy who makes the stop. 

Impoundment is "highly recommended" under the policy, and Hill's 

common practice was to have the vehicle towed if the driver did 

not have someone available to drive it from the site, even if the 

vehicle was legally parked. 

 King's vehicle was stopped on a two-lane "very heavily 

congested" street. An elementary school and other public 

buildings, including a library, were located nearby. Hill 

testified that he "wouldn't put a vehicle there and just leave it 

there" because the street was congested, and it was "not a rural 

street [where one would] leave a vehicle." However, the vehicle 

was not impeding traffic and there was no evidence it was in a 

no-parking or otherwise restricted zone. 

 The inventory search Hill performed before the vehicle was 

towed yielded a bag of money "halfway hidden" behind a spare tire 

on the left rear side of the vehicle and another bag of money 

inside a blue "lunch zip tight bag." King explained that the 

money had been in his possession for two days, as an employee of 

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a vending company. Ultimately, the money, totaling $2,289.95, 

was determined to have been stolen from a vending company in 

Fairfax, Virginia. Hill also found two crowbars, four 

screwdrivers, miscellaneous Allen wrenches, keys, and two pairs 

of gloves in the vehicle. 

 The trial court denied King's pretrial motion to suppress 

the evidence, accepting the Commonwealth's argument that Hill had 

properly impounded and searched the vehicle under the community 

caretaker function. The court found Hill's decision to impound 

the vehicle "eminently sensible," given that the area where the 

stop occurred was congested.1

Analysis

In reviewing the trial court's denial of a motion to 

suppress on appeal, we will review the evidence in the light most 

favorable to the Commonwealth, the party prevailing below, 

together with all reasonable inferences that may be drawn. See

Dickerson, 35 Va. App. at 177, 543 S.E.2d at 626. The burden to 

establish that the denial of the motion to suppress constituted 

reversible error rests with the defendant. See Motley v. 

Commonwealth, 17 Va. App. 439, 440-41, 437 S.E.2d 232, 233 

(1993). The Fourth and Fourteenth Amendments to the United 

States Constitution forbid using evidence at trial obtained as a 

result of an unreasonable search and seizure, and a warrantless 

search is per se unreasonable unless it falls within one of the 

 

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1

 The Commonwealth conceded before the trial court that the 

search was not conducted incident to arrest since King was not 

placed under arrest. See Code 46.2-301. It further conceded 

that Hill did not have probable cause to search the vehicle. 

See Hollis v. Commonwealth, 216 Va. 874, 877, 223 S.E.2d 887, 

889 (1976). 
few "specifically established and well-delineated exceptions" to 

the warrant requirement. McNair v. Commonwealth, 31 Va. App. 76, 

82, 521 S.E.2d 303, 306 (1999). 

In the context of the Fourth Amendment, "'[u]ltimate 

questions of reasonable suspicion and probable cause . . . 

involve questions of both law and fact and are reviewed de novo

on appeal.'" McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 

S.E.2d 259, 261 (1997) (en banc) (quoting Ornelas v. United 

States, 517 U.S. 690, 699 (1996)). However, the appellate court 

is "bound by the trial court's findings of historical fact unless 

'plainly wrong' or without evidence to support them and [it] 

give[s] due weight to the inferences drawn from those facts by 

resident judges and local law enforcement officers." Id. at 198, 

487 S.E.2d at 261 (citing Ornelas, 517 U.S. at 699). The trial 

court's legal conclusion concerning when, or whether, a seizure 

or search occurred is reviewed de novo. See McNair, 31 Va. App. 

at 82, 521 S.E.2d at 306; see also McGee, 25 Va. App. at 198, 487 

S.E.2d at 261; United States v. Mendenhall, 446 U.S. 544, 552 

(1980). 

 In the case at bar, the Commonwealth justifies the search of 

King's car under the "community caretaking doctrine." See 

generally South Dakota v. Opperman, 428 U.S. 364 (1976); Cady v. 

Dombrowski, 413 U.S. 433 (1973). In Opperman, the car in 

question had been illegally parked in a restricted zone for at 

least seven hours, and had been issued multiple citations for 

parking violations. See Opperman, 428 U.S. at 366. The Supreme 

Court upheld the subsequent inventory search as valid, on the 

ground that the owner of the vehicle was not present to safeguard 

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his belongings, which were inside the vehicle and clearly visible 

to the police. See id. at 368. The Court stated "[i]n the 

interests of public safety and as a part of what the Court has 

called 'community caretaking functions,' automobiles are 

frequently taken into police custody." Id. The Court gave two 

examples of circumstances warranting the application of the 

doctrine: vehicles disabled or damaged in an accident, and 

vehicles in violation of parking ordinances. "To permit the 

uninterrupted flow of traffic and in some circumstances to 

preserve evidence, disabled or damaged vehicles will often be 

removed from the highways or streets at the behest of police 

engaged solely in caretaking and traffic-control activities." 

Id. Additionally, the Court noted that vehicles "violat[ing] 

parking ordinance[s] . . . jeopardize both public safety and the 

efficient movement of vehicular traffic . . . ." Id. 

 In Cady, a police officer, who was required to carry his 

service revolver at all times, had a one-car accident near a 

small town. See Cady, 413 U.S. at 433. His car crashed into a 

bridge abutment just off the highway and was disabled. The 

officer was arrested for drunk driving and removed from the 

scene. See id. The Court found the vehicle constituted a 

"nuisance on the highway" and, therefore, was properly impounded 

before a valid inventory search was conducted. See id. at 442-

43. Additionally, the Cady Court noted the responding police 

officer's concern that the driver's service revolver might be in 

the car and susceptible to theft by vandals if the car had been 

left on the highway. See id.

 The Virginia Supreme Court, in Reese v. Commonwealth, 220 

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Va. 1035, 265 S.E.2d 746 (1980), grounded the warrantless 

inventory exception to the Fourth Amendment in the same policy 

considerations identified in Opperman and Cady: the need to 1) 

protect the owner's property while it remains in police custody, 

2) protect the police against claims or disputes concerning lost 

or stolen property, and 3) protect the public and the police from 

physical danger. See Reese, 220 Va. at 1039, 265 S.E.2d at 749. 

In addition to these policy considerations, this Court has held 

that, to justify a warrantless inventory search by the police, 

the Commonwealth must show 1) the vehicle was lawfully impounded, 

2) pursuant to standard police procedures and 3) the impoundment 

and subsequent search are not a pretext concealing an 

investigatory motive. See Servis v. Commonwealth, 6 Va. App. 

506, 521, 371 S.E.2d 156, 163 (1988). 

 The validity of the impoundment is a question separate from 

the validity of the subsequent inventory search and must be 

determined first. See generally, Opperman; Cabbler v. 

Commonwealth, 212 Va. 520, 184 S.E.2d 781 (1971). Relying on 

this Court's holding in Servis, King contends his car was not 

lawfully impounded, thus invalidating the subsequent search. In 

Servis, the police responded to an attempted break-in report at a 

local motel. The officers learned from the front desk clerk that 

a car in the parking lot belonged to the defendant. See Servis, 

6 Va. App. at 511, 371 S.E.2d at 157. After finding drug 

paraphernalia in Servis' room, the police arrested him and 

brought him before a magistrate. See id. When the motel clerk 

declined to take responsibility for the defendant's car, as 

requested by police, the officer made arrangements to have the 

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car towed. In anticipation of the impoundment, he conducted an 

inventory search of the car. See id. at 512-13, 371 S.E.2d at 

158. 

 In affirming the trial court's denial of Servis' motion to 

suppress, we held that "[a] routine inventory search of a 

lawfully impounded vehicle conducted pursuant to standard police 

procedure is reasonable under the Fourth Amendment unless it is 

'a pretext concealing an investigatory motive.'" Id. at 521, 371 

S.E.2d at 163 (quoting Opperman, 428 U.S. at 368-69). We upheld 

the impoundment and subsequent inventory search on the ground the 

police could not be certain if the defendant would be released in 

time to remove the car from the motel parking lot.2

 See id. 

Furthermore, the motel clerk had asked that the car be removed 

from the motel's private property and the defendant was unable to 

comply with the request. 

 Here, Hill's subjective view that he "wouldn't put a vehicle 

there and just leave it there" does not substitute for objective 

facts establishing that the public's safety was at risk or that a 

need to safeguard the vehicle existed. Objective reasonableness 

remains the linchpin of determining the validity of action taken 

under the community caretaker doctrine. See Terry v. 

Commonwealth, 23 Va. App. 87, 90, 474 S.E.2d 172, 173 (1996). 

Moreover, the reasonableness of a search depends on the facts and 

circumstances of each case. See id. In the case at bar, King's 

vehicle was properly parked. Although the area where the stop 

occurred was described as a "very heavily congested" two-lane 

 

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2

 After 11:00 a.m., the defendant's car would have been 

parked illegally. 
street near an elementary school, a library, and other public 

buildings, the car neither obstructed the free flow of traffic, 

posed a trespassory presence on private property, nor violated 

any parking ordinances. In addition, King, the owner of the 

vehicle, was not taken into custody or removed from the scene 

and, although he could not personally drive the vehicle, the 

evidence failed to show he was unable to arrange for its removal 

to another location, or to safeguard his property. See, e.g., 

Cabbler, 212 Va. at 521, 184 S.E.2d at 782. Indeed, the record 

shows that the police made no inquiry regarding King's ability to 

make arrangements to have the car driven from Virginia to his 

home in Maryland or otherwise moved. Moreover, there is no 

evidence that, prior to impoundment, King had property in the 

car, subject to theft or vandalism. 

 The Commonwealth premises its arguments on Hill's "common 

practice" to have vehicles towed if the driver did not have 

someone available to drive it from the scene and that Hill had 

the discretion to conduct such inventory searches under 

departmental policy. However, the Fourth Amendment compels an 

analysis that is grounded in the facts of the specific case under 

investigation which, when properly conducted, discloses to the 

officer a legally-recognized basis for conducting a warrantless 

inventory search. In conducting the requisite analysis, the 

individual citizen's right to be free from unwarranted searches 

of one's person or property is to be balanced against the public 

interest in the safety and welfare of all those involved. Thus, 

a law enforcement department's general grant of authority to its 

officers to exercise discretion in impounding vehicles, of 

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necessity, incorporates Fourth Amendment principles and the 

limitations they impose on the exercise of discretion in 

conducting such searches. 

 We further note that the Commonwealth's reliance on Cabbler

and Butler v. Commonwealth, 31 Va. App. 613, 525 S.E.2d 58 

(2000), is misplaced; in those cases, the defendant was taken 

into custody and removed from the scene. In Cabbler, the 

defendant's car was parked illegally in front of a hospital, in a 

no-parking zone, partially blocking the ambulance entrance to the 

emergency room. The defendant was arrested and told his car 

would be removed for safekeeping until his release from custody. 

See Cabbler, 212 Va. at 521, 184 S.E.2d at 782. The Cabbler

Court determined the impoundment and search were lawful because 

the defendant was arrested and no immediate means were available 

to safeguard the vehicle. See id. at 522, 184 S.E.2d at 782. 

 In Butler, the police followed the defendant into the 

parking garage of an apartment complex and arrested him for 

speeding and driving with a suspended license. The defendant did 

not live in the complex, which required a parking permit for all 

parked cars, and he did not have permission as a guest to park in 

the garage. The police impounded the car after a police officerresident said the vehicle had to be moved. See Butler, 31 Va. 

App. at 617-18, 525 S.E.2d at 59-60. The Butler Court upheld the 

impoundment and search on grounds similar to those stated in 

Cabbler and recognized the right of police to "impound a vehicle 

in the possession of a person arrested away from his or her 

residence, provided there are no immediate means to protect the 

vehicle . . . ." Id. at 618, 525 S.E.2d at 60 (citing Cabbler, 

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212 Va. at 522-23, 184 S.E.2d at 782-83). 

 Finally, we disagree with the Commonwealth's position that 

the impoundment and search were justified because, 

hypothetically, someone could have tampered with or stolen the 

car had it been left on the street. To permit impoundment and 

inventory predicated solely on possible theft or vandalism would 

altogether vitiate Fourth Amendment protections. Taken to its 

logical extreme, such a doctrine would authorize an officer to 

impound any car, in any location, including those legally parked, 

at any time, because cars are always, hypothetically, subject to 

theft and vandalism. We decline to adopt such a posture. 

 Accordingly, we reverse King's convictions and remand for a 

new trial if the Commonwealth is so disposed. 

 Reversed and remanded.

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