COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Causey and Senior Judge Clements

Argued at Richmond, Virginia

BRADLY ELLSWORTH HICKS 

MEMORANDUM OPINION* BY

v. Record No. 1147-21-2 JUDGE ROBERT J. HUMPHREYS

AUGUST 30, 2022

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Bradley B. Cavedo, Judge

Aaron C. Forstie, Senior Assistant Public Defender, for appellant.

Ken J. Baldassari, Assistant Attorney General (Jason S. Miyares, 

Attorney General, on brief), for appellee.

Bradly Ellsworth Hicks was stopped by police while driving and his vehicle was searched 

due to the odor of marijuana emanating from it. Officers found a firearm in Hicks’ vehicle, and 

he was arrested for violating Code § 18.2-308.2, possession of a firearm after being adjudicated 

delinquent as a juvenile at the time of the offense of a delinquent act which would be a felony if 

committed by an adult. Hicks made a motion in limine to suppress the evidence found in his 

vehicle, which was denied, and Hicks was ultimately convicted of violating Code § 18.2-308.2. 

He now appeals the circuit court’s denial of his motion in limine.

I. BACKGROUND

On April 25, 2019, Virginia Commonwealth University (“VCU”) Police Officer Quiles 

noticed a vehicle being driven without headlights. Officer Quiles indicated that the driver, 

Hicks, should pull over, which he did. When Officer Quiles approached Hicks’ vehicle, she 

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

UNPUBLISHED
- 2 -

noticed the odor of marijuana was emanating from it. Officer Quiles searched the vehicle to find 

the origin of the marijuana odor. In the course of her search, she found a firearm underneath the 

driver’s seat. 

Hicks was subsequently arrested for possession of a firearm in violation of Code 

§ 18.2-308.2 because he had previously been adjudicated delinquent of an offense that would 

have been a felony if committed by an adult. Hicks was indicted by a grand jury for the 

aforementioned violation. 

On June 29, 2021, Hicks filed a motion in limine to exclude the evidence obtained from 

the search of his vehicle, namely, the firearm. Hicks argued that Code § 4.1-1302(A)—which 

prohibits stops, searches, and seizures solely on the basis of the odor of marijuana and requires 

the circuit court to exclude evidence discovered or obtained in violation of the statute—barred 

the Commonwealth from using any evidence resulting from the vehicular search. The 

Commonwealth conceded in the circuit court that the search of Hicks’ vehicle was based solely 

on the odor of marijuana. 

The circuit court denied Hicks’ motion in limine to exclude the evidence that resulted 

from the search. The circuit court said,

The effective date of the statute, Code § 4.1-1302, [was] July first 

of this year, and by its terms, the law is now that where there’s a 

search based on, solely on, the odor of marijuana, no evidence 

discovered or obtained pursuant to a violation of this subsection 

shall be admissible in any trial. And I agree . . . the plain reading 

of the statute does not support retroactive application for the 

simple reason that this statute has not been violated. So, I’m going 

to deny the motion in limine.
- 3 -

The circuit court declined to decide whether Code § 4.1-1302(A) was substantive or 

procedural, stating, “I don’t think I need to get there,” and “I’m just going by the law in the 

books today, and it hasn’t been violated.”1 

On October 8, 2021, Hicks entered a plea agreement wherein he pled guilty to possession 

of a firearm by a non-violent felon but preserved his ability to appeal the circuit court’s denial of 

his motion in limine. The circuit court sentenced Hicks to five years’ incarceration with two 

years and six months suspended. 

This appeal followed.

II. ANALYSIS

A. STANDARD OF REVIEW

“When challenging the denial of a motion to suppress evidence on appeal, the defendant 

bears the burden of establishing that reversible error occurred.” Mason v. Commonwealth, 291 Va. 

362, 367 (2016). In this case, the only issue is the circuit court’s interpretation of Code 

§ 4.1-1302(A). “With respect to issues arising from the trial court’s interpretation of a statute, we 

apply a de novo standard of review.” Lopez v. Commonwealth, 73 Va. App. 70, 77 (2021). 

B. THE INTERPANEL ACCORD DOCTRINE

Two panels of this Court have recently heard and decided appeals requiring statutory 

interpretation of Code § 4.1-1302(A) and its predecessor, Code § 18.2-250.1(F).2 

1 Hicks also filed a motion to suppress the evidence in which he argued that officers 

asked him questions without giving him his Miranda rights. The circuit court denied Hicks’

motion to suppress on Miranda grounds, and he does not appeal that decision.

2 From March 1 to June 30, 2021, Code § 18.2-250.1(F) was in effect. On July 1, 2021, 

the General Assembly repealed Code § 18.2-250.1(F) and enacted essentially the same statute, 

with nominal changes, at Code § 4.1-1302(A). See 2021 Va. Acts Spec. Sess. I, chs. 550-51, cls. 

1, 3, 8. Namely, Code § 18.2-250.1(F) did not contain the language “and no search warrant may 

be issued.” That language is not relevant in this case because, as in Street v. Commonwealth,

___ Va. App. ___ (Aug. 2, 2022), this case involves a search supported by exigent circumstances 

rather than a warrant.
- 4 -

First, in Montgomery v. Commonwealth, 75 Va. App. 182 (2022), this Court held that 

Code § 18.2-250.1(F) represents an expansion of a substantive right to be free from a search 

based solely on the odor of marijuana and the express intent of the legislature was only to 

prohibit use of evidence when the evidence is obtained in violation of that prohibition, 

precluding a retroactive application to searches conducted prior to the statute’s enactment. Id. at 

200. In 2018, Montgomery was pulled over by police for driving with his headlights on high 

beam. Id. at 188. When police stopped his vehicle, they smelled marijuana, and the officers 

searched Montgomery’s car to find the source of the odor. Id. During the search, the officers 

found a backpack containing marijuana, and Montgomery was subsequently arrested and 

indicted for possession of marijuana with intent to distribute. Id. After Montgomery’s arrest and 

indictment, Code § 18.2-250.1 was amended to include subsection F, which outlawed searches 

based solely on the odor of marijuana. 2020 Va. Acts. ch. 51. The amended statute read:

F. No law-enforcement officer, as defined in § 9.1-101, may 

lawfully stop, search, or seize any person, place, or thing solely on 

the basis of the odor of marijuana and no evidence discovered or 

obtained pursuant to a violation of this subsection, including 

evidence discovered or obtained with the person’s consent, shall be 

admissible in any trial, hearing, or other proceeding. 

Following the statute’s amendment, Montgomery moved to suppress the marijuana found 

by police, arguing that the above statute prohibited its use as evidence in a criminal trial against 

him. Montgomery, 75 Va. App. at 188. Following a hearing on May 14, 2021, the circuit court 

denied Montgomery’s motion and he appealed that decision to this Court. Id. at 189.

On appeal, this Court interpreted Code § 18.2-250.1(F)—which was later repealed when 

Code § 4.1-1302 was enacted—to determine whether it retroactively affected the search and 

seizure of Montgomery’s vehicle. Id. at 193-99. The Court found that Code § 18.2-250.1(F) did 

not contain statutory language clearly making the statute retroactively applicable. Id. at 194. 

The Montgomery Court noted that the statute’s exclusionary rule only applied to evidence 
- 5 -

discovered or obtained in violation of that subsection, and because the statute did not exist at the 

time of the search, the search was not illegal. Id. at 195-96. This Court held that the search rule 

was not purely procedural because it was an expansion of the scope of the Fourth Amendment 

right to be free from unreasonable searches. Id. at 198. This Court ultimately declined to 

retroactively attach new consequences to a search that had already taken place prior to the 

enactment of Code § 18.2-250.1(F), noting that to so do would “ignore prior precedent and 

drastically expand the concept of retroactively applying statutory changes to the Code of 

Virginia.” Id. at 199. 

Second, in Street v. Commonwealth, ___ Va. App. ___, ___ (Aug. 2, 2022), this Court 

interpreted the same statute under which Hicks’ argument arises, Code § 4.1-1302(A). Code 

§ 4.1-1302(A), the statute at issue in that case, reads as follows:

No law-enforcement officer, as defined in § 9.1-101, may lawfully 

stop, search, or seize any person, place, or thing and no search 

warrant may be issued solely on the basis of the odor of marijuana 

and no evidence discovered or obtained pursuant to a violation of 

this subsection, including evidence discovered or obtained with the 

person’s consent, shall be admissible in any trial, hearing, or other 

proceeding.

In Street, in November of 2019, Street was stopped by police because his vehicle’s 

registration had expired. Street, ___ Va. App. at ___. While dialoguing with Street, a police 

officer smelled the odor of marijuana coming from his vehicle. Id. at ___. As a result of the 

odor, the officer searched the vehicle and found a firearm. Id. at ___. Street had a prior felony 

conviction and was subsequently indicted and convicted of violating Code § 18.2-308.2. Id. at 

___. In August 2021, Street made a pretrial motion to suppress the evidence of the firearm, 

asserting that Code § 4.1-1302(A) made the search unlawful and rendered the firearm and 

Street’s related statements inadmissible at trial. Id. at ___. The circuit court denied the motion. 
- 6 -

On appeal, this Court noted that “[k]ey to [the] case” was that neither Code 

§ 18.2-250.1(F) nor Code § 4.1-1302(A) were “in effect at the time of the 2019 search in which 

the firearm was found in the appellant’s vehicle.” Id. at ___. Like Montgomery’s interpretation 

of Code § 4.1-1302(A)’s predecessor, Code § 18.2-250.1(F), Street held that the statute in 

question did not contain an express statement indicating that it was to be applied retroactively. 

Id. at ___. Street also held that the language in the first part of Code § 4.1-1302(A)—forbidding 

searches, etc. due to the odor of marijuana and forbidding admission of evidence obtained in 

violation of that mandate—specifically controls and limits the meaning of the phrase “any trial, 

hearing, or other proceeding” in the second part. Id. at ___. “As a result, the meaning of the 

phrase ‘any trial, hearing, or other proceeding’ applies only to the events described.” Id. at ___. 

The Street Court concluded that, like in Montgomery, because the statutory prohibition on 

searches based solely on the odor of marijuana could not be violated before Code § 4.1-1302(A) 

or its predecessor took effect, “the General Assembly provided clear instruction that the 

accompanying exclusionary provision applies only prospectively.” Id. at ___ (emphasis added). 

As a result of the statute’s prospective application, Street held the circuit court did not err by 

denying the appellant’s motion to suppress the evidence obtained a result of the search of his 

vehicle. Id. at ___. 

Street also explicitly rejected the same argument that Hicks makes here: that Code 

§ 4.1-1302(A) is purely procedural. Code § 1-239 does provide that “proceedings thereafter 

held” following a “new act of the General Assembly takes effect . . . shall conform, so far as

practicable, to the laws in force at the time of such proceedings.” Id. at ___ (quoting Code 

§ 1-239). This Court determined, however, that the remedy prong of Code § 4.1-1302(A) is 

limited by the unambiguous language restricting its application to violations of the search 

prohibition, and that statutory prohibition could not be violated prior to the statute’s enactment. 
- 7 -

Id. at ___. “Consequently, based on the express language of the statute, it is impossible, and 

therefore not ‘practicable’ as that term is used in Code § 1-239, to apply the exclusionary 

provision (the remedy prong) of Code § 4.1-1302(A) in this case.” Id. at ___ (citing 

Montgomery, 75 Va. App. at 199). 

Street and Montgomery are controlling in Hicks’ appeal due to the interpanel accord 

doctrine. See White v. Commonwealth, 67 Va. App. 599, 612 n.7 (2017). “A holding by one 

panel of the Court of Appeals of Virginia ‘bind[s] all other three-judge panels under the 

interpanel accord doctrine.’” Id. (quoting Startin v. Commonwealth, 56 Va. App. 26, 39 n.3 

(2010) (en banc)). A decision of one panel protected by the interpanel accord doctrine cannot be 

overruled except by the Court of Appeals sitting en banc or by the Supreme Court of Virginia. 

Id. (quoting Congdon v. Congdon, 40 Va. App. 255, 265 (2003)). 

The facts of the present case are strikingly similar to those in Street. In this case, as in 

Street, Hicks was pulled over for a traffic infraction. While he was stopped, the officer smelled 

marijuana, which was illegal at the time, and the officer searched Hicks’ vehicle to find the 

source of the odor.3 As in Street, the officer found a firearm in Hicks’ vehicle, which Hicks was 

barred from possessing due to his earlier conviction for an offense that would have been a felony 

if committed by an adult. Like the defendant in Street, Hicks signed a conditional guilty plea 

that preserved his right to appeal the circuit court’s denial of his motion. Additionally, as in 

Street, Hicks’ sole assignment of error asserts that the circuit court erred by refusing to 

3 Code § 18.2-250.1 criminalized simple possession of marijuana until July 1, 2020, when 

it became a civil offense. 2020 Va. Acts. ch. 1285. Hicks was pulled over and his vehicle 

searched on April 25, 2019, when a conviction of possession of marijuana was still a criminal 

misdemeanor offense. See Code § 18.2-250.1 (“It is unlawful for any person knowingly or 

intentionally to possess marijuana . . . [a]ny person who violates this section is guilty of a 

misdemeanor and . . . a second or subsequent conviction of a violation of this section[] is . . . a 

Class 1 misdemeanor.”).
- 8 -

retroactively apply Code § 4.1-1302(A) and allowing the firearm found during the police search 

to be admitted.

In sum, the issue presented in Hicks’ case is indistinguishable from the issue presented in 

Street v. Commonwealth, and it is very similar to the statutory interpretation issue in 

Montgomery v. Commonwealth. When the search of Hicks’ vehicle took place in 2019, that 

search “did not and could not violate the nonexistent statute.” Street, ___ Va. App. at ___. 

Consequently, the exclusionary remedy found in Code § 4.1-1302(A) is limited by the right that 

new statute created, and because there was no right to be free from a marijuana-based search in 

2019, the firearm found in Hicks’ car was admissible as evidence. Pursuant to Street’s holding, 

the exclusionary provision of Code § 4.1-1302(A) did not entitle Hicks, whose vehicle was 

searched prior to the enactment of that statute, to have the evidence from the search excluded

because the statute does not apply retroactively to the time of the search. Additionally, Hicks’ 

argument that Code § 4.1-1302(A) is purely procedural and should have barred admission of the 

evidence is precluded by Street’s explicit holding that the same statute is not purely procedural 

within the meaning of Code § 1-239.

III. CONCLUSION

For the reasons stated above, the circuit court did not err by denying Hicks’ motion in 

limine to exclude the evidence.

Affirmed.