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 Commonwealt h 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 UNPUBLISHED- 2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 marijuan a 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 violati on 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 moti on 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 cou rt 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 solel y 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 ter ms, 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 d oes 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 th e 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 ACC ORD 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 3 0, 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. N amely, 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 exi gent circumstances rather than a warrant.- 4

-

First, in Montgomery v. Commonwealth , 75 Va. App. 182 (2022), this Court h eld 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 viol ation 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 inclu de subsection F, which outlawed searches based solely on the od or 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 solel y 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 retroac tive ly a ffect ed 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 t o 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

- e nforcement 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 dialog u ing 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) n or 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

o f 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 o f 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 t he 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

s earches 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 e xplicitly 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 lan guage 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 possessi ng 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. Addi tionally, 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, 202 0 , 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 cou ld 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 sea rch 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 ab ove, the circuit court did not err by denying Hicks’ motion in limine to exclude the evidence

. Affirmed.