Virginia Lawyers Weekly//October 19, 2021
Virginia Lawyers Weekly//October 19, 2021//
The police paraphernalia and equipment discovered in appellant’s Crown Victoria police interceptor model after he was seized was properly admitted at his trial for impersonating a police officer. The evidence was relevant to his intent. His conviction is affirmed.
Two detectives in an unmarked police car saw what appeared to be another unmarked police car stopped at an intersection. The vehicle, driven by appellant, was a white Crown Victoria police interceptor model and had a “Police Interceptor” decal. But the license plate, “SPC-COP,” indicated private ownership instead of a Virginia Beach Police Department vehicle.
As the detectives drove past appellant’s vehicle, he changed lanes, maneuvered around the detectives, nearly caused an accident and began to tailgate another vehicle. He then went around the vehicle and began swerving at high speed.
As appellant approached another vehicle, the detectives saw his emergency red taillights flashing like alternating strobe lights and observed inactivated lights in the rear window. Evidence at trial indicated appellant’s front headlights were strobing as well.
Appellant drove more than 100 yards with the lights strobing. A motorist who appellant was following slowed down “dramatically” as a result.
The detectives called for backup and stopped appellant. Appellant told one of the detectives that he had a gun in a backpack next to him on the front seat. One of the detectives searched the bag, found a gun, noticed appellant smelled of alcohol and arrested him.
Police impounded appellant’s Crown Victoria. An inventory search revealed a toggle switch that activated strips of blue LED lights on the front and back windows. The search also revealed law enforcement items in the trunk, including various LED light bars, a spotlight, a 14-inch flashlight labeled “Police Security,” a “K-9” dog vest, a dog muzzle, gloves and a sunglasses case labeled “Police.”
In the front of the vehicle, police found a badge bearing the words “Special Officer,” inspection forms, and appellant’s concealed weapon permit.
At trial, appellant objected to the admission of all items uncovered during the inventory search. The commonwealth argued the evidence was relevant to show intent. The trial court agreed and found appellant guilty of pretending to be a police officer and possessing a concealed weapon while intoxicated.
Appellant argues on appeal that there was insufficient evidence to convict.
“Appellant was convicted of violating Code § 18.2-174, which reads, ‘Any person who falsely assumes or exercises the functions, powers, duties, and privileges incident to the office of sheriff, police officer, marshal, or other peace officer, or any local, city, county, state, or federal law-enforcement officer, or who falsely assumes or pretends to be any such officer, is guilty of a Class 1 misdemeanor.’ …
“Under the plain language of this statute, a person can be convicted for impersonating a police officer if he does one of two things (or a combination of both): (1) he falsely exercises the privileges ‘incident to’ one’s position as a law enforcement officer (the ‘privileges clause’) or (2) he falsely ‘assumes or pretends’ to be a law enforcement officer (the ‘pretending clause’). …
“Appellant was convicted under the pretending clause[.] … [W]hat is clear from the statutory phrase ‘falsely … pretends’ is that to be convicted under the statute, a person, at a minimum, must generally intend to do some act that falsely gives him the appearance of being a law enforcement officer.
“What is less clear is whether the statutory phrase imposes an additional requirement that the accused have the specific intent to deceive another into believing he is a law enforcement officer.” Courts have reached opposing conclusions on this point.
“[T]his Court need not resolve the question whether the pretending clause contains a specific intent requirement today. Even assuming without deciding that the clause does contain a specific intent requirement, the evidence against appellant is sufficient to show that he not only generally intended to give himself the appearance of being a police officer, but that it was his specific intent to deceive others into believing he possessed that status.”
“Appellant correctly observes that he never used any of the items of the post-seizure evidence while driving his vehicle. For that reason, none of the post-seizure evidence would have been relevant to determining whether appellant committed the actus reus of the crime at issue.
“But assuming, as this Court does, that the statute imposes a specific intent requirement, then this Court cannot say the trial court abused its discretion in determining that the post-seizure evidence was probative of that intent.
“A simple question demonstrates the point: could a reasonable jurist conclude that a person driving a vehicle loaded with police paraphernalia is more likely to intend that his actions persuade others that he is a police officer than a person without such paraphernalia?
“Certainly. Just as the possession of firearms, scales, and baggies can be illuminative of a person’s intention to distribute drugs, so too can the possession of police gear be illuminative of a person’s intent to make others believe he is a police officer. …
“Therefore, in determining that the post-seizure evidence was relevant to appellant’s intent, the trial court did not exceed the bounds of what reasonable jurists could conclude.”
As to whether there was sufficient evidence of the actus reus, “the totality of appellant’s conduct paints the picture of an individual who:
“(1) drove a vehicle that had the appearance of being an unmarked police vehicle,
“(2) equipped that vehicle with red, white, and blue emergency lights,
“(3) flashed the vehicle’s red and white lights,
“(4) operated the vehicle in a manner similar to a police officer conducting a traffic stop, and
“(5) caused a motorist to respond as people often do when they submit to lawful police authority.
“Accordingly, there was sufficient evidence for the trial court to rationally conclude that appellant committed the actus reus of giving himself the appearance of being a police officer.
“And for that reason, together with the evidence that supported the trial court’s conclusion that appellant had the specific intent to make others believe he was a police officer, this Court leaves appellant’s conviction under Code § 18.2-174 undisturbed.”
Further, there was sufficient evidence to convict appellant of carrying a concealed weapon while intoxicated.
Morgan v. Commonwealth, Record No. 1139-20-1, Oct. 5, 2021. (CAV) Huff. Adam M. Carroll for appellant; Sharon M. Carr for appellee. VLW 021-7-138, 18 pp. Published.