Virginia Lawyers Weekly VA Lawyers Weekly
Where police stopped appellant because he was out after a curfew imposed in connection with a city’s declaration of a state of emergency, drugs found in the vehicle were admissible evidence.
Appellant’s argument that the stop was invalid because he might have qualified under one the curfew’s exceptions is not well taken.
Valid stop
“Deputy Cabrera stopped Turner within minutes of Turner’s leaving the motel parking lot and pulling out onto the streets of Fredericksburg around 1:00 a.m. during what had been established as emergency curfew hours.
“Deputy Cabrera testified that he stopped Turner based on Turner’s apparent curfew violation, given that the city’s emergency order expressly provided that “’no person shall be present on any street, road, alley, avenue, park, or other public place in the City of Fredericksburg’ between 8:00 p.m. and 6:00 a.m. (Emphasis added).
“Moreover, the emergency order expressly made any violation, including any curfew violation, punishable as a Class 1 misdemeanor.
“Turner argues that the officers lacked sufficient reason to believe that he had violated curfew, given that they did not know whether he fell within one of the stated exceptions.
“Specifically, in his motion to suppress, Turner argued that the stop of his vehicle was constitutionally invalid because he ‘could have been engaged in any one of the numerous curfew exceptions,’ such as those for persons traveling to and from home, work, or places of worship.
“However, as the trial judge aptly noted from the bench in this case, ‘There is no other way for the officer to make that distinction’ than to initiate a traffic stop. Accepting Turner’s argument would permit the curfew exceptions to entirely swallow the rule.
“Imposing an obligation to somehow determine whether a curfew exception applies to a person seen driving during prohibited hours before a stop could even be made to briefly investigate the reason for driving during the curfew would eviscerate the city’s ability to enforce the curfew in the first place. …
“The Fourth Amendment does not compel such an unworkable requirement. ‘Reasonable suspicion need not rule out the possibility of innocent conduct.’”
Sufficient evidence
Turner argues that there was insufficient evidence of his intent to distribute PCP.
“However, Turner actually admitted that he had distributed PCP on the same evening that he was arrested when he told the officers that he ‘had sold to somebody approximately two to three hours’ earlier and that he sold PCP ‘to support his habit.’
“He also specifically stated that he sold ‘three dippers’ to an individual for fifteen dollars each, and even testified that he offered to show the officers information on his cell phone that would prove exactly when the sales occurred.
“Although Turner insisted at trial that he fabricated this confession because he feared the police, the trial court, sitting as factfinder, was free to reject Turner’s testimony.”
Affirmed.
Turner v. Commonwealth, Record No. 1103-21-2, Sept. 20, 2022. CAV (Beales). From the Circuit Court of the City of Fredericksburg (Sharp) James Joseph Ilijevich for appellant. Justin B. Hill, Jason S. Miyares for appellee. VLW 022-7-391, 10 pp.
