Where police stopped appellant’s vehicle in 2019 for a burned out taillight, he is not entitled to retroactive application of a 2021 change in the law that would have made the stop illegal.
A shotgun in plain view in the vehicle was admissible evidence at appellant’s trial for being a felon in possession of a firearm.
Appellant Bolden “argues the trial court erred in denying his motion in limine to exclude the evidence because the police obtained it in violation of Code § 46.2-1013(B).
“He contends that subsection (B) of Code § 46.2-1013, which took effect March 1, 2021, applied retroactively and rendered inadmissible the evidence the police seized in 2019. …
“The enactment of subsection (B) of Code § 46.2-1013 occurred after the date of Bolden’s traffic stop but before the date of his trial. Bolden argues that Code § 46.2-1013(B) is procedural in nature, applies retroactively, and therefore prohibits the Commonwealth from introducing any evidence discovered as a result of the stop.
“Our recent precedent compels us to disagree. …
“This Court recently examined whether a statute prohibiting police stops for expired registration applied retroactively to suppress evidence obtained in violation of the statute. Like Code § 46.2-1013(B), the statute in Hogle v. Commonwealth, 75 Va. App. 743 (2022), provided that any evidence obtained as a result of such an illegal stop or seizure was inadmissible in court.
“There we found that the exclusionary provision ‘did not entitle Hogle to the suppression of the evidence obtained and discovered as a result of the stop of his vehicle in 2019 because the subsection, by its express terms, did not apply retroactively to the time of the stop.’ …
“In Montgomery v. Commonwealth, 75 Va. App. 182, 200 (2022), we found that Code § 18.2-250.1(F), which concerned a search based on the odor of marijuana and has since been repealed, did not apply to a search that the police conducted before the effective date of the subsection, which also provided that any evidence obtained as a result of such an illegal stop or seizure was inadmissible in court.
“To the extent the stop of Bolden’s car based upon the defective tail light would be unlawful under the current Code § 46.2-1013(B), that provision did not take effect until March 1, 2021.
“When Officer Waterman stopped Bolden in December of 2019, the evidence uncovered was not ‘the result of a stop in violation of th[e] subsection because one cannot violate a statute or break a rule that does not exist. Because the [subsection] was not in effect at the time of the search, no law enforcement officer could have violated it.’ …
“In both Hogle and Montgomery, the same procedural argument was made and, as we concluded there, the illegal seizure prong of Code § 46.2-1013(B) ‘is not procedural as it is completely silent on the method of obtaining redress or the enforcement of the right it creates; instead, the scope of the entire [subsection] is both substantive and procedural.’…
“Thus, the seizure prohibition in Code § 46.2-1013(B) ‘is a substantive change in the law and cannot be applied retroactively to render’ the stop of Bolden’s car illegal, because ‘the evidentiary prong of the statute, though procedural, is only triggered by a … seizure that violated the substantive portion of the statute.’ ….
“The exclusionary provision of Code § 46.2-1013(B) thus did not entitle Bolden to the suppression of the evidence obtained and discovered as a result of the stop of his vehicle in 2019 because the subsection did not apply retroactively to the time of the stop.”
Bolden v. Commonwealth, Record No. 0999-22-3, May 16, 2023. CAV (unpublished opinion) (White). From the Circuit Court of the City of Lynchburg (Yeatts). Michael C. Keenan for appellant. Jason D. Reed, Jason S. Miyares, Robin M. Nagel for appellee. VLW 023-7-169, 7 pp.