Antone Lamont Shields v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: April 4, 2023
• Docket: 0647221
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Humphreys, Huff and Lorish

ANTONE LAMONT SHIELDS MEMORANDUM OPINION* v. Record No. 0647-22-1 PER CURIAM APRIL 4, 2023 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Bonnie L. Jones, Judge

(Charles E. Haden, on brief), for appellant.

(Jason S. Miyares, Attorney General; Justin B. Hill, Assistant Attorney General, on brief), for appellee.

Antone Lamont Shields entered conditional guilty pleas to possession of a concealed

weapon and possession of a firearm by a violent felon. The circuit court sentenced him to a total of

five years and twelve months’ incarceration with twelve months suspended. Shields contends that

the circuit court erred in denying his motion to suppress because certain evidence was obtained in

violation of Code § 4.1-1302(A).1 After examining the briefs and record in this case, the panel

unanimously holds that oral argument is unnecessary because “the appeal is wholly without merit.”

Code § 17.1-403(ii)(a); Rule 5A:27(a).

* This opinion is not designated for publication. See Code § 17.1-413. 1 The legislature repealed Code § 18.2-250.1 and recodified the provisions relevant to this case at Code § 4.1-1302. 2021 Va. Acts Sp. Sess. I cc. 550-51. BACKGROUND

“On an appeal of a circuit court’s denial of a motion to suppress, this Court reviews the

evidence in the light most favorable to the Commonwealth.” Montgomery v. Commonwealth, 75

Va. App. 182, 187 (2022).

On April 4, 2017, City of Hampton Police Detective Robertson was driving eastbound on

West Weaver Road behind another vehicle. Smelling the odor of marijuana through his air

conditioning ventilation system, Detective Robertson initiated a traffic stop and removed the car’s

occupants, including Shields, a rear seat passenger. Detective Robertson searched Shields and

found a firearm in his waistband. Detective Robertson learned that Shields was a convicted violent

felon.

Shields moved to suppress the evidence of the firearm, arguing that it was obtained in

violation of Code § 4.1-1302(A), which prohibits searches based on the odor of marijuana and

deems any evidence obtained by violating that prohibition inadmissible. Shields acknowledges that

the legislature enacted the section subsequent to his search but argues that the section applies

retroactively. The circuit court denied Shields’ motion, finding that the legislature did not intend for

the section to apply retroactively. Following the circuit court’s ruling, Shields entered conditional

guilty pleas to the charges, and Shields now appeals.

ANALYSIS

Shields argues that the circuit court erred in denying his motion to suppress because Code

§ 4.1-1302(A) prohibits the police from conducting searches based on the odor of marijuana and

deems any evidence obtained from violating that prohibition inadmissible at any trial, hearing, or

other proceeding. Shields asserts that although the search took place before the legislature enacted

the section, the section applies retroactively.

-2- Code § 4.1-1302(A) provides the following prohibitions:

No law-enforcement officer . . . 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.

On appeal from the denial of a motion to suppress, this Court “determine[s] whether the

accused has met his burden to show that the trial court’s ruling, when the evidence is viewed in the

light most favorable to the Commonwealth, was reversible error.” Merid v. Commonwealth, 72

Va. App. 104, 108 (2020) (quoting Cantrell v. Commonwealth, 65 Va. App. 53, 56 (2015)). “When

the relevant facts are undisputed on appeal . . . the issue is a pure question of law subject to de novo

review.” Street v. Commonwealth, 75 Va. App. 298, 304 (2022). “Whether a statute should be

applied retroactively is also a question of law that an appellate court reviews de novo.” Id.

“The ‘usual rule’ regarding a new statute is ‘that legislation is . . . prospective’ only.” Id. at

305 (alteration in original) (quoting Martin v. Hadix, 527 U.S. 343, 357 (1999)). Retroactive

application of statutes is disfavored. Id. “A statute is retroactive only if the legislature includes an

express provision or other clear language indicating that it applies retroactively.” Id.

In Street, we held that Code § 4.1-1302(A) did not apply retroactively. Id. at 311. Instead

of finding a statement indicating that the legislature intended for the statute to apply retroactively,

the Court found the opposite. Id. at 307. We held that the statute excluded evidence that was

obtained “pursuant to a violation of this subsection.” Id. (emphasis added) (quoting Code

§ 4.1-1302(A)). Like in Street, when Detective Robertson seized Shields’ vehicle and searched him

in 2017, “that search did not and could not violate the nonexistent statute.” Id. at 309.

Consequently, Shields cannot invoke the remedy provided by the statute.

Additionally, we note that “[u]nder our rule of interpanel accord . . . [t]he decision of one

panel ‘becomes a predicate for application of the doctrine of stare decisis’ and cannot be overruled -3- except by the Court of Appeals sitting en banc or by the Virginia Supreme Court.” Clinchfield Coal

Co. v. Reed, 40 Va. App. 69, 73 (2003) (quoting Johnson v. Commonwealth, 252 Va. 425, 430

(1996)). Therefore, we must adhere to the holding in Street.

CONCLUSION

The circuit court did not err in denying Shields’ motion to suppress because Code

§ 4.1-1302(A) did not apply at the time of the search. Accordingly, we affirm the circuit court’s

judgment.

Affirmed.

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