Commonwealth v. Brown

378 S.E.2d 623, 8 Va. App. 41, 5 Va. Law Rep. 2091, 1989 Va. App. LEXIS 22

• Court: Court of Appeals of Virginia
• Decided: April 3, 1989
• Docket: Record No. 1286-88-1
• Status: Published

Opinions

Opinion

BARROW, J.

This is an interlocutory appeal by the Commonwealth from an order suppressing evidence of cocaine found on the defendant when law enforcement officers searched him. We conclude that we may not entertain this appeal because the trial court’s suppression order is not one which the Commonwealth is permitted to appeal. Code § 19.2-398; Commonwealth v. Ragland, 7 Va. App. 452, 453, 374 S.E.2d 183, 183 (1988).

Generally, the Commonwealth may not appeal “a case involving the life or liberty of a person.” Va. Const, art. VI, § 1. See also Commonwealth v. Smith, 230 Va. 354, 357, 337 S.E.2d 278, 279 (1985). It may not do so even indirectly. Hart v. Commonwealth, 221 Va. 283, 290, 269 S.E.2d 806, 811 (1980). An exception to this prohibition allows the Commonwealth to appeal from an order suppressing evidence at trial on the grounds that it has been obtained in violation of “the provisions of the Fourth, Fifth or Sixth Amendments to the Constitution of the United States or Art. I, Sections 8, 10 or 11 of the Constitution of Virginia.” Va. Const, art. VI, § 1; Code § 19.2-398 et seq.

The trial court’s order in this case was not based on a violation of a provision of the Virginia or United States Constitutions, but was based on Code § 19.2-83, which limits the authority of a police officer to stop, question and search a suspicious person. See also Code § 19.2-60 (suppression of property unlawfully seized). While the trial court’s opinion letter described the search as “statutorily and constitutionally flawed,” the trial court’s opinion concluded only that the motion was sustained “because the facts of this case do not justify an 18.2-93 [sic]¹ stop or ‘intervention.’ ”

The trial court’s decision to suppress the evidence rested on a determination, erroneous or not, that the evidence had been seized in a search conducted contrary to statute, not contrary to the Virginia or the United States Constitutions. The Commonwealth’s right to appeal is limited to suppression orders granted on the basis of violation of specific provisions of the United States Constitution and the Virginia Constitution. Therefore, the Commonwealth has no right to appeal this decision and we have no authority to review its correctness. See Commonwealth v. Ragland, 7 Va. App. at 453, 374 S.E.2d at 183.

The constitutional and statutory authority for Commonwealth appeals is narrowly circumscribed. It was not enacted to allow Commonwealth appeals from all allegedly erroneous pre-trial rulings by the trial court. Even if the trial court’s ruling was erroneous, was non-responsive and exceeded the bounds of the relief requested, and even if it was intended to frustrate the Commonwealth’s right of appeal, these facts do not provide a basis for the exercise of this Court’s appellate jurisdiction. Until such time as the Constitution and Code are amended to authorize Commonwealth appeals from orders suppressing evidence on statutory grounds, this ruling, even if erroneous, must stand.

For these reasons, we conclude that the Commonwealth may not appeal the order of the trial court, and we dismiss the appeal.

Dismissed.

1 The reference to Code § 18.2-93 was apparently a typographical error intended to refer to Code § 19.2-83 since the opinion discusses only the application of Code § 19.2-83.