Sandy Leon Brown v. City of Danville

• Court: Court of Appeals of Virginia
• Decided: May 9, 1995
• Docket: 0263943
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Koontz and Willis Argued at Salem, Virginia

SANDY LEON BROWN

v. Record No. 0263-94-3 MEMORANDUM OPINION * BY JUDGE JERE M. H. WILLIS, JR. CITY OF DANVILLE MAY 9, 1995

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE Kenneth M. Covington, Judge Designate Mark T. Williams (Williams, Stilwell, Morrison, Williams and Light, on brief), for appellant.

Robert L. Adams, Jr., Assistant Commonwealth's Attorney (William H. Fuller, III, Commonwealth's Attorney, on brief), for appellee.

The Danville City Ordinance, under which Sandy Leon Brown

was prosecuted and convicted, was valid as to the charge against

him. However, because Brown was seized in violation of the

Fourth Amendment, we reverse the judgment of the trial court and

dismiss the charge against him.

I.

Brown was charged with a violation of Danville City

Ordinance § 21-49.3 which prohibited operating a motor vehicle

while under the influence of alcohol. He contends that the

ordinance was invalid because it failed to incorporate the

enhanced penalty provisions contained in the July 1, 1993

amendment to Code § 18.2-270 and thus did not satisfy the * Pursuant to Code § 17-116.010 this opinion is not designated for publication. requirements of Code § 15.1-132. The July 1, 1993 amendment to

Code § 18.2-270 set forth an enhanced penalty in circumstances

not involved in Brown's case. The ordinance in effect at the

time of his arrest conformed with general law insofar as the

circumstances of his case were concerned. He cannot assert

invalidity of an aspect of the ordinance that has no application

to his case. See Sos v. Commonwealth, 14 Va. App. 862, 865, 419

S.E.2d 426, 428 (1992). II. When the police stop a motor vehicle and detain an occupant, this constitutes a "seizure" of the person for Fourth Amendment purposes, even though the function of the stop is limited and the detention is brief. . . . [A] person may be detained briefly for questioning by an officer who has "'a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.'"

The totality of the circumstances must be considered in determining whether the facts authorize the police to stop a person. The detaining officer "'must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.'"

Zimmerman v. Commonwealth, 234 Va. 609, 611-12, 363 S.E.2d 708,

709 (1988) (citations omitted). See also Castaneda v.

Commonwealth, 7 Va. App. 574, 376 S.E.2d 82 (1989) (en banc).

The arresting officer testified that a city employee had

reported that Brown had given him "a problem about where he

wanted to park his vehicle." The officer testified that he

stopped Brown "to see what was wrong." He articulated no

- 2 - suspicion of any particular criminal conduct. He described no

circumstances supporting a reasonable suspicion of criminal

conduct. Thus, in stopping Brown's vehicle and detaining Brown,

the officer effected a seizure that violated the Fourth

Amendment.

The judgment of the trial court is reversed and the charge

against Brown is ordered dismissed.

Reversed and dismissed.

- 3 -