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Description: City of Virginia Beach, Virginia, criminal defense lawyer represented the Defendant charged with drug possession.

Around 1:20 a.m. on January 5, 2023, Virginia Beach Police Officer Christopher Grimm was surveilling a house that police suspected was involved in "narcotics activity." The house shared a driveway with another home. Grimm observed a 1996 white Cadillac with antique license plates leave from the shared driveway, although Grimm could not tell if the driver had come from the house under surveillance. Stamps was driving the white Cadillac.

Grimm followed Stamps's car. After about seven blocks, Stamps drove onto Interstate 264. The Cadillac had license plates issued for an antique motor vehicle. See Code § 46.2-730. But when Grimm checked the Cadillac's tag number against DMV records, he could not find a match. The dispatcher confirmed that the antique license plates were not issued for that car. Grimm activated his emergency lights, and Stamps pulled over on the shoulder of the interstate. Stamps was the only one in the car.

When Grimm asked for his driver's license, Stamps presented his California identification card. Stamps said that he had not yet registered the car because he had only recently bought it. Grimm saw that the Virginia safety-inspection sticker on the car had expired. As Officers Klepacz and Cheatham arrived at the scene, Grimm returned to his cruiser to obtain more information about Stamps's identification.

In response to questioning from Klepacz, Stamps denied having any guns or drugs in the car. Stamps declined Klepacz's request for permission to search the car. Klepacz later admitted that he regularly asks for consent to search cars because he hopes to find drugs and weapons. The officers conferred among themselves about the possibility of calling a drug-sniffing dog to the scene, but no canine units were on duty at the time.

Klepacz reported to Grimm that Stamps would not consent to a search. By that time, however, Grimm had learned that Stamps's California driver's license had expired and that Stamps did not have a valid driver's license from any other state. Grimm responded to Klepacz that they would have to tow the car "either way" because Stamps was not licensed and the car was not registered.

At Grimm's request, Stamps got out of the car and stood near the shoulder. At that point, Grimm intended to tow Stamps's car and to issue him a summons for driving an unregistered vehicle, though not for driving on an expired license. Grimm informed Stamps that "we are going to have to tow the car because it's unregistered . . . and you're unlicensed." Stamps asked if a friend could drive it away, and Grimm replied no, because the car was unregistered. Grimm testified that the car had to be towed because it posed a traffic hazard. He worried that intoxicated drivers speeding away from the oceanfront in the early morning hours might collide with it.

At the time of the stop at issue here, the Virginia Beach Police Department operated under a general order establishing procedures for impounding vehicles and inventorying their contents. Officers were required to follow the policy when towing vehicles that, among other things, posed "traffic hazards." The order imposed on officers "the responsibility of protecting property that comes into their custody." It called for every towed vehicle to be inventoried "without delay." Officers had to search all areas of the car, including opening all containers except those with a factory seal. Items had to be listed on a PD50-6 form, without using "[t]erms such as miscellaneous, assorted or various." Items of high value-$50 or more-or those that pose a potential safety risk should be taken into custody and submitted into evidence using a PD-478 form.

Because Grimm was working on the summons, he asked Klepacz to conduct the inventory search. Both Grimm and Klepacz testified that they understood that the purpose of an inventory search is to protect the owner's property.

Klepacz began his inventory search at the driver's side door and worked his way through the passenger compartment. Although Klepacz did not yet have the PD50-6 inventory form, his body camera recorded items as he called them out. They included "keys," "tools," "paperwork," "banana," and "child seat base."

When Klepacz came around to search the trunk, Stamps, who was standing nearby, protested that the search was unlawful because he had not consented. Klepacz responded that the inventory search was both lawful and required by department policy.

Opening a black backpack that he found in the trunk, Klepacz discovered a bag of marijuana and a pistol. Because Stamps had earlier denied having any guns or drugs in the car, Klepacz directed another officer to place Stamps in handcuffs, detaining but not arresting him.

About ten minutes after Klepacz had started his search, Cheatham approached with the PD50-6 inventory sheet. Klepacz dictated a list of items he found in the vehicle for Cheatham to write on the form. Klepacz testified that he believed that Cheatham had accurately written down all the items he called out. The pistol was not listed because it was seized as evidence and listed on a PD-478 voucher. Klepacz did not complete the PD-478 voucher and did not know who did. He added that Cheatham had written Grimm's name on the bottom of the PD50-6 form because Grimm was the officer assigned to the case.

The officers had slightly different recollections of the events relating to the inventory search. Grimm said that Klepacz had filled out the PD50-6 form and had written Grimm's name at the bottom. Grimm denied completing the PD-478 evidence voucher for the pistol, claiming that Klepacz had done so. Cheatham said that both Grimm and Klepacz were conducting the search while he stood behind them documenting their findings. He said he included the items they found "[t]o the best of [his] ability," including the bag of marijuana. He later scratched out that entry because he thought the marijuana should have been taken as evidence and put on a PD-478 voucher instead.

While Klepacz and Cheatham were working on the inventory search, Grimm discovered that Stamps had a prior felony conviction, which made it unlawful for him to possess the firearm found in the backpack. Grimm said he conducted a second inventory search of Stamps's car to ensure that Klepacz had not missed anything.

Grimm arrested Stamps for being a felon in possession of a firearm. In searching Stamps's pockets incident to arresting him, Grimm discovered what he suspected to be methamphetamine and cocaine, along with $2,199 in cash.

The Commonwealth charged Stamps with possession of a Schedule I or II controlled substance with intent to distribute, possession of a firearm by a violent felon, and simultaneous possession of a Schedule I or II substance and a firearm. Stamps moved to suppress all the evidence on the ground that the inventory search was unlawful.

At the suppression hearing, Stamps argued that his car was not a traffic hazard because it was not blocking traffic and the police could have permitted someone to move the car to a different location. He also argued that the officers failed to follow their inventory policy, such as by not filling out the PD50-6 form at the time of the search and by having different officers complete different portions of the procedures. Finally, he claimed that the inventory search improperly concealed the officers' investigatory motive. He argued that Grimm followed Stamps from a house he was investigating for drug activity; Stamps had refused consent to search his car before the officers settled on towing it; and the officers only loosely complied with the policy. The court denied Stamps's motion to suppress without specifically addressing those points.

Stamps renewed his suppression motion after this Court's unpublished decision in Nottingham v. Commonwealth, No. 1028-22-1, 2023 Va.App. LEXIS 629 (Sept. 19, 2023).[2]Nottingham held that the trial court erred in failing to suppress evidence resulting from an inventory search because the officer did not comply with his department's inventory procedures and the search was a pretext for an improper investigatory motive. Slip op. at 12, 2023 Va.App. LEXIS 629, at *18. The court again denied Stamps's motion. The court found that the ten-minute delay between when Klepacz began the inventory search and when Cheatham began filling out the PD50-6 form did not violate the department's inventory policy.

Stamps entered and the trial court accepted his conditional guilty plea to possession of a controlled substance with intent to distribute, reserving his right to appeal the denial of his suppression motion.[3] He was sentenced to eight years' imprisonment with seven years and three months suspended. Stamps noted a timely appeal.

Outcome: Affirmed

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