# Commonwealth v. Brown > Court of Appeals of Virginia · April 3, 1989 · 8 Va. App. 41 URL: https://www.frixlaw.com/law-library/cases/9590713 ## Case - **Full name:** Commonwealth of Virginia v. Rodelfo Castro Brown - **Court:** Court of Appeals of Virginia - **Decided:** April 3, 1989 - **Citations:** 8 Va. App. 41; 5 Va. Law Rep. 2091; 378 S.E.2d 623; 1989 Va. App. LEXIS 22 - **Precedential status:** Published - **Opinion:** Concurrence by Baker - **Judges:** Baker, Barrow, Cole - **Cited by:** 16 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9590713 ## Opinion text Baker, J., concurring. Rodelfo Castro Brown (defendant) was indicted for possession of illegal drugs with intent to distribute. In a pretrial motion he requested the trial court to suppress the evidence pertaining to the drugs found in his possession by narcotics officers. His motion to suppress was made solely pursuant to the exclusionary rule developed by the federal courts from violations of the unreasonable search and seizure prohibitions of the fourth amendment to the Constitution of the United States. In a letter opinion, the trial court sustained defendant’s motion to suppress “because the facts ... do not justify an 18.2-93 (sic) *44 stop.” 1 Upon a review of the trial court’s letter opinion, the pleadings, evidence, and order, it appears that the trial court may deliberately have ruled as it did to prevent the Commonwealth from appealing its decision. From that decision the Commonwealth appeals. The motion to suppress made no reference to Code § 19.2-83 and it is unlikely that it ever occurred to counsel that the cited statute could be used as a basis for suppression of evidence. Code § 19.2-83 provides: Authority of police officers to stop, question and search suspicious persons. — Any police officer may detain a person in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or possesses a concealed weapon in violation of § 18.2-308, and may require of such person his name and address. Provided further, that such police officer may, if he reasonably believes that such person intends to do him bodily harm, search his person for a dangerous weapon, and if such person is found illegally to possess a dangerous weapon, the police officer shall take possession of the same and dispose of it as is provided by law. The statute is permissive, not prohibitive, and if the record does not disclose that the officers acted reasonably the Commonwealth may not use its provisions to justify the actions of the officers. It is not because the statute could not be used to support the officers’ actions that suppression may be ordered. Suppression follows when the facts disclose that the Constitution has been violated. Mapp v. Ohio, 367 U.S. 643 (1961), made the exclusionary rule applicable to the states where evidence had been obtained in violation of a United States constitutional provision. However, historically, searches or seizure made contrary to provisions contained in Virginia statutes provide no right of suppression unless the statute supplies that right. In Hart v. Commonwealth, 221 Va. 283 , 287 n.*, 269 S.E.2d 806 , 809 n.* (1980) the court said: The Virginia Search and Seizure Act of 1920 made it a misdemeanor for any law enforcement officer to search without a warrant. An offending officer was liable to the victim in com *45 pensatory and punitive damages and, upon a second conviction, forfeited his office. Acts 1920, c. 345; Code § 19.2-59. In Hall v. Commonwealth, 138 Va. 727 , 121 S.E. 154 (1924), the exclusionary rule was rejected, after careful consideration, on the premise that an unlawful search is a completed offense against the constitutional rights of the accused, for which the officer may be held accountable without depriving the government of its right to use evidence, otherwise competent and relevant, against violators of its criminal laws. There was only one issue before the trial court: should the evidence be suppressed because the officers violated the unreasonable search and seizure provisions of the fourth amendment? I concur with Judge Cole’s view that the trial court erred when it failed to respond to that question. Its verdict was premised upon an issue not pleaded and thus not properly before it for decision. The trial court was without authority to decide an issue not raised by the pleadings. See City of Norfolk v. Vaden, 237 Va. 40 , 375 S.E.2d 730 (1989). As erroneous as the decision of the trial court may be the legislature has not granted the Commonwealth the right to appeal from errors made by the trial court which do not involve rulings suppressing evidence based upon the provisions of the fourth, fifth and sixth amendments to the Constitution of the United States or Article I, sections 8, 10 or 11 of the Constitution of Virginia. No such ruling was made in the case before us. For the reasons stated, I reluctantly would dismiss the Commonwealth’s appeal. Although the trial court made reference to Code § 18.2-93 it is obvious that it intended to cite Code § 19.2-83. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9590713. Public record. Not legal advice.