Can a Virginia city's police department use license plate readers and police vehicles to distrain property and collect delinquent municipal accounts?

Plain-English summary

The Chesapeake City Treasurer asked the AG a practical question: license plate readers (cameras paired with onboard computers that match plates against databases) are expensive, and the treasurer hoped to split the cost with the city police department by mounting readers on police cruisers. The readers would be used to spot vehicles whose owners owed delinquent debts to the city, so the city could distrain (seize) property to collect.

The AG said the cost-sharing idea ran into a statutory wall. Va. Code § 58.1-3941 lets the treasurer, sheriff, constable, or collector distrain property for unpaid taxes and other charges, but it does not list police officers. And Va. Code § 15.2-1704(B) tells police officers in plain terms that they have "no authority in civil matters" except in four narrow situations: temporary detention orders, protective orders, executing warrants or summons, and serving isolation or quarantine orders. None of those four exceptions covers civil debt distraint.

The AG also rejected a workaround based on common-law constable powers. Police officers in Virginia inherit the powers "formerly belonged to the office of constable at common law," but that grant is then expressly limited in civil matters by § 15.2-1704(B). So the inheritance of constable authority does not bring civil distraint along with it.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The civil authority statutes for police officers, the distraint statute, and the specific exceptions in § 15.2-1704(B) have all been revised since 2010. License plate reader use has also been the subject of major Virginia legislation and litigation in the years that followed. Any current proposal to use license plate readers for revenue collection or distraint should be checked against the current text of these statutes and the latest AG and court guidance.

Common questions

What does "distrain" mean here?
At the time of this opinion, the AG quoted Black's Law Dictionary: distraint is taking a person's property as a pledge until they perform an obligation, like paying a tax. In the tax context it means the government can seize chattels and bank accounts to satisfy unpaid amounts.

Why couldn't the police department just help the treasurer?
Two reasons. First, § 58.1-3941 lists who can distrain (treasurer, sheriff, constable, or collector) and police officers are not on that list. Second, § 15.2-1704(B) flatly bars police officers from acting in civil matters except in four specifically listed situations, none of which involve revenue collection.

Aren't police officers basically modern constables, and didn't constables collect debts?
Police did inherit constable powers under § 15.2-1704(A), but the General Assembly then expressly took civil-matter authority away by § 15.2-1704(B). The AG cited Va. Code § 1-200 and Boyd v. Commonwealth, 236 Va. 346 (1988), for the rule that the common law continues in force except as altered by the legislature, and held that the General Assembly "plainly manifested" the intent to alter common-law constable authority for police.

Could a sheriff's deputy use a license plate reader for the same purpose?
This opinion did not address sheriffs. Sheriffs are listed in § 58.1-3941 as among those who can distrain, so the answer would likely be different for them. Anyone considering that question should look at sheriff authority statutes separately and check current law.

Does this opinion make license plate readers themselves illegal in Virginia?
No. The opinion is narrow. It only says police cannot use distraint authority that belongs to the treasurer. Other legal questions about license plate reader data collection, retention, and Fourth Amendment limits are separate and have been the subject of later legislation and litigation.

Background and statutory framework

Virginia divides civil and criminal authority sharply. Police officers under § 15.2-1704(A) inherit broad common-law constable powers and are tasked with "the prevention and detection of crime, the apprehension of criminals, the safeguard of life and property, the preservation of peace and the enforcement of state and local laws, regulations, and ordinances." But § 15.2-1704(B) cuts back: "a police officer shall have no authority in civil matters" except in four enumerated situations (temporary detention/emergency custody orders, protective orders, warrants and summonses, and isolation/quarantine orders).

Distraint for unpaid local taxes and fees is governed by § 58.1-3941, which assigns the power to "the treasurer, sheriff, constable or collector." The AG noted that several prior opinions had reached the same conclusion in different settings: police cannot serve civil process for unpaid fines (1976-77 opinion), cannot move private funds between locations as a civil matter (1976-77 opinion), and lack arrest authority for civil immigration violations (2007 opinion).

The AG relied on standard statutory construction principles: courts give statutory words their ordinary meaning unless context shows otherwise (Smith v. Commonwealth, 26 Va. App. 620 (1998); Weinberg v. Given, 252 Va. 221 (1996)), and prefer the "plain, obvious, and rational meaning" over strained constructions (Commonwealth v. Zamani, 256 Va. 391 (1998)). Combined, those rules pointed to a literal reading: police cannot distrain.

Citations

• Va. Code § 58.1-3941
• Va. Code Ann. § 15.2-1704(A), (B)
• Va. Code Ann. § 1-200
• Smith v. Commonwealth, 26 Va. App. 620, 625, 496 S.E.2d 117, 119 (1998)
• Weinberg v. Given, 252 Va. 221, 225-26, 476 S.E.2d 502, 504 (1996)
• Commonwealth v. Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998)
• Boyd v. Commonwealth, 236 Va. 346, 349, 374 S.E.2d 301, 302 (1988)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-040_Carraway.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

July 8, 2010

Ms. Barbara O. Carraway
City Treasurer for the City of Chesapeake
P.O. Box 16495
Chesapeake, Virginia 23328-6495

Dear Ms. Carraway:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether the local police force can participate in the distraint of property for the collection of delinquent City accounts.

Response

It is my opinion that police officers do not have the civil authority to distrain property for payments owed to the City.

Background

You note that a vehicle equipped with a license plate reader could be used to "distrain property and collect on delinquent accounts." You describe a license plate reader as an apparatus consisting of a high-speed camera mounted on the vehicle, which is then connected to an onboard computer. The computer can run information on the captured plates against various databases. You state that because of the expense of the readers, you hoped to partner with the police department and share the costs of installing and maintaining the equipment. Because the license plate readers would be installed on police vehicles, you have asked whether the police department can be involved in the civil collection process.

Applicable Law and Discussion

Code § 58.1-3941 provides in relevant part that

Any goods or chattels, money and bank notes in the county, city or town belonging to the person or estate assessed with taxes, levies or other charges collected by the treasurer may be distrained therefor by the treasurer, sheriff, constable or collector.

To "distrain" means "to take as a pledge property of another, and keep it until he performs his obligation . . . ." BLACK'S LAW DICTIONARY 474 (6th Ed. 1990).

Property subject to levy or distress for taxes shall be liable to levy or distress in the hands of any person for taxes, penalties and interest thereon . . .

By statute, local police officers are vested with "all the power and authority which formerly belonged to the office of constable at common law." Their chief responsibility is "the prevention and detection of crime, the apprehension of criminals, the safeguard of life and property, the preservation of peace and the enforcement of state and local laws, regulations, and ordinances."

The General Assembly has provided that, "a police officer shall have no authority in civil matters," subject to four specified exceptions: (1) "execut[ing] and serving temporary detention and emergency custody orders;" (2) "serv[ing] an order of protection;" (3) executing certain warrants or summons; and (4) "deliver[ing], serv[ing], execut[ing] and enforc[ing] orders of isolation and quarantine." Distraining civil property is a civil matter which does not fall within the plain language of the limited civil authority provided to police officers.

Section 58.1-3941 does not alter this conclusion. It does not authorize police officers to distrain property. Instead, it states that "the treasurer, sheriff, constable or collector" may distrain certain property. Police officers are not "constables." Instead, they are "invested with the power and authority which formerly belonged to the office of constable at common law" but with that broad grant of authority then being expressly limited in civil matters. Code § 1-200 provides in pertinent part that, "[t]he common law of England . . . shall continue in full force within the same, and shall be the rule of decision, except as altered by the General Assembly." Furthermore, in interpreting statutes, "[t]he common law will not be considered altered or changed by statute unless the legislative intent is plainly manifested." The General Assembly plainly manifested that intent by providing that police officers have "no authority in civil matters" except in the specified situations. Distraining property is not one of the specified exceptions.

Further support can be found in previous opinions by this office, which all conclude in a variety of contexts that police departments do not have specific civil authority beyond what is set forth in Code § 15.2-1704.

Conclusion

Accordingly, it is my opinion that police officers do not have the civil authority to distrain property for payments owed to the City.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General