ANALYSIS OF AUGUST 12, 2008 CAV OPINIONS

 

[Posted August 12, 2008]  History is made today, as the Court of Appeals grants a writ of actual innocence.  This, to my knowledge, is the first such writ ever granted in Virginia.

 

Criminal law

We never do quite find out what the weapon was, but Darrell Andrew Copeland was convicted last year of possessing it.  He was sentenced (for possession of a firearm by a convicted felon) just over a year ago.  And then, providence intervened, as the Department of Forensic Science determined that it was not a firearm after all.  (Recent Virginia decisions limit the definition of firearm to a weapon that expels a projectile “by means of explosion.”  Thus, a .357 Magnum is a firearm, but a slingshot isn’t.)

 

Evidently it was too late to appeal, so Copeland tried the previously always-futile route of a petition for actual innocence.  He got an unforeseen ally in his quest for liberty, as the Attorney General conceded that it wasn’t a firearm; the AG even joined in Copeland’s petition for relief.

 

The Court of Appeals grants the petition today, in Copeland v. Commonwealth , though not before a good deal of qualifying, cautionary language.  The short order recites that the courts “have no obligation to accept concessions of error (translation: Just because both parties agree, doesn’t mean that we have to agree, too), and it points out the judges’ reluctance to use this writ as a substitute for habeas corpus (translation:  Don’t get excited just because we granted this one).  But in the end, the writ is granted, and Copeland an expungement; though not his liberty; he is evidently serving a lengthy prison sentence for, among other things, carjacking.

 

Attorneys looking to this order for guidance should be careful to note the unique circumstances of this case.  It isn’t every day that the Commonwealth agrees to your requested relief, and while that isn’t an absolute requirement for such petitions, it should give you an indication of just how rare this kind of relief will continue to be.

 

Let me emphasize something here.  The court’s grant of this writ comes only after a great deal of judicial throat-clearing.  Reading between the lines, I sense that the judges are doing what they feel they must, not necessarily what they want to do.  It’s not that these particular jurists (Judges Kelsey and Petty, plus Senior Judge Bumgardner) think the relief isn’t justified; it’s because I sense they don’t want to open the floodgates to these petitions by giving false hope to the legions of prisoners who are actually innocent.  (Just go and ask the inmates; they’ll tell you they didn’t do it.)  I repeat, there is a remarkable and unusual set of circumstances in this case, and most petitions for writs of actual innocence are still going to be denied. 

 

The court also decides one conventional appeal (as opposed to the actual innocence petition, which invokes the court’s original, not appellate, jurisdiction) today.  That case, Bandy v. Commonwealth , is the latest in a string of Terry stop cases; that series illustrates just how narrow are some of the judgment calls that the courts are being called upon to make.

 

Here’s a lightning refresher course on citizen-police encounters.  There are three types of contact that a suspect can have with the police.  The first is a consensual encounter, which requires no suspicion whatsoever.  Here’s an example of a consensual encounter that can result in a conviction despite no advance knowledge by the officer that criminal activity is afoot:

 

A man with a box in his hands and a puzzled look on his face walks up to a police officer and says, “Excuse me, officer; I’m lost.  Could you please direct me to 1234 Maple Street?  I’ve got to deliver this package of crack cocaine, and then I’m supposed to pick up a big ol’ wad of tens and twenties.”  Obviously, this fellow is headed either to prison or to The Home for the Terminally Stupid; the fact that the police didn’t suspect him beforehand is irrelevant.

 

The second type of encounter is a Terry stop, sometimes described in the legal literature as a brief investigatory detention.  That requires a specific, articulable suspicion by the officer that criminal activity may be afoot.  The third is arrest, which requires probable cause to believe that the accused has committed a crime.

 

The recent series of Terry stop cases have all focused on the point at which the encounter escalates from the first stage to the second.  If a police officer searches someone (without the searchee’s consent) during a consensual encounter, then the courts will usually suppress any evidence thus found.  In order to warrant any type of search, even a brief pat-down, the police must have some objective basis to do so.

 

Bandy’s first mistake was to choose his companions and his environs poorly.  He and a companion went to a neighborhood in Newport News one afternoon and knocked on a door.  When there was no answer, the two men walked away from the house, but not toward their car; they started strolling down the street.

 

I neglected to tell you three things about this neighborhood.  First, the whole place is owned by the city housing authority, presumably to provide low-income housing.  Second, the police regard it as a “high-drug, high-crime area.”  (I didn’t make up this description; that’s what it says in the opinion.)  And third, the authority has put up “No Trespassing” signs to ward off interlopers.

 

I guess there’s a fourth fact you should know – a police officer watched the two men as they approached and then left the house.  He thought their behavior to be suspicious, so he called another officer to help him investigate.  When the two officers approached the two visitors, Bandy’s companion sensibly tossed a bag of crack into a nearby bush.  That gave the companion the right to remain silent.

 

So far, Bandy hasn’t done anything criminal that we’re aware of.  One of the officers said to him, “Pardon me bro, I need to speak with you for a minute if you don’t mind,” to which Bandy replied, “yeah, sure.”  (Subtle hint: This is still a consensual encounter.)  When the officer asked who Bandy was visiting, he gave evasive answers, and wasn’t even able to point to the exact location he was seeking.  Nor could he express where he had come from.  In addition, he appeared nervous to the officer, and kept putting his hands in his pockets, despite the officer’s request that he keep his hands out in the open.

 

Now the officer is starting to get concerned that Bandy will either draw a weapon or try to flee.  He tells Bandy that he’s going to pat him down for weapons (in case you hadn’t noticed, this just turned into a Terry stop).  During that pat-down, the officer felt a few items in Bandy’s pocket that were “hard and rocky.”  Those would be the crack cocaine, of course.

 

The turning point of this appeal, as I broadly hinted above, is whether the officer had an articulable suspicion to pat Bandy down for weapons.  Caselaw clearly supports an officer’s right to conduct a pat-down where he has reason to suspect that his suspect may have a weapon; this is Officer Safety 101, and the courts generally defer to the officer in such circumstances, so long as there is a plausible reason behind the suspicion.  In this case, the Court of Appeals finds today that the officer was justified in the pat-down, and thus affirms the conviction.

 

The court goes to great lengths to explain the justification for this conclusion.  It notes that Bandy was in the presence of a crook (his accomplice, who had ineffectively tossed aside his own crack when the officers approached).  It then concludes that he was trespassing – or at least the officer reasonably suspected that he was.  Finally, the court reasons, his evasive answers could have led the officer to suspect that Bandy was committing a crime.

 

The court then goes on to hold that the officer “had reason to believe that Bandy was armed and dangerous.”  This conclusion springs from his presence on a “high-drug, high-crime area” and his nervous appearance while being questioned by the police.

 

There is one additional holding here that will interest criminal practitioners.  The court specifically approves the officer’s method of conducting the pat-down, holding that he did not manipulate the cocaine in order to determine what it was.  (Once an officer determines that an object is not a weapon, he can’t keep checking it out to figure out what it really was.  Only if his first sense-impression identifies the object as contraband can he investigate further.)

 

This opinion is handed down by a unanimous panel; Judge Humphreys writes the opinion, joined by Judges Frank and Millette.  The reasoning, based on existing caselaw, is sound.  And yet, . . . something about this holding just feels wrong to me.  (I suspect that dyed-in-the-wool libertarians might have stronger language for it.)  There is nothing suspicious about being physically present in a high crime area; the Supreme Court made that clear in April, in McCain v. Commonwealth.  To my knowledge, no case holds that merely walking with a crook establishes a reasonable suspicion that the non-crook is doing something wrong.  And I saw nothing inherently suspicious about knocking on a door and walking away when there was no answer; viewing such a scene, I would assume that the callers were expecting their host to return home shortly.  Remember, all of this took place in the afternoon, with the sun shining; this is not one of those 2:45 am drug deals.

 

Finally, how the officer could tell that the rocks in Bandy’s pocket were crack is beyond me.  This last argument, which might have borne appellate fruit, was apparently left on the table by Bandy.  The Supreme Court held in Cost v. Commonwealth this year that the mere shape of capsules was not enough to justify the suspicion that they were illegal drugs, as opposed to legal ones.  But as the court notes in a footnote to today’s ruling, Bandy didn’t contend that the officer didn’t have probable cause to believe that the rocks were cocaine, so that issue has to lie fallow in this appeal. 

 

Domestic relations

It is always especially troubling to read about cases where parents use children as tennis balls in their marital disputes.  That’s the subtext of today’s opinion in Foster v. Foster , a child custody proceeding under the Uniform Child Custody and Jurisdiction Enforcement Act.

 

Father, Mother, and their three young children lived in New Kent County until the summer of 2006, when Mother told Father that she was taking the kids to visit family in North Carolina.  But that wasn’t her real intention; once she got on I-95, she headed north instead of south, eventually ending up at her mother’s place in Maine.

 

That started the custody petitions flying.  Father won the race to the courthouse, filing a petition in New Kent JDR Court.  Two days later, and before she was served with notice of the New Kent proceeding, Mother filed a similar petition in Maine.  The Maine court entered a temporary order, granting custody of the children to Mother based on her allegation of domestic violence.

 

The UCCJEA includes a singularly wise provision that requires two courts to consult one another when this kind of thing happens.  That provision worked well here, as the Virginia and Maine courts corresponded and kept each other apprised of proceedings.  Eventually, the Virginia court determined that it was not an inconvenient forum for the proceedings (that was presumably an easy call, since the kids had never known a home outside Virginia until Mother took off with them), and it awarded custody of the kids to Father.

 

When the case got into circuit court, Mother first sought reversal of the forum determination.  The New Kent court sided with Father on that one, after considering eight statutory factors, specifically including the allegation of domestic violence.  The Maine court then specifically joined in the Virginia court’s determination that Virginia was not inconvenient, and it dismissed the Maine case at that point.

 

Mother is, by now, starting to run out of ammunition for this fight.  Today, the Court of Appeals finds that the New Kent court did not abuse its discretion in holding that Virginia was not inconvenient.  The CAV thus affirms the award of custody to the father, and the kids will return home to what I earnestly hope is a more civilized and cooperative proceeding than the opening stages of this war would indicate.

 

One last practice pointer:  One of the key facts here is the trial court’s specific recitation, in its custody order, of its consideration of the various statutory factors, specifically including the allegation of domestic violence.  I don’t know whether this order was prepared by the court or by Father’s lawyer, but lawyers who get to draft orders themselves should recognize the opportunity this task presents.  You can avoid a lot of appellate headaches by putting such matters in your orders; the appellate courts certainly pay attention to such language, so you should, too.