ANALYSIS OF DECEMBER 1, 2009 CAV OPINION[Posted December 1, 2009] We get one lonely published opinion today from the Court of Appeals. But it’s short – just seven pages – and a fun read, so let’s jump in.
You’ll find the court’s latest views on suppression of evidence in Testa v. Commonwealth, involving a conviction for obstruction of justice. Loudoun County law enforcement officers came to Testa’s stepfather’s house, where Testa lived, to investigate a domestic-violence complaint filed by Testa’s girlfriend. They weren’t trying to arrest him at that point; they just wanted his side of the story.
But Testa wanted no part of the officers. The stepfather admitted them into the house, but the officers discovered that Testa had locked himself inside his bedroom. When they explained their relatively-benign purpose for coming, an answer came through the locked door that the officers should . . . well, let’s just say that he invited them to perform an anatomically-impossible sexual act, and leave it at that. (If you’re one of those readers who just have to know what he said, click on the hyperlink above. The phrase is sprinkled liberally throughout the opinion; you can start on page 2.) A few minutes later, the invitation turned to a threat: Testa told the officers, “I’m going to pick you [distinguished gentlemen] off one by one.”
(My loyal readers will, I hope, forgive me for exchanging something more civilized in place of Testa’s actual phrasing. No doubt he would have used this more-temperate language for his threat if he had been thinking clearly.)
The officers didn’t receive this threat in a vacuum; before entering the house, they had been warned that Testa had assaulted other deputies, and that he was “armed and dangerous” at the time. Under these circumstances, the threats take on a different meaning.
After about ten minutes, Testa decided to go ahead and cooperate. He came out and gave the officers his version of the domestic-violence story. They took notes, thanked him, and then calmly arrested him for obstructing justice by threatening a law-enforcement officer.
Testa unsuccessfully moved to suppress the evidence of the threat, claiming that the officers were in the house without a warrant, so they, in essence, created the crime by still being within earshot when the time for the threat arrived. He relied on a 2006 decision that applied the exclusionary rule to a warrantless search of a shared dwelling. The Court of Appeals today affirms the trial court’s ruling, noting that this wasn’t a search at all. The officers clearly had the permission of the owner (the stepfather), and Testa had no legal status in the house anyway. He wasn’t an owner or cotenant; just a visitor who was staying in someone else’s property.
There’s an implicit ruling in today’s opinion that I found just as intriguing. Testa’s argument was based on the premise that his anatomically-impossible suggestion, at the outset of the exchange, was the legal equivalent of “Get out of my house, officers; I don’t consent for you to be here.” It isn’t, of course, even though it clearly telegraphed a less-than-benevolent intent on Testa’s part.
Testa argued separately that the evidence violated the requirements of Miranda v. Arizona, since the officers should have Mirandized him at some early point in the conversation. The court today determines that Miranda doesn’t apply because the threat was volunteered, and was not the product of police interrogation.
In a footnote, the court declines to address another argument that would have been just as devastating to Testa’s appeal – the fact that Testa wasn’t in custody at the time. Remember, he had locked himself in the bedroom. While the officers were on the other side of the door (and even had guns drawn), they never took him into custody until after he gave his statement. I believe that the reason why the court took the approach it did is that the issue of whether Testa was effectively seized at any given point might be a bit fuzzier than was the question of whether the statement was volunteered.
Testa’s final salvo is a sufficiency challenge. Let me just say that this one’s going down; the opinion doesn’t describe Testa’s argument in detail, but it appears to be that there was no evidence that the officers were actually placed in fear. The court swats that contention aside by noting that the statute proscribes an attempt to obstruct, so whether the officers actually perceived fear is irrelevant. Of course, knowing what they did at the time, they would have been fully-justified in perceiving a very real threat anyway.