ANALYSIS OF JULY 26, 2018 SUPREME COURT OPINIONS
(Posted July 26, 2018) What, you thought that the justices were on a luxurious three-month summer vacation? We’ve got opinions! The Supreme Court hands down two published decisions today in appeals argued in the June session.
We get an important probable-cause ruling today in Curley v. Commonwealth. The whole issue boils down to Curley’s motion to suppress the evidentiary goodies that a search of his car generated – cocaine, marijuana, a Glock, and a fistful of twenties. The question is whether the arresting officer had probable cause to search the car to get those things.
My experience as a former government attorney showed me that on many occasions, it’s the little things that trip up crooks. Here, Curley was driving around Pittsylvania County with no front license plate on his car. As violations of the law go, that’s on the mild end of things. A deputy stopped him, approached the driver’s side, and noticed a backpack in the front passenger seat next to the driver.
Let’s let Justice McClanahan take over the narrative here:
When Officer Wyatt asked Curley for his driver’s license, Curley said it was located inside the backpack. Curley then took approximately thirty seconds to retrieve it. During that time, Curley was “bent all the way” over the backpack “with his chest to the top of the bag,” which blocked Officer Wyatt’s view of the backpack’s contents. As Curley handed over his driver’s license, he appeared very nervous, his hand was shaking and he was breathing heavily. Due to Curley’s movements, Officer Wyatt became concerned about the possibility of weapons in Curley’s vehicle and instructed Curley to place his hands on the steering wheel.
Once Curley stepped out, the deputy (and a backup who had arrived) asked Curley for permission to search the car. No dice, Curley replied. “Well, how about if we search you?” To this, Curley answered that he didn’t possess anything illegal, but he consented to the search.
Bad move. The deputies found a digital scale, with a white residue on the pan, in Curley’s back pants pocket. (What; he was sitting on it?) Suspecting that this was used for cocaine distribution, the deputies proceeded to search the car, where they found that cascade of incriminating evidence.
As noted above, the primary issue in this appeal is whether the evidence accumulated before the search of the car constituted probable cause. The trial court felt that it did, denying Curley’s motion to suppress. After a conditional guilty plea to a host of charges, Curley appealed to the Court of Appeals. That court ruled that the combination of the officers’ observations of Curley, the scale, and the discovery of the cash were sufficient.
Curley no doubt saw a glimmer of hope in this ruling: The cash hadn’t emerged until after the search of the car. That couldn’t possibly establish probable cause for the search. On appeal, the justices agree with this objection … but affirm the conviction anyway. Today’s opinion describes three pre-search factors:
Curley’s furtive movements while in his vehicle after the traffic stop, causing Officers Wyatt and Owens to be concerned that Curley might be in possession of a weapon; Curley’s overly nervous demeanor; and Curley’s possession on his person of a digital scale with suspected cocaine residue, which Officer Owens opined was consistent with drug distribution.
Analyzing those as a whole (instead of separately, as Curley had urged), the court finds that this was enough evidence to establish probable cause to search the car.
One measure of the complexity of an appeal is when the setup – the facts and procedural posture – is longer than the analysis. That’s the case in Catjen, LLC v. Hunter Mill West, LC from Fairfax County, which results in a 9 ½ page opinion, five of which is the setup.
Because of that complexity, I’m going to truncate this analysis and get to the rulings quickly. The Reader’s Digest version of the setup is as follows: Debtor signed a deed of trust note securing a seven-digit loan with a lien on five acres. The note contained a confession-of-judgment provision and a balloon payment. When the debtor didn’t pay, the creditor declared a default, triggering a much higher interest rate. After foreclosing on the five acres and getting less than full payment, the creditor’s attorney in fact showed up in court and confessed judgment for the $2.4 million deficiency.
The debtor then came to court and moved to reopen the case under Code §8.01-433, claiming that the prejudgment interest in the judgment was way too high. The trial court agreed and reduced the judgment to the debtor’s calculated figure of $1.1 million.
Now it’s the creditor’s turn to complain. It moved to nonsuit the case, but the judge decided that that motion came too late, since the matter had already been submitted to the court for decision. The creditor then asked that the case be set for trial, but the court refused.
The creditor got a writ, and today the Supreme Court unanimously vacates the judgment, reverses, and remands. Justice Powell’s opinion explains that the only issue in a motion to reopen a confessed judgment is “whether the judgment debtor’s pleadings assert a facially adequate defense or setoff.” Once the trial court found that it did, the remedy is set forth in the statute:
… the case shall be placed on the trial docket of the court, and the proceedings thereon shall thereafter be the same as if an action at law had been instituted upon the bond, note or other evidence of debt upon which judgment was confessed.
That is, the court doesn’t adjudicate the claim and defenses then and there; it calendars the case for a later trial. This trial court short-circuited that process by adjudicating the entire dispute with no witnesses; no jury; no trial.
That, you will readily understand, is a ruling that’s bound to be reversed. The justices accordingly send this case back for trial, at which the parties can hash out what the proper interest calculus is.