ANALYSIS OF NOVEMBER 16, 2017 SUPREME COURT OPINION
(Posted November 16, 2017) It has happened again. This makes – what, 37 years in a row? – that I’ve been dissed by the folks at People Magazine, who inexplicably have chosen somebody named Blake Shelton over me for this year’s award.
Perhaps I should have called for a more expansive letter-writing campaign in support of my candidacy. Maybe next year; for now, let’s explore today’s Supreme Court opinion. At a minimum, I know I can do THAT better than Mr. Shelton can.
The principal issue in Cole v. Commonwealth is a fairly simple one: May jail employees conduct a nonconsensual body-cavity search of arrestees upon their arrival in jail? Cole was arrested in Alexandria on an outstanding warrant – today’s opinion doesn’t say what the warrant was for – and the arresting police officer found an open container of alcohol and a small amount of marijuana during an inventory search of his car.
The Alexandria jail has a policy of requiring strip searches of pretrial detainees who are charged with drug offenses, no matter how minor. During their search of Cole, a deputy noticed a white baggie hanging out of a body part that we prefer not to discuss openly here at VANA. That baggie turned out to contain cocaine.
Cole moved to suppress the evidence, and the trial court granted the motion, finding that the standard for strip searches of pretrial detainees is different from that for persons who have been convicted. The Commonwealth took an interlocutory appeal to the CAV, and succeeded in getting that order reversed. The case went back for a bench trial, and there, Cole renewed the motion to exclude the evidence. The court refused, based on the CAV ruling, and convicted Cole.
Cole appealed the conviction and again asked the CAV to review the suppression issue. The appellate court held that it couldn’t touch this issue, which had become the law of the case after the interlocutory appeal, and refused the petition for appeal.
The justices granted a writ, and today’s decision is a partial reversal and partial affirmance. But don’t be fooled by that; there’s one clear winner today, and that’s the Commonwealth.
The reversal is on a matter of appellate practice: The justices find that the CAV erroneously regarded the suppression issue as unreviewable on a merits review. That’s because a statute specifically says that an appellant can ask the appellate court to reconsider a ruling like this one on post-conviction review.
But that’s the extent of Cole’s victories today. The justices go on to evaluate the merits of the suppression ruling, and they find the CAV’s original decision to have been correct. Based on SCOTUS caselaw, courts afford great deference to the decisions of corrections officers on how to maintain security. Because of the possibility of spreading contraband or weapons to the jail population, the court finds that there’s a valid reason for this policy. In order to prevail, an appellant has to adduce “substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations.” Cole hadn’t come close to meeting that tough test, so the Supreme Court affirms the conviction.