ANALYSIS OF OCTOBER 23, 2007 CAV OPINIONS

 

[Posted October 23, 2007] Last week, those of you who follow the published opinions of the Court of Appeals of Virginia went hungry; the court handed down no published decisions on October 16. This week, the court makes up the average by issuing five published opinions. Four of those are criminal appeals, and one is an administrative law ruling that centers around an ABC license.

Criminal law

Confidential informants are often-used tools of law enforcement, and draw the suspicion and ire of the criminal defense bar. Today, the court hands down Byrd v. Commonwealth , in which the credibility of such an informant is the key issue.

One such informant called Portsmouth police one day in January 2006, and reported that Byrd was “selling heroin on the corner of Lincoln and Camden Streets.” He also gave a description of the clothing Byrd was wearing. The detective who took the call knew that this informant had given accurate information on six previous occasions, leading to three arrests, so he believed the tip; he instructed a nearby police officer to confront and arrest Byrd. The officer found Byrd at the exact location, and wearing the exact clothing, described in the tip. When he frisked Byrd, he found heroin.

Sounds pretty clear-cut, right? Despite all these similarities, Byrd’s lawyer moved to suppress the evidence, claiming that the police had insufficient probable cause to make the arrest. The trial court denied the motion and convicted Byrd.

On appeal, the court examines in detail the standards that apply to reliability determinations for confidential informants. Police officers don’t have to personally observe criminal activity in order to create probable cause, so long as the informant’s tip gives the officer reasonable grounds. Today’s opinion notes that there are two elements of that calculus: The informant’s veracity, and the basis of his knowledge. Here, the trial court had found the informant to be credible as a matter of fact, so that prong of the test was easily satisfied. But the real meat of today’s discussion focuses on the source of the informant’s knowledge.

It’s easy to summarize what the informant told the police about how he knew Byrd was selling heroin: Nothing. He made no representation at all about whether he had seen Byrd with the drugs, or if he had been told by someone else. As a result, the second prong is not met.

Now, before you mentally reverse this case based on that finding, you should know that there’s more. Caselaw indicates that where an informant’s predictions possess “unusual reliability,” that credibility can offset the absence of personal knowledge of the behavior. The question, then, is whether this informant’s six instances of successful cooperation with police establish that reliability.

The problem with this tip is that there’s nothing about what the informant told the police – basically, location and clothing – that wouldn’t be available to any passerby. And it’s not really a prediction (in contrast to a 1950’s case the court distinguishes, where the informant accurately predicted what a suspect would be wearing and doing on a later date); it’s more like a present sense impression. The one detail that wasn’t readily obvious to the public was that Byrd did, in fact, possess heroin, but that evidently isn’t enough to constitute probable cause. This discussion is the most intriguing part of this highly readable opinion.

The case is thus remanded for a new trial, if the Commonwealth chooses to go forward without the seized heroin (and that, most prosecutors will concede, is a tall task). One last interesting point about this opinion – the Commonwealth did not present oral argument on the merits of the case, and was “heard” only on its brief. I don’t know whether that was a strategic decision (such as the possibility that the Attorney General’s Office saw the writing on the wall, and decided not to appear to avoid some uncomfortable questions). It might have been a manpower issue; or it might have been a noncomplying brief under Rule 5A:26 . In any event, only Byrd’s lawyer got to argue the case to the court, and that paid off in the end.

The shortest opinion of the day – just over four pages – is Gray v. Commonwealth, a case of felony eluding with a number of intriguing developments. A Newport News police sergeant approached Gray’s parked car, at which point Gray put his hand up to his mouth and started chewing. For whatever reason, the sergeant figured that wasn’t Juicy Fruit –he suspected cocaine – so he asked Gray what it was. Gray just kept chewing and said nothing. The sergeant’s partner, a detective, then walked up, just as Gray put the car into gear and “slowly drove away.” On the way out, he drove over the sergeant’s foot.

The next paragraph begins, “[The detective] chased and caught Gray.” (Gee; no kiddin’. When a suspect injures a law enforcement officer, the chances of his being apprehended soon thereafter are somewhere in the vicinity of 100%.) Before he could be tried, Gray moved to suppress all of the evidence, because, he argued, the officers didn’t have a reasonable, articulable suspicion to stop him. The trial court agreed up to a point (maybe it was Juicy Fruit, after all), but it found that even though the initial stop was improper, Gray’s subsequent actions constituted separate criminal offenses. Gray got convicted (otherwise we wouldn’t have an appellate opinion today) and resumed his assault on the evidence before the Court of Appeals.

The appellate court agrees that the evidence was admissible, as it finds that “Gray’s flight from the police in violation of their signals to stop was a new crime committed after the initial, unsuccessful attempt to detain him.” Even if the attempted stop wasn’t appropriate, Gray still didn’t have the right to run over a police officer in order to get away.

There is one other issue, that of sufficiency of the evidence. Gray argued that the Commonwealth presented no evidence “that his driving posed a danger to anyone.” Leaving aside the sergeant’s instep, let’s see just what the evidence did show. He crossed double yellow lines to pass other traffic. He cut off other vehicles and made evasive maneuvers, wove in and out of traffic, and “drove within fifteen feet of pedestrians.” Okay, so that last part wasn’t overwhelming; I drive 15 feet from pedestrians all the time, with them on the sidewalk and me in my travel lane. But it will come as a surprise to exactly no one that the appellate court finds that this method of driving is enough to convict Gray of felony eluding.

Today’s opinion in Logan v. Commonwealth might teach you something about the exclusionary rule that you didn’t know. Logan, apparently bent on amassing frequent flyer miles within the criminal justice system, got convicted twice of cocaine possession. On the first instance, he was sentenced to five years, but two-thirds of that was suspended on the usual conditions of good behavior. When he was convicted the second time, two years later, he appealed, and succeeded in getting that conviction overturned, based on a Fourth Amendment violation. But that didn’t stop his probation officer from seeking to revoke his probation for the first charge, based on the underlying drug possession in the second case.

Did that description inspire you to say, “Hey; wait a minute”? This is the part where we get the free lesson in the exclusionary rule. The court affirms the conviction, noting the well-established body of caselaw (starting at the very top: the Big Supremes in Washington) that holds that the exclusionary rule doesn’t apply to revocation hearings. This means that if the police can obtain, by any means (even unconstitutional means), evidence that you violated your probation, then they can use that evidence to put you back in jail, even though it can’t be used to convict you of a new offense.

There are a few other issues that the court disposes of, later in this opinion, that merit at least a brief mention. One is the court’s repetition of its admonition that it will not apply the ends of justice rule sua sponte. If a litigant wants the court to apply the rule, then she has to ask the court to do so. Another point is that in order to argue a meritorious issue, you first have to make it one of your questions presented. Logan argued that “his continued detention in the local jail awaiting a revocation hearing was unlawful.” I don’t know whether he would have succeeded on the merits of that argument, but the court never reaches it, because it wasn’t among his QP’s. Appellate lawyers are accustomed to thinking of questions presented (and assignments of error in the Supreme Court) as the equivalent of the complaint and answer in trial courts; they frame the issues and the parties are limited to litigating only those issues within that framework.

One last thing about this case. I may well be mistaken about this, but I detect from the opinion at least a subtext of discomfort with the result, from the standpoint of the judges. In ruling on the exclusionary rule, the opinion concludes that “we are constrained to find that the exclusionary rule does not apply to probation revocation hearings.” Constrained? To me, that connotes an almost involuntary conclusion. And later on, in discussing the ends of justice rule, I sense at least a hint that if Logan had asked the court to invoke the rule, the court might well have done it (and that happens about as often as one of your neighbors hitting the MegaMillions lottery). One might suspect that the panel wasn’t entirely comfortable with affirming this conviction. I certainly can’t confirm this suspicion, and the author of today’s ruling, Judge Frank, will not be found at any Bleeding Heart Liberals Anonymous meetings any time soon. In any event, I have certainly been wrong on more important stuff than this before.

The only hint we have at what the defendant actually did in Rashad v. Commonwealth comes from reading the court’s recitation of his convictions. There’s robbery, use of a firearm, statutory burglary, and the dreaded felonious face-covering. (Code §18.2-422 prohibits covering one’s face in public, and is immediately adjacent to the prohibition of cross burning. Evidently Rashad did not qualify for the exemption for “traditional holiday costumes.”) The two appellate issues decided today are purely procedural, and are of some interest for those who practice criminal law.

The more interesting of the two issues is the question of whether Rashad waived his right to counsel. There’s no question that he was properly Mirandized, and no question that he properly invoked his right to have an attorney. The interesting part came immediately after that, when the police officers gathered their papers and started to walk out. Instead of just watching them go, Rashad did the one thing he never should have done in that situation, and the one thing that so many crooks find irresistible: He opened his mouth. “I mean, can the lawyer come down here now while y’all questioning me?” This admittedly ambiguous question prompted the officers to respond that they couldn’t talk to Rashad any more. But they did ask what he meant, and whether he was willing to talk without a lawyer being present. After several probing questions limited to whether Rashad wanted to wait for the lawyer to arrive, or talk immediately, Rashad confirmed that as long as he didn’t have to sign anything, he’d be willing to talk without a lawyer.

You get two guesses what he said when the interrogation resumed. Those “surplus” statements got him indicted and eventually convicted of the laundry list of items I spelled out above, after the trial judge denied the inevitable motion to suppress. Today, the court of appeals notes that many a suspect who has invoked his right to counsel has thought better of the idea, and gone ahead and waived his right, and that’s what it finds happened here. The real question is whether the “follow-up” discussion came at the police’s behest, or at Rashad’s. Given the short transcript excerpt set out on pages 2-3 of the opinion, I fully agree that the impetus for this part of the dialogue came from Rashad. Over the course of my career, I have represented the government in criminal prosecutions, and I have represented criminal defendants. With that two-sided background, I can say that I think this police officer handled the matter just about perfectly, and the court seems to agree.

The second issue is a failed attempt at a statutory “gotcha” by Rashad. He notes that the firearm charge only implicates “burglary,” which he equates with common law burglary, and does not mention statutory burglary, of which he was actually convicted. The court has little difficulty in concluding that the generic term burglary can (and in this context, should) include all forms of the crime, so as to make it a separate crime to carry a gun regardless of what variety of burglary the defendant elects to commit. The same analysis applies to the various forms and degrees of murder and abduction, so this hypertechnical challenge falls on deaf appellate ears. The court thus affirms the convictions in all respects.

Administrative law

Our one admin law case of the day arrives courtesy of Hurricane Isabel, which destroyed the old Ocean View Fishing Pier in Norfolk in 2003. A local developer rebuilt it and asked the ABC Board for a liquor license for a restaurant on the pier. The Board was about to grant the permit when it learned about citizen opposition. It then appointed a hearing officer to look into the matter.

The key issue for the hearing was whether the noise and activity attendant to a new bar would disturb the tranquility of the neighborhood. The hearing officer listened to the evidence, including a representative statement form one of the neighbors, and decided that the complaints weren’t enough to deny the license, so he recommended approval of the application, allowing the bar to stay open (including entertainment and alcohol sales) until 2:00 am. The representative neighbor asked the full ABC Board to hear the matter on appeal.

Upon appeal, the Board agreed that the record did not support rejection of the applications, as the neighbors had wanted, but it did decide to cut back on the hours of operation, to midnight instead of 2:00 am. Now it was the developer’s turn to appeal, directly to the circuit court under the Administrative Process Act. That court held that the Board’s decision to cut back the hours was irreconcilable with its statement that the complaints weren’t justified. It therefore found the Board’s decision to be arbitrary and capricious, and reinstated the 2:00 am limit.

To paraphrase George Thorogood (and even he may have stolen the line from John Lee Hooker), “One appeal ain’t enough, Jack; you’d better make it three.” The neighbors headed up to the Court of Appeals for one more round (sorry; if you’re reading this site, you already know about my proclivity for puns). Today, in Harrison v. Ocean View Fishing Pier, LLC, the appellate court reverses yet again, deciding that the Board had the discretion to limit the hours, as a necessary implication of its power to approve or deny the applications outright. The court does remand with direction that the Board “make up the record” by preparing findings of fact and conclusions to justify its decision, but its clear that the neighbors have won this battle.

Today’s opinion contains some notable discussions of mootness and standing, in addition to the purely administrative law issues. The court finds that the case isn’t moot, despite the fact that the Board went ahead and complied with the circuit court’s directive and issued the 2:00 am licenses. It rules that today’s decision reverses the circuit court’s order and thus necessarily invalidates the licenses. And the court meticulously traces the admin law path that gives the neighbors, as persons aggrieved by the grant of the license, standing to participate in the case in the circuit court and in the appellate court. On this issue, the developer may have shot itself in the foot by specifically naming the neighbors as parties when it appealed to circuit court. In light of that, its contention that the neighbors weren’t really parties rings hollow.