ANALYSIS OF OCTOBER 6, 2009 CAV OPINIONS
ANALYSIS OF OCTOBER 6, 2009 CAV OPINIONS
[Posted October 6, 2009] What, did you think I was falling down on the job, ignoring all the published opinions out of the Court of Appeals the last two weeks? No way; I wont abandon you. The court simply issued no published opinions the past two weeks, but we get two interesting ones today.
Rogers v. Commonwealth helps to define the affirmative act that supports a prosecution for an attempt to commit a crime. Attempt requires proof that the defendant formed an intent to commit the crime, and that he performed some direct act toward its consummation, but falling short of the accomplishment of the ultimate design.
Rogers and two confederates decided to rob a family in the familys apartment. Figuring that the family would have cash handy, the robbers came to the building and watched the family go inside. The robbers then placed black bandanas over their faces, and knocked on the door. The victim had seen some suspicious-looking characters those would be our suspects lurking around, so instead of simply opening the door, he looked through the peephole and saw what looked like a mask and a gun. He then, quite sensibly, refused to open the door, telling his wife to call the police.
The impasse lasted a very few moments before the robbers gave up and fled, but not without being seen by responding police officers. The gendarmes gave chase and eventually stopped the getaway car, where they found the three perpetrators in possession of two black bandanas, but no guns; the weapons turned up in a brief search of the route, where the robbers had tossed them out of the car.
Sounds like they got the right guys, right? Well, they did; one of the three turned states evidence and ratted out his colleagues, telling the whole story. The sole issue on appeal is whether the evidence supported the conviction for attempted robbery, when the robbers decided to abandon their enterprise. And that, in turn, depends on whether they had performed some direct act toward committing the crime, as described above.
The other criminal case presents a detailed analysis of a fairly straightforward question: Can the police search a passenger in a car that has been stopped for a tail light violation, when a police computer database showed that the passenger had been arrested a year earlier for illegally possessing a handgun? Todays opinion is Smith v. Commonwealth.
The facts really were almost that simple. Two off-duty
The issue in this case is whether that much information is sufficient for a Terry stop-and-frisk. The trial court found that it was, but today, a unanimous panel of the CAV reverses that ruling. The opinion walks methodically through the analysis of this issue, focusing on the value of the police databases listing of the passenger as being probably armed. The court finds that a stale arrest (the database didnt list any disposition of the earlier charge; just the fact of arrest) doesnt serve as the basis for a reasonable suspicion that the suspect is armed a year later.
The court distinguishes caselaw that you might find persuasive, at first blush, on the good faith exception to the exclusionary rule. In one such case, this years US Supreme Court decision in Herring v. US, the high court had approved the use of evidence seized in violation of the Fourth Amendment because police officers relied upon incorrect information obtained from another county. The exclusionary rule serves to deter sloppy or deliberate police acts, and punishing one police department for the mistake of another department wouldnt serve that purpose. But in todays decision, the information was improperly entered into the data base by
This opinion is not going to sit well with police officers and those who care about their safety. Every officer wants to know as much as he can about potentially-armed suspects, and having a database like this one may save officers lives. Todays ruling will no doubt be seen as an erosion of an officers protection. In my view, that opinion would be hasty; officers can still protect themselves, but evidence thats seized as a result of protective pat-down searches can be excluded under circumstances like this.