EN BANC CAV REVERSES CRIMINAL CONVICTIONS


 

On Tuesday, December 13, the Court of Appeals reversed a conviction of cocaine possession. The case is Logan v. Commonwealth. A divided panel of the court had reversed the conviction on August 2, but the court granted the Commonwealth’s motion for an en banc rehearing four weeks later. Tuesday’s ruling means that the Commonwealth not only lost, but lost the sole dissenting vote in the panel decision; Judge Haley, who had dissented in August, now joins the majority.

The dispositive issue in the case is the probable cause for the arrest of Logan. Police officers entered a rooming house where he lived, looking for someone else; the officers did not have a warrant. While there, they observed him “[hand] a piece of crack cocaine to another person” while in the hallway. Logan persuaded the en banc court that since the rooming house was not open to the public (a crucial fact that was conceded by the Commonwealth), the warrantless arrest violates the Fourth Amendment. Since there was no evidence against Logan other than that seized at the time of his arrest, the indictment is dismissed and Logan is freed.

The court also handed down four other published opinions on Tuesday:

In Virginia Tech v. Posada, it affirms an award of benefits and attorney’s fees to an employee where the employer’s Workers’ Comp adjuster unilaterally cut off benefits upon discovering that the disabled employee was receiving paid caregiver services from his wife.

In Wiggins v. Commonwealth, two abduction convictions and two companion firearms convictions are reversed, since the detentions upon which the abduction counts were based was merely that incidental to the robbery charges of which Wiggins was also convicted. The robbery convictions were not appealed, and one abduction charge and the companion firearms charge were affirmed, so Wiggins still has forty years to serve.

In Ohin v. Commonwealth, the court affirms a conviction for carrying a concealed weapon, in this case, a knife with a 3 ½” blade. The most interesting feature of this opinion is the court’s meticulous description of the knife in order to classify it as a fighting weapon. That description is not culled from a trial transcript, but from the appellate court’s own view of the knife, which was placed into evidence and therefore formed a part of the record. One can only imagine the three judges back in the court’s conference room, carefully handing the exhibit from one to another.

In Shiflett v. Commonwealth, the court addresses another probable cause challenge, within the context of a conviction for driving by a habitual offender. The arresting officer knew that, as of five months before the stop, Shiflett was a habitual offender, so he pulled him over for a licensure check. Shiflett contended that this was insufficient probable cause, but the court disagreed, finding that one’s status as a habitual offender is not transitory; an officer who observes a driver he knows to be a habitual offender may reasonably suspect a violation of law and institute a traffic stop.