ANALYSIS OF JANUARY 26, 2010 CAV OPINIONS[Posted January 26, 2010] The Court of Appeals today releases two published opinions in criminal cases. The final tally reads: Prosecution 1½, Crooks ½.
Your basic search warrant usually recites an officer’s perception (sometimes based on reliable informants) that events X, Y, and Z have occurred, and he wants to go somewhere and get evidence to prove them. But can the officer instead testify that he expects events X, Y, and Z to occur, and still get the warrant? We get the answer in Ford v. Commonwealth, a drug-possession case arising in Chesterfield County.
I have reported on a few appeals in which clever drug dealers have entrusted their shipments to common carriers (occasionally even the USPS!) to eliminate the risk of being caught while moving their goods. According to the prosecution in this case, Ford was the intended recipient of a UPS delivery containing well over five pounds of marijuana. It wasn’t actually addressed to him, of course – clever drug dealers aren’t that stupid – but to a pseudonym at his home address.
Before the package was delivered, state police intercepted it, ascertained what it contained, repackaged it, and then arranged for a controlled delivery of the package to Ford’s home by a detective disguised as a UPS driver. During the planning for this setup, the police got what today’s opinion describes as an “anticipatory warrant.” Here; you can judge for yourself:
The search warrant will only be executed on the residence if the following occurs. A Chesterfield County Police detective will make a controlled delivery of a brown U.S. Postal Service box or USPS box with a tracking number. The package will be accepted by an individual at the address and taken into their [sic] custody. If any of these events do not occur, a search warrant will not be executed, and the search warrant will be returned to the clerk of the court.
(If you were reading carefully, you will have noted that UPS has somehow morphed into the USPS. But that’s not essential to our story.)
On the day of the delivery, police started watching Ford’s house just after noon. They watched as he drove slowly past his home, “looking at the front of the house.” They dropped off the package at 2:30, leaving it on the front porch when no one answered the door. Thereafter, Ford came home again, got his mail, and walked toward the front porch before turning aside and driving away, leaving all those drugs sitting unguarded in plain sight. Finally, at 9:00, he “returned home, opened the rear sliding door of his van, walked over to the stoop, took the package, and returned to the van, placing the box behind the driver’s seat.”
Within minutes, Ford had the right to remain silent; police swooped down on the van and found the box – unopened but with the shipping labels torn off. Ford told them that he picked up the package so he could return it to UPS (that’s civic-minded for you), but said he didn’t remove the labels. As for all that drug paraphernalia and controlled substance the police found inside the house when they executed the warrant? Ford lived with his fiancée, so he decided to throw her under the bus by claiming that they belonged to her.
The primary issue in the appeal is whether the conditions in the anticipatory warrant ever occurred. The only issue was whether Ford ever “accepted” the package. He argued that that required that someone hand it to him, but today, the Court of Appeals finds that interpretation to be far too restrictive. It holds that the police properly executed the warrant, so it affirms the conviction. The keys to this decision are his taking control over the package and his removing the labels. (What did he expect? The judge would believe that the labels just flew off the package?)
Prosecution 1, Crooks 0.
The next appeal is Holloway v. Commonwealth, in which Holloway was convicted of possession, with intent to distribute, of an imitation controlled substance, plus assault of a police officer. In this case, Portsmouth police approached Holloway’s porch, having received a report that he was carrying a gun.[Digression: What in the name of the Second Amendment is wrong with his doing that? Unless you’re a convicted felon, it’s legal to carry a gun on your own front porch. But nobody mentions this fact in today’s opinion, so it isn’t an issue.]
As the police approached him, Holloway pitched something back toward the front door of his house. Inside of 30 seconds later, the officer saw a package lying on the porch where Holloway had tossed something. That package contained three small “corner baggies” that looked for all the world like the contained crack cocaine. But they didn’t; according to today’s opinion, the substance wasn’t cocaine at all. We never do find out what it really was.[Memo to crooks: It’s impossible to fool John Law by simply tossing your stash aside like this. The cops are watching you carefully! In fact, their lives depend on watching you, to ensure that you don’t pull out something very different and point it at them.]
Holloway didn’t have much else on him: no pipe or spoon; no scales; no wad of tens and twenties. He got arrested anyway, as the police no doubt figured the stuff was crack cocaine.
During the trial, a police expert testified that the three separate baggie corners indicated that the stuff was probably possessed for purposes of distribution. There is indeed a statute that proscribes even the possession of a legitimate substance if it’s an “imitation controlled substance.” When asked the obvious question why someone would ever possess something that looks like cocaine but really isn’t, he responded with two ideas: Either he intends to distribute it, or else he just bought it and got ripped off in the process.
The fulcrum of this appeal is the question of whether the evidence is sufficient to show beyond a reasonable doubt that Holloway’s possession was with the intent to distribute. Courts look to a number of factors in evaluating cases like this one, but many of the factors don’t help the prosecution: The possession of scales or a cutting device, and the presence of a lot of cash, might lead to the conclusion that he was dealing, but we don’t have those here. In the end, the CAV panel decides that there just isn’t enough to prove that intent, so the conviction is reversed.
Holloway isn’t so lucky with his assault conviction; in a wholly unsurprising ruling, the court rules that the trial court had sufficient evidence to conclude that a post-arrest scuffle included an intent by Holloway to injure the officer.
Prosecution 1½, Crooks. ½.