ANALYSIS OF JULY 14, 2009 CAV OPINIONS[Posted July 15, 2009] I am back from the wilds of the Pacific Time Zone, and am happy to get back to the routine of analyzing appellate opinions from good ol’ Virginia. Yesterday, we got three criminal law decisions from the Court of Appeals; the appellants batted .333, getting one reversal.
In my view, the most intriguing ruling of the day came in West v. Commonwealth, involving a burglary and attempted rape (among others) in a home invasion. The victim managed to bite her assailant on the lip, ear, and finger during the assault. When police arrived, she was unable to positively identify her attacker, but she described him and surmised that it might be her boarder, “Joe.”
The officers then went to the small house out back where “Joe” lived. West (whose given name, fortuitously, is Joseph) opened the door a crack and looked at the police; one officer noticed that he had “a fresh scratch” on his face, and that he had a cut lip. Bingo, the officer thought.
Joe started to close the door, but the officer put his hand up to stop it from closing, telling Joe that the officers wanted to come into the house. He backed off, and the officers entered. They did not, you will have noted, bring a warrant with them. Inside, they discovered a bloodstained pair of blue jeans. Joe wound up getting photographed and fingerprinted promptly thereafter.
Joe’s lawyer moved to suppress everything the police got after the instant the door hit the officer’s hand, contending that the police had conducted an unreasonable warrantless search. The trial court accepted Joe’s argument that the police needed both probable cause and exigent circumstances to justify the warrantless entry. The court found that these facts established both of those conditions, so it denied the motion and convicted Joe, sentencing him to life-plus.
On appeal, the Court of Appeals evaluates both of these rulings. The first is fairly straightforward; given the tentative identification by the victim and the fresh injuries on the suspect, corresponding exactly with the victim’s description of the events, it’s no surprise that the officers had probable cause. But what, you might ask, were the exigent circumstances here?
The CAV affirms that part of the ruling, too, and offers an explanation that still left me thirsty for a better explanation. Citing a 24-year-old SCV ruling, the court identifies ten non-exclusive factors used to evaluate whether circumstances have reached the exigent level or not. Reading through them as I made my way through the opinion, I mentally checked them off – that one doesn’t apply; this one doesn’t even come close to applying; nor does this one – and ultimately I found only three that arguably would lead to a finding of exigent circumstances (leaving seven that do not lead in any way to this conclusion). Those three are:
“. . . (5) whether the offense is serious, or involves violence; . . . (7) whether there is, at the time of entry, a clear showing of probable cause; [and] (8) whether the officers have strong reason to believe the suspects are actually present in the premises . . .”
In truth, the opinion gives no indication relating to #8, but I’m giving the court the benefit of the doubt here. Even so, I’m unconvinced that these circumstances amount to an exigency sufficient to discard the Fourth Amendment’s protections. The court cites authority from other jurisdictions (including the Fourth Circuit) holding that the possibility of destroying evidence can justify a finding of exigency, but in my view, that creates a Hummer-wide exception to the rule, allowing the police to enter a person’s home merely on the possibility that he might take a shower, or do a load of laundry. (Yes, those two exact circumstances are presented in the cases cited in the opinion.)
Joe’s conviction is affirmed, so unless he finds succor in the Supreme Court, he’ll spend the rest of his days in prison.
The court issues a short opinion in an obstruction of justice case that answers this interesting question: If you give the police a fake name, and then bolt from them, does that amount to obstruction? The answer comes in Atkins v. Commonwealth. Atkins was also convicted of possession of marijuana and of a weapons charge, but only the obstruction conviction is reviewed today.
Atkins was speaking idly with a police officer in a parking lot in the wee hours of an unidentified morning. Another officer thought to run a check on Atkins’s license plate, and got a hit – the license plate was stolen. He conveyed to his fellow gendarme the police-lingo equivalent of “Stop that guy!” but Atkins took off, evading capture for about four hours. When one of the officers caught him, Atkins used the tried and true method of giving him a fake name.
The law, it seems, is clear that mere flight isn’t enough to get you convicted of obstruction; so a line of cases instructs us. The issue here is whether the added circumstance of giving a fake name is enough to cross the line. The Commonwealth urged upon the court a statute that provides, “Any person who knowingly and willfully makes any materially false statement or representation to a law-enforcement officer who is in the course of conducting an investigation of a crime by another is guilty of a Class 1 misdemeanor.”
If you read that carefully, you caught the fatal clause: “. . . an investigation of a crime by another . . .” These officers weren’t investigating a “crime by another”; they were directly investigating Atkins himself. Atkins accordingly walks (though not, apparently, on the marijuana and weapons charges).
The final case of the day is Sanford v. Commonwealth, where the appellant was convicted of forcible sodomy accomplished by the victim’s mental incapacity. This victim, age 16, had an IQ of 46 and severely impaired ability to “assess cause-effect relationships in social interaction.” The defendant admittedly performed cunnilingus on her, but argued that she did not have the requisite mental incapacity.
In previous cases, the CAV has refused to find such incapacity merely because of a low IQ, and that rule of law doesn’t change in this case. But the court affirms the conviction anyway, because here, unlike the earlier cases, there was credible evidence to show that the victim’s adaptive functioning was impaired. The court notes the trial court’s findings regarding those adaptive functions (enumerated as communications skills, health, safety, leisure, self-care, social, and home living), and finds a big difference between this victim – who was entirely incapable of caring for herself – and the previous victims.