[Posted November 3, 2009] While you were busy standing in line at the polls today – you have voted, right? – the Court of Appeals was busy releasing two published opinions, both in criminal appeals.

[We interrupt your regularly-scheduled web site to provide this important coverage of today’s memorial service.]

Dearly beloved, we are gathered here today to pay our last respects to an old friend whose time has irrevocably passed. Some of you may have referred to her as The Good Old Days; others may have known her as a dear, quiet, reserved member of our society who would never dream of giving offense; everyone knew her as the spirit of appellate propriety. I refer, of course, to the late, lamented Modesty in Appellate Opinions; may her delicate soul and even-more-delicate sensibilities rest in peace.

We have known for some time that she was ill. Numerous appellate opinions, all relatively recent, have listed language that would be far too graphic for inclusion in polite society. Back in 1978 – a much gentler time – the United States Supreme Court was required to pass upon a case involving George Carlin and his Seven Dirty Words monologue. In that day, the justices could not bring themselves to write any of the challenged words in their opinions; with a hint of embarrassment, they simply appended to the Court’s opinion a transcript of Mr. Carlin’s routine, where the language lay naked and exposed to the world. Thousands of law students studying Constitutional Law thus came to see, perhaps for the first time, the spectacle of officially-published coarse language.

More recently, as society has changed even as our gray lady did not, courts have taken to using asterisks to omit key letters when it became necessary to convey to the reader the exact sense of what was being discussed. This proved to be moderately more sensational than the previous practice of making only an oblique reference to strong language. But as the calendar continued to turn, some opinions omitted the asterisks and dared to print the unexpurgated language. Modesty in Appellate Opinions may have sensed at that time her own mortality.

Today, brothers and sisters, came the surest sign that our dear companion has at long last passed into that great lexicographical beyond. It arrives in the form of Lofgren v. Commonwealth, an appeal involving a conviction of “use of profane, threatening, or indecent language over the telephone,” an offense near and dear to our beloved decedent’s heart. Lofgren, you see, arrived at his girlfriend’s house to pick her up for a date, only to learn that another suitor had been swifter than he, and had won the race to fair lady’s hand – at least for the evening. When the damsel refused to see him because “I have company,” Lofgren reacted angrily, calling her a host of unmentionable and ungentlemanly names as he stormed away. For shame!

Later, Lofgren placed a phone call that resulted in his being prosecuted, again calling her foul names that we dare not recount here, out of deference to the still-warm corpse of our beloved companion. For those of you who are faint-of-heart, I entreat you not to click on the hyperlink in the previous paragraph of this sermon; your system may not be able to take the shock.

The statute, it seems, is narrower than would appear upon a first reading. It proscribes the use on the telephone of “obscene, vulgar, profane, lewd, lascivious, or indecent language,” and you must admit, that’s a pretty broad spectrum. But previous Supreme Court caselaw has limited the scope of the section (for constitutional reasons) to obscene language; the rest of that list is mere legal surplusage now. The question in this appeal was whether Lofgren’s outburst was obscene or not. If so, he’s guilty; if not, then he’s a free man.

In order to decide this issue, the court evaluates the definition of obscene language as set forth in another statute that helpfully supplies what Mr. Justice Stewart famously could not do for the term pornography. Obscenity in Virginia must relate to “the prurient interest in sex,” must go far “beyond the customary limits of candor,” and must have no serious value. So far, there is nothing in this analysis to trouble the sensibilities of our dearly departed.

But the next step must surely have proved fatal; the court describes, defines, and even explicates each foul term used by Lofgren (we can only assume that he repented of his indelicate speech in retrospect). No dashes; no asterisks; no innuendoes. The opinion is a four-letter-word festival.

In the end, the court determines that while the language may have been offensive, it was not obscene, so Lofgren’s conviction is overturned. But by now, the damage has been done; our beloved bulwark of decorum had by then experienced her paroxysmal death throes and lay still, never to rise again to cover up a nude statue or delete an expletive. We may all mourn her passing, and mark this day, my brothers and sisters, to remember the way the world of appellate opinions once was.

[We now return you to your regularly-scheduled appellate analysis.]

In Perry v. Commonwealth, we get to see how certain drug use affects one’s judgment. Perry and some companions decided to enjoy a stash of marijuana and PCP. In order to do so, they carefully selected a clandestine spot for their necessarily-private activity – the shoulder beside the Interstate highway in Arlington County.

Despite their care in selecting such a secluded location, our rocket scientists were nevertheless seen by a state trooper who was, alas, at least slightly-observant, and had been trained to check in on cars that are stopped on the side of the highway. When he approached, he found the windows down, the sunroof open, the unmistakable smell of marijuana smoke wafting out, and three presumably very mellow occupants. No doubt they smiled and waved as he approached.

After ascertaining that the driver had a suspended license, the trooper turned him over to a backup trooper and started to look after the two passengers. The first one showed all the signs of being high on PCP, including (no surprise here) incoherence. That passenger got out of the car, and doing so, dropped a vial containing genuine marijuana. That bought him the right to remain silent.

The trooper next turned to the final passenger, Perry. He, too, displayed the same outward signs, and in the subsequent trial, his lawyer admitted that his client was impaired at the time. The trooper patted him down for weapons and felt a bulge that pretty much matched the size and shape of the first passenger’s vial. The trooper then politely asked, “Would you mind showing what’s in your pockets?” Well, how could Perry refuse such a kind inquiry? He helpfully handed over his own vial, which featured similar contents.

The issue here is a motion to suppress, in which Perry contended that the officer’s pat-down didn’t meet the requirements for a Terry stop. The trial court ruled that it did, so it admitted the evidence and convicted Perry. And then the focus shifted, in a manner that has become increasingly familiar to appellate lawyers, particularly in the last few months.

On appeal, the Commonwealth argued for the first time that Terry analysis didn’t matter, because the officer had probable cause to make an arrest before the pat-down. Especially in light of the Supreme Court’s recent Whitehead opinion, Perry contended that the Commonwealth couldn’t make this argument for the first time on appeal. But today, the CAV finds that this is, indeed, one of those instances where right-for-the-wrong-reason analysis is appropriate. The court assumes without deciding that the pat-down didn’t comport with Terry, but it affirms anyway, because it finds that probable cause for an arrest existed. (Perry’s lawyer admitted that if probable cause existed, then the evidence was legally seized as a search-incident.)

I have written on several occasions recently about the interplay between the right-for-the-wrong-reason rule and the waiver rule. Here, the court notes that no additional evidentiary development would be necessary to determine whether probable cause existed. That makes the issue ripe for appellate consideration. If you’ve been following the discussion on this topic, you need to read this opinion.