[Posted October 20, 2009] The Court of Appeals today grants en banc rehearing in Startin v. Commonwealth. On September 8, a panel of the court affirmed Startin’s conviction for use of a firearm in the commission of a felony, where the “firearm” was actually a non-functioning replica. The question on rehearing will be whether such a replica is a firearm or not. As with all en banc rulings, the eventual opinion (after rebriefing and oral argument) will be published.

The court also hands down one original published opinion today, in Cauls v. Commonwealth. Cauls had the bad fortune to be present in a house when police arrived to serve an arrest warrant on the owner, a woman named Satkin. Ms. Satkin answered the door clad only in a tee shirt, so the arresting officer graciously allowed her to go back inside and dress more suitably for the occasion. Of course, since she was under arrest, the officer accompanied her inside.

The house turned out to be a target-rich environment for law enforcement. The officer immediately saw a digital scale and a white powder residue, and suspected cocaine. He asked the woman if he could search the place, but she had read up on her crim pro, so she declined. “Fine,” the officer indicated, “I’ll just get a warrant.”

The officer then conducted a “protective sweep” of the house, and here’s where we finally meet our hero, Cauls. You’ll observe him over there in bed, watching television. Cauls complied with the officer’s directive to show his hands; at that point, the officer told him that he was free to leave.

That’s nice as far as it goes, but Cauls was only wearing a pair of boxer shorts; he pointed to a nearby pair of pants and asked for them. The officer asked if the pants were his, and Cauls said yes. When he picked up the pants to hand them over, the officer noticed the tied-up corner of a baggie projecting from a pocket.

Did I mention a target-rich environment? The officer knew what he’d find even before he pulled the baggie out – crack cocaine. Bingo! Two arrests for the price of one.

Cauls moved to suppress the evidence, claiming that the officer unreasonably seized him, and that the crack wasn’t in the officer’s plain view. The trial court disagreed, so Cauls entered a conditional guilty plea. On appeal, the court begins by rejecting the first argument. The officer was lawfully in the residence to execute the warrant, and he was entitled to conduct the protective sweep for his own safety. But Cauls felt that by picking up his pants, the officer seized him. Unfortunately, Cauls is the person who asked for the pants. The only thing the officer had said before that was, “You’re free to leave.”

Now, there are certain circumstances, discussed in some very recent cases, where the statement, “You’re free to leave” rings pretty hollow, but this wasn’t one of them. The court finds that the officer didn’t seize Cauls merely by picking up his pants as requested.

Cauls fares better in his plain-view challenge. The panel today unanimously rules that there was nothing inherently incriminating about a projecting corner of a baggie (which was all the officer could see before he reached into the pocket). The court cites recent caselaw in which the Supreme Court has held that perfectly legitimate objects (such as a folded dollar bill) can’t form the basis of probable cause, no matter how much the officer suspects. All this officer had was a hunch. The hunch proved to be correct, but that’s not enough to justify this constitutional intrusion. The court thus remands the case for a new trial, sans the crack (which means there won’t be a retrial).

There are two additional points that are worth mentioning here. First, this case contains a very useful discussion of the plain-view doctrine, including its real purpose and reach. Criminal practitioners on both sides of the aisle would be well-advised to take the time to read this relatively short (11 pages) opinion to get a better understanding of the doctrine; the good stuff starts on page 5.

Second, I couldn’t help but wonder if the first issue might have been decided differently if one fact had been slightly changed. Suppose that instead of wearing boxers when the officer saw him, Cauls had been stark naked? How does the phrase, “You’re free to leave” grab you now? You can’t just get up and walk out without pants in that situation, or else the same officer will cuff you for indecent exposure as soon as you cross the threshold.

Perhaps there is a lesson here for would-be crooks: When one is lounging around, watching TV in a house where an arrest is going to take place, it’s noticeably better for one to be naked than to be wearing underdrawers. Alas; given the extraordinarily-small number of sophisticated crooks who follow this web site, I suspect that this eminently-sensible advice will be largely wasted.