[Posted October 6, 2009] What, did you think I was falling down on the job, ignoring all the published opinions out of the Court of Appeals the last two weeks? No way; I won’t abandon you. The court simply issued no published opinions the past two weeks, but we get two interesting ones today.

Criminal law
Rogers v. Commonwealth helps to define the affirmative act that supports a prosecution for an attempt to commit a crime. Attempt requires proof that the defendant formed an intent to commit the crime, and that he performed “some direct act toward its consummation, but falling short of the accomplishment of the ultimate design.”

Rogers and two confederates decided to rob a family in the family’s apartment. Figuring that the family would have cash handy, the robbers came to the building and watched the family go inside. The robbers then placed black bandanas over their faces, and knocked on the door. The victim had seen some suspicious-looking characters – those would be our suspects – lurking around, so instead of simply opening the door, he looked through the peephole and saw what looked like a mask and a gun. He then, quite sensibly, refused to open the door, telling his wife to call the police.

The impasse lasted a very few moments before the robbers gave up and fled, but not without being seen by responding police officers. The gendarmes gave chase and eventually stopped the getaway car, where they found the three perpetrators in possession of two black bandanas, but no guns; the weapons turned up in a brief search of the route, where the robbers had tossed them out of the car.

Sounds like they got the right guys, right? Well, they did; one of the three turned state’s evidence and ratted out his colleagues, telling the whole story. The sole issue on appeal is whether the evidence supported the conviction for attempted robbery, when the robbers decided to abandon their enterprise. And that, in turn, depends on whether they had performed “some direct act” toward committing the crime, as described above.

Rogers argued that his acts had merely been preparatory to the crime, now the initiation of it, but the CAV disagrees. Rogers went far beyond just planning or even setting things up; he went to the apartment armed with guns, put on a mask, and knocked on the victims’ door. He was only stopped by the victim’s decision not to open the door, and the court isn’t about to let him skate because of that.

The other criminal case presents a detailed analysis of a fairly straightforward question: Can the police search a passenger in a car that has been stopped for a tail light violation, when a police computer database showed that the passenger had been arrested a year earlier for illegally possessing a handgun? Today’s opinion is Smith v. Commonwealth.

The facts really were almost that simple. Two off-duty Richmond police officers, working security at a housing complex, stopped a car for this minor violation one day in September 2007. The officers got ID from the driver and passenger, and ran those names through a police computer check. There weren’t any outstanding warrants for either man, but the passenger’s name was in a Richmond Police Department database of persons who were listed as “probably armed” due to past drug or weapons arrests. A subsequent pat-down of the passenger revealed a small handgun.

The issue in this case is whether that much information is sufficient for a Terry stop-and-frisk. The trial court found that it was, but today, a unanimous panel of the CAV reverses that ruling. The opinion walks methodically through the analysis of this issue, focusing on the value of the police database’s listing of the passenger as being “probably armed.” The court finds that a stale arrest (the database didn’t list any disposition of the earlier charge; just the fact of arrest) doesn’t serve as the basis for a reasonable suspicion that the suspect is armed a year later.

The court distinguishes caselaw that you might find persuasive, at first blush, on the good faith exception to the exclusionary rule. In one such case, this year’s US Supreme Court decision in Herring v. US, the high court had approved the use of evidence seized in violation of the Fourth Amendment because police officers relied upon incorrect information obtained from another county. The exclusionary rule serves to deter sloppy or deliberate police acts, and punishing one police department for the mistake of another department wouldn’t serve that purpose. But in today’s decision, the information was improperly entered into the data base by Richmond police, making the entire transaction “in-house.”

This opinion is not going to sit well with police officers and those who care about their safety. Every officer wants to know as much as he can about potentially-armed suspects, and having a database like this one may save officers’ lives. Today’s ruling will no doubt be seen as an erosion of an officer’s protection. In my view, that opinion would be hasty; officers can still protect themselves, but evidence that’s seized as a result of protective pat-down searches can be excluded under circumstances like this.